JMC Software AG
General terms and conditions
Please note: Only the German original of these General Terms and Conditions of JMC Software AG is legally binding. The English translation is provided for information purposes only and has no legal force. By accepting these General Terms and Conditions, you automatically accept the German original.
1 Scope of application
1.1 These General Terms and Conditions ("GTC") govern the business relationship between JMC Software AG, (hereinafter "JMC") and its customers. They are applicable as soon as Customer obtains services or products from JMC and form an integral part of any contract between JMC and Customer. They shall also apply to all future relationships between the two parties without the need for an express confirmation each time.
1.2 The Customer expressly waives its own General Terms and Conditions and fully accepts the present GTC. The use by the Customer of its own order confirmations shall not invalidate this provision, regardless of any provisions to the contrary on said order confirmations.
1.3 Deviations from these GTC shall only be valid if expressly agreed in writing. Changes to these GTC by JMC are possible at any time; the new version of the GTC shall apply to all contracts concluded after its entry into force.
2 Contract structure and conclusion
a. The contract between JMC and its customers consists of a contract document and these GTC. The contract document may be an offer accepted by Customer or a written contract in the strict sense. It contains the commercial and technical specifications.
b. The contract between JMC and Customer shall be concluded by Customer's acceptance of the offer made by JMC or by both parties signing a separate written contract document. The acceptance of the offer can also be made by acting without contradiction, namely by the customer accepting or using the services of JMC.
c. Unless otherwise stated, offers from JMC are valid for 30 days.
Services, duties to cooperate and remuneration
3 Scope of the service
3.1 JMC shall provide the services described in the Contract Document. Services not explicitly listed in the contract document are not included in the scope of services and shall be charged separately according to time and effort. The documents belonging to the offer (illustrations, brochures, etc.) are only relevant if they are expressly designated by JMC as binding.
3.2 JMC shall fulfill its contractual obligations carefully and professionally in accordance with the contractual service description. JMC may engage subcontractors but shall remain fully responsible to Customer for the performance of the Services.
3.3 Deadlines for delivery, installation and commissioning are indicative and not binding without express assurance.
4 General cooperation obligations of the customer
4.1 Customer shall ensure that all necessary duties to cooperate are performed in due time, to the extent required and free of charge for JMC.
4.2 Customer shall provide JMC in due time with all specifications required for the performance of the contract. It shall provide JMC with the office space and equipment required for the performance of the service as well as competent contact persons. Unless JMC has been expressly commissioned with the data protection (backup), this shall be the sole responsibility of Customer.
4.3 Any further obligations of the customer to cooperate shall be described in more detail in the contract document.
4.4 If Customer fails to perform a required duty to cooperate, fails to perform it in time or fails to perform it in the agreed manner, Customer shall be warned by JMC. The consequences arising from the violation of the duty to cooperate (e.g. delays, additional expenses, etc.) shall be borne by Customer.
5.1 Customer undertakes to pay for the services of JMC the compensation specified in the Contract Document. The remuneration is exclusive of VAT.
5.2 Invoices are due for payment without deduction within 15 days after the invoice date. Upon unused expiry of the payment period or the due date, Customer shall automatically be in default without any reminder on the part of JMC being required. Late payment shall be subject to interest at the rate of five percent (5%) per annum.
5.3 If Customer is in default with the payment of invoices, JMC may suspend its deliveries until all outstanding amounts have been settled.
5.4 Offsetting by Customer shall only be permitted with claims acknowledged by JMC in writing or legally established.
6 Intangible property rights
6.1 JMC shall be entitled to the rights to the work results created during the performance of the contract. Customer shall receive a non-exclusive right of use and exploitation to these work results, unlimited in time and place.
Warranties and defects in performance
7.1 If the failure to meet a binding deadline is due to obstacles for which JMC is not responsible, the deadline shall be extended accordingly.
7.2 If JMC is responsible for the failure to meet a binding deadline, customer shall first set JMC a reasonable grace period of at least 30 working days for subsequent performance. If the grace period is also not complied with, customer may insist on performance of the contract and set further grace periods for subsequent performance or, if JMC is in default by more than 60 working days in total, withdraw from the contract. Those services (or parts thereof) which have already been provided in accordance with the contract and which can be used by the customer as such in an objectively technically and commercially reasonable manner shall be remunerated. Any withdrawal from the contract shall not affect these services; the corresponding contractual provisions shall continue to apply to them.
8 Warranty of quality and rights in respect of defects
a) Third-party products
8.1 For third party products (all hardware as well as third party software supplied by JMC separately or integrated into its own services or products), the warranty shall be governed exclusively by the warranties granted by the respective manufacturers/suppliers or licensors. This applies to the scope of performance, the warranty period, the conditions for asserting the warranty and all other rights of the customer.
8.2 With respect to JMC, these warranty rights for third-party products shall exclusively consist in JMC claiming the warranty against the manufacturer/supplier or licensor on behalf of the customer. If the manufacturer/supplier or licensor does not voluntarily comply with its warranty obligation, JMC shall assign the warranty rights to Customer for legal enforcement.
b) Own products of JMC
8.3 JMC warrants that its products and services, when used in accordance with the contract, have the warranted characteristics and are not afflicted with defects which nullify or substantially limit their suitability.
8.4 If there is a defect, customer may, at JMC's option, initially only demand rectification of the defect or replacement delivery.
8.5 If two attempts at rectification or replacement deliveries fail due to the same defect, the customer may:
8.5.1 continue to demand performance, or
8.5.2 demand a reasonable price reduction, or
8.5.3 if there is a significant defect according to clause 8.6, withdraw from the contract.
8.6 Substantial defects shall be deemed to exist if the products, when used in accordance with the contract, do not have the warranted characteristics or are so defective that they are unusable for the customer.
8.7 The warranty shall not apply if the customer modifies the hardware or software itself or has it modified by third parties and cannot prove that the defects complained of were not caused in whole or in part by such modifications and that the rectification of defects is not impeded by the modifications. In addition, the warranty shall lapse if the customer fails to properly fulfill its obligations to cooperate in accordance with clause 4.
8.8 Notifications of defects shall be made in writing within the notification periods specified in clause 11 for purchase contracts or clause 12 for contracts for work and a comprehensible description of the symptoms of the defect. The customer's claims for defects shall lapse if a defect is not notified in due time.
8.9 The Customer's rights in respect of defects shall become time-barred within six months of acceptance of the Services or installation or acceptance by the Customer if installation has been waived.
c) common provisions
8.10 All warranties and rights in respect of defects not expressly set out above are excluded to the extent permitted by law.
9 Legal guarantee
9.1 JMC warrants that its products and services do not infringe any intellectual property rights of third parties.
9.2 If a product preferably a service or a part thereof is the subject of an action for infringement of industrial property rights, JMC may, at its option, either procure for Customer the right to use the item free of any liability for infringement of intellectual property rights, replace the product by another which fulfills the essential contractual features, modify the product so that it no longer infringes any intellectual property rights, or, if none of the above options is feasible at commercially reasonable expense, take back the product and refund the purchase price less amortization on the basis of a five-year straight-line depreciation.
9.3 If third parties assert claims against Customer due to infringement of property rights allegedly belonging to them, JMC shall conduct the defense at its own expense and bear any costs and damages imposed on Customer by a final court judgment if customer (i) immediately notifies JMC in writing of the claim raised and (ii) authorizes JMC to conduct the defense, including the conclusion of a settlement, and supports JMC in this to an appropriate and reasonable extent and (iii) the third party's claim is based on the fact that the intended use of the unmodified product or service infringes a property right existing in Switzerland or constitutes unfair competition.
10.1 JMC shall be liable for culpably caused direct damage incurred by Customer in connection with the contractually agreed performance of services. Liability for indirect damages and consequential damages, such as loss of profit, additional expenses, additional personnel costs, unrealized savings, claims of third parties or loss of data, etc., is excluded.
10.2 JMC shall not be liable for damage caused by software errors of software not produced by JMC. Likewise, JMC shall not be liable for damage caused by malware such as computer viruses or by cyber-attacks, provided that JMC had taken appropriate protective measures in its area of responsibility according to the state of the art to defend against them.
10.3 Liability shall be limited to 30% of the actual damage incurred, but not more than the amount of the annual remuneration under the contract concerned and up to a maximum amount of CHF 100,000.
10.4 The limitations of liability in this clause 10 shall not apply to personal injury and not insofar as JMC has acted intentionally or with gross negligence or insofar as mandatory statutory provisions conflict therewith.
Special provisions for individual contract types
11 Special Provisions for the Supply of Goods and Licenses
11.1 The provisions of this Clause shall apply if JMC supplies goods or licenses to Customer based on a purchase contract.
11.2 Unless expressly agreed, installation is not part of the scope of services.
11.3 Customer shall inspect the object of purchase within 10 days after delivery. In the case of installation by JMC, the period shall not begin until installation has taken place. Customer shall notify JMC in writing of any defects found within this period.
11.4 Defects which could not be detected during the inspection despite reasonable care must be notified to JMC in writing within 10 days of their discovery.
11.5 If a defect is present, customer may assert its defect rights in accordance with clause 8.
11.6 The scope of the permissible use of software shall be governed by the license provisions of the software manufacturer.
12 Special provisions for the creation of works
12.1 In case of services under a contract for work and services by JMC, a joint inspection shall take place prior to acceptance.
12.2 JMC shall invite customer to the test in due time by notifying customer of the readiness for acceptance. A record of the inspection and its result shall be drawn up and signed by both parties. Partial acceptances are also possible within the contractual framework. Unless otherwise agreed, acceptance shall take place within 10 days after JMC's notification of readiness for acceptance. If the acceptance is delayed by the customer beyond this period and no defects are notified in writing within the period, the acceptance shall be deemed to have taken place. Likewise, acceptance shall be deemed to have taken place when the customer commences operations or makes changes to delivered products.
12.3 If insignificant defects are revealed during the inspection, acceptance shall nevertheless take place upon completion of the inspection. JMC shall remedy the defects found and notify Customer of their remedy.
12.4 If significant defects within the meaning of clause 8.6 are revealed during the inspection, the acceptance shall be postponed. JMC shall remedy the defects identified and invite Customer to a new inspection. If the acceptance cannot take place a second time due to the same defect, customer may assert its defect rights pursuant to clause 8.5 (furthermore performance, reduction or, in case of substantial defects, rescission of the contract).
12.5 Defects which were not recognizable at the time of acceptance despite reasonable care must be notified to JMC in writing within 10 days after their discovery.
13 Special Provisions for Support Services
13.1 The provisions of this clause shall apply if JMC provides support services to customer.
13.2 JMC shall provide the support services with due care. However, JMC cannot guarantee that the supported products can be used uninterruptedly and without errors.
13.3 All maintenance contracts with third parties for the customer's hardware and software shall be at the customer's expense.
13.4 The support services shall be provided by JMC during the support hours. Unless otherwise agreed, the support time shall be the time from Monday to Friday from 08.30 - 11.30 and 13.30 - 17.00 (excluding general Sundays and public holidays at the location of the branch office of JMC). At the request of the customer and for a surcharge on top of the normal rates, JMC will start its services outside the support hours or continue work that has been started. The surcharges are defined as follows:
• Monday to Friday, 23.00 to 07.00: 50%
• Weekend / holidays, 00.00 to 24.00: 100%.
14 Special Provisions for Microsoft Online Services
14.1 The provisions of this clause shall apply if Microsoft online services are part of the scope of services.
14.2 By using Microsoft online services such as Office 365 or Microsoft Azure, customer agrees to the Microsoft Cloud Agreement https://docs.microsoft.com/en-us/partner-center/agreements.
14.3 Services in the field of IT security.
14.4 JMC shall provide services in the area of IT security with all due care and using state-of-the-art tools. However, in view of the number, the technical possibilities and the criminal energy of potential attackers as well as the various vulnerabilities lying outside the IT (e.g. employees of Customer deceived by phishing), it cannot be excluded even with highly developed security measures that IT security incidents occur which may have far-reaching consequences (e.g. loss of data, interruption of operations). By using JMC's IT Security Services the risk of an IT Security Incident can therefore be significantly reduced, but JMC cannot guarantee that all weaknesses, compliance problems or vulnerabilities will be detected, that IT Security Incidents can be completely avoided, that they will be detected immediately and that occurring cases will be harmless. Accordingly, Customer expressly acknowledges that no specific success is owed by JMC within the scope of IT security services, but only diligent action. Customer represents and warrants that it has the necessary rights, consents, and authority to use JMC's IT Security Services.
To the extent required by legal requirements or under contracts entered into by customer, customer is in particular obliged to obtain consents from its IT service providers and business partners as well as from the natural persons concerned accepting that JMC performs security tests affecting their systems and/or data (which may include techniques such as network probing, port scanning, penetration testing, configuration audits, brute force attacks and the like, but not, except with Customer's prior written consent, distributed denial of service (DDoS) attacks).
15.1 The parties undertake to maintain confidentiality with regard to facts and data, including the associated documents and data carriers, which become known to them in connection with this contract and which are neither public knowledge nor generally accessible. This obligation shall also be imposed on commissioned third parties. Confidential data shall also include analyses, summaries and extracts which have been prepared on the basis of confidential data. In case of doubt, facts and data are to be treated confidentially. The confidentiality obligations already exist before the conclusion of the contract and also after the termination of the contractual relationship or after the performance of the agreed service. Statutory disclosure obligations remain reserved.
15.2 Any breach of this confidentiality clause obliges the customer to pay a contractual penalty of CHF 50,000 (Swiss francs fifty thousand) and to compensate the further damage exceeding the contractual penalty amount. JMC may cumulatively demand the actual fulfillment of the obligation under the secrecy clause and payment of the contractual penalty together with compensation for further damage.
16 Severability clause
16.1 If any provision of the Agreement is invalid or unenforceable, such invalidity or unenforceability shall not affect the validity of any other provision of the Agreement. The invalid or unenforceable provision shall be replaced by a valid provision which meets the economic purpose of the invalid or unenforceable provision as closely as possible.
17 Written form
17.1 Agreements between the parties (offers, acceptances, orders, etc., as well as amendments and supplements thereto) shall only be valid if they are recorded in writing. The use of faxes shall be deemed equivalent to the written form.
18 Applicable law and place of jurisdiction
18.1 The contract shall be governed by Swiss substantive law.
18.2 The provisions of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980) are excluded.
18.3 Exclusive place of jurisdiction is the registered office of JMC.