Terms and Conditions

Terms and Conditions of generativ GmbH, Zurich. Issued March 29th, 2019.
The following terms and conditions apply to all offers and closed contracts currently and in the future by generativ GmbH.

1 Contract

1.1 A contract shall come into existence with the issue of our order confirmation or with the acceptance of the delivery or service by the customer.

2 Prices and payment terms

2.1
All prices are quoted from the registered office of the contracting office plus VAT. We calculate services, subject to a different agreement, according to time expenditure. The time required also includes trips to and from the customer’s branch.

2.2
Our prices are based on the personnel, material and license costs at the time of the conclusion of the contract. In the event of a subsequent change in these costs, we are entitled, subject to a fixed price agreement, to adjust the agreed prices appropriately if there is a period of more than six weeks between the conclusion of the contract and the performance of the service and we are not responsible for any cost increases.

2.3
Invoices are due on the invoice date and payable without deduction within 14 calendar days.

2.4
If the customer is more than 14 days in arrears with a payment, we may immediately make our total claim due. We continue to be entitled to cease further work on orders that are still in progress and to make the processing of all orders of the customer dependent on his being able to make advance payment or security at his option. If we have to consider our claims as being endangered due to the economic circumstances of the customer, we are entitled to withdraw from the contract.

2.5
Costs for services that we provide due to incorrect or incomplete customer information or insufficient cooperation of the customer shall be borne by the customer.

2.6
The customer may set off against our claims only with undisputed or legally established counterclaims.

2.7
A right of retention from previous or other transactions of the current business relationship is expressly excluded and therefore can not be asserted. Exempted from this is the right of retention because of undisputed or legally established claims.

3 Delivery dates

3.1
In the event of changes or additions to the scope of services after the conclusion of the contract, the agreed delivery dates and deadlines shall be extended appropriately unless a special agreement is made.

3.2
If the customer does not fulfill his contractual obligation to cooperate or not in time, the agreed delivery times shall be extended accordingly.

3.3
A delivery deadline is met if the delivery item is handed over to the customer, or the readiness for shipment has been established and communicated.

3.4
If we can not meet the agreed delivery date for reasons of hindrance that we are not responsible for, we will inform the customer immediately. The customer is not entitled to resign in these cases. If it can not be foreseen in these cases that we will be able to render our services within a reasonable period of time, but at the latest within four months, both contractual parties are entitled to withdraw from the contract. The same applies if the reasons for hindrance still exist after the expiration of four months after our notification. If the reasons for the hindrance for us were already evident at the time of conclusion of the contract, we are not entitled to withdraw.

4 Passage of risk

4.1
The risk of accidental loss and accidental deterioration passes to the customer as soon as the delivery item has been handed over to the customer or brought to the transport. This applies regardless of whether the shipment is made from the place of performance and who bears the transport costs. If the customer is in default of acceptance, the risk is already transferred to the customer upon notification of readiness for shipment. Insofar as acceptance has to be made, this shall be decisive for the transfer of risk.

4.2
Partial deliveries and services are permissible insofar as this is reasonable for the customer.

5 Obligations of the customer

5.1
The customer undertakes to provide, within his area of ​​responsibility, free of charge all the conditions necessary for the performance of our services. This includes, in particular, that the customer provides work space for our employees as required, including all necessary work equipment, insofar as this is not to be procured by us, and provides other information (documents, test data) necessary for the production of the work. Additional costs, which are due to insufficient cooperation of the customer, shall be borne by the customer.

5.2
The customer will name the necessary knowledgeable staff who can provide all the information needed to carry out the contract and make or arrange decisions themselves.

6 Retention of title

6.1
All contractual services remain our property until complete fulfillment of all claims arising from the business relationship with the customer. This also applies to any data configuration data transferred to data media or transmitted online as well as to all accompanying materials.

6.2
The customer is obliged to mark the goods subject to retention of title. In the case of third-party access to the reserved property, in particular in case of seizure, the customer must notify us immediately. The customer bears all costs that have to be expended for the removal of the access and for the replacement of the goods delivered by us.

6.3
The customer is entitled to process, modify or sell the reserved goods in the ordinary course of business, as long as he is not in default and our license conditions do not conflict with this. Pledges or collateral assignments are inadmissible. For the sake of security, the customer hereby assigns to us in full the claims arising from the resale or any other legal reason (insurance, tort) with regard to the reserved goods. We authorize him revocably to collect the claims assigned to us for our account in his own name. At our request, the customer will disclose the assignment and provide us with the information and documents necessary for the collection of the claim.

6.4
If the reserved goods are combined with other objects, the reserved property will continue to the newly arising object. As a result, we acquire a co-ownership share in the ratio of the value of the reserved goods (invoice value) to the value of the remaining part of the connected goods. If one of the connected items is to be regarded as the main item, the customer transfers co-ownership to us in proportion of the value of the goods delivered by us (invoice value) to the value of the remaining part of the connected item. The customer keeps the new thing regarding our co-ownership share free of charge. If the reserved goods continue to be sold as part of the new item, the advance assignment agreed in Item 6.3 shall only apply in the amount of the invoice value of the reserved goods.

6.5
If the realizable value of the securities to which we are entitled under the above provisions exceeds our claims by more than 10%, we shall be obliged to release securities of our choice with regard to the excess value.

7 Claims for defects

7.1
The rights of the customer in the case of defects in the services provided by us are governed by the statutory provisions with the proviso that the customer can initially only demand rectification. We will either repair or replace the defective parts of our choice or develop alternative solutions.

7.2
If the rectification fails or is unreasonable for the customer, the customer may reduce the remuneration or withdraw from the contract. In addition, the customer may claim damages in accordance with Section 8.

7.3
In the case of legitimate complaints, we are obliged to bear the labor and material costs necessary for remedying the defect. If we change materials supplied by us in the course of repair work, we acquire ownership of the replaced parts.

7.4
If the defect is based on a third-party product, we are entitled to assign our warranty claims against our upstream supplier to the customer. In this case, we can only be claimed from the above provisions if the customer has asserted the assigned claims against the pre-supplier in court. In the event of a judicial assertion of the assigned claims, the customer undertakes to notify us of the dispute and to obtain our consent in all agreements with the subcontractor regarding the assigned claims.

7.5
No liability is taken for damages resulting from improper installation or handling or improper use by the customer or from natural wear and tear. No liability is taken for damages resulting from improper installation or handling or improper use by the customer or from natural wear and tear.

7.6
If notified defects can not be found during a check, the customer bears the costs of the check. This also applies if errors can be detected, but are due to faulty operation or malfunctions that the customer is responsible for.

7.7
The warranty period for material defects is one year from the transfer of risk according to Section 4.1, unless the object of delivery is a thing that has been used in accordance with its customary use for a building and has caused its defectiveness; In this case, the statutory limitation period applies. Claims for damages remain unaffected in accordance with Section 8.

8 Liability

8.1
For a culpable violation of our essential contractual obligations we are liable according to the legal regulations. Insofar as we are neither guilty of grossly negligent nor deliberate behavior, we are only liable for typically occurring, foreseeable damage.

8.2
In all other cases, we are liable if a damage has been caused by one of our legal representatives or by a vicarious agent intentionally or through gross negligence.

8.3
In case of a guarantee as well as for damage from the injury of the life, the body or the health we are liable in accordance with the legal regulations.

8.4
The liability in accordance with the product liability law remains unaffected.

8.5
Otherwise, claims for damages due to breaches of duty against us are excluded.

9 Copyrights and other intellectual property rights

9.1
If we leave the customer with our offer cost estimates, documents, pictures, etc., they remain our property. If these documents are copyrighted, we reserve all copyrights. The customer may use these documents only for the examination of our offer, not copy them and give them to third parties neither in the original nor in copy. He will give it to us at any time upon request.

9.2
The customer will not eliminate existing markings and trademark notices in the software, but may also include them in copies made.

10 Final provisions

10.1
We are entitled to commission third parties with the performance of the services to be performed by us.

10.2
Swiss law applies.

10.3
The place of fulfillment for all obligations of both parties is our registered office.

10.4
The place of jurisdiction for all legal disputes in connection with this contract is determined by our registered office. We reserve the right to take further legal action.

10.5
The invalidity of individual provisions of this contract shall not affect the validity of the remaining provisions and the existence of the contract. The invalid provision shall be replaced by a provision which comes as close as possible to the commercial content of the invalid provision insofar as non-dispositive statutory law is applied. The same applies in the case of a gap.

Zurich in March 2019