Terms and Conditions (GTC)
Issue June 24, 2021
These “General Terms and Conditions” (hereinafter “GTC”) regulate the conclusion, content and processing of contracts between BRASCOM GMBH, BRASCOM TECHNOLOGY CONSULTING LLC or BRASCOM TECHNOLOGY CONSULTING LTDA and the customer.
In this document, the purchaser (work contract), the client (simple order) and the buyer (sales contract) are called “customer” and the entrepreneur (work contract), the contractor (simple order) and the seller (sales contract) “BRASCOM“.
In detail, the framework contract contains the basic provisions of the cooperation between the customer and BRASCOM. Individual contracts also regulate the specific provisions of the work to be produced (work contract), the service to be provided (simple order) or the object of purchase (purchase contract). Framework contract and service level agreement (s) (hereinafter “SLA”) as well as any other agreements (hereinafter “special agreements”) between the customer and BRASCOM are referred to as the “contract”. Individual contracts are, for example, SLAs, project contracts, orders and small orders. The provisions of the framework contract and the individual contracts together form the content of the contract and are referred to as “contractual performance”.
2 Scope and Validity
The terms and conditions apply, unless otherwise agreed in writing in the contract. General terms and conditions of the customer apply insofar as they are expressly recognized in the contract.
Should there be any contradictions between the present GTC and the contract, the regulation contained in the contract shall apply.
In addition to the terms and conditions and contractual provisions, the provisions of the Swiss Code of Obligations apply.
“IT system” means the entirety of equipment, including hardware, software, systems, cables and facilities, which is provided by BRASCOM in order to make the contractual service available to the customer.
“Customer system” means the totality of equipment, including hardware, software, systems, cables and facilities, which BRASCOM is made available by the customer and used together with the IT system so that the contractual service can be provided.
4 Offer and conclusion of the contract
Offers are valid for 30 days. The offer is accepted with the legally valid signature of the contract or digital signature via the BSX system.
5 Execution and modification of the contractual service
The contract is executed using generally recognized IT methods and to the best of our knowledge and belief. The contractual performance corresponds at all times to the relevant official regulations and relevant technical regulations.
Each party can request a change to the contractual service at any time in writing. This change must be approved by the other party. The corresponding modalities of the change are to be recorded in writing in an addendum to the contract.
6 Customer’s duty to cooperate
The customer creates the prerequisites in his area so that BRASCOM can optimally provide the contractual service. He has to inform BRASCOM about technical or other facilities and circumstances which could jeopardize the contractual performance (contractual performance). The customer provides his cooperation services at his own expense.
Hardware and software to be provided or operated by BRASCOM within the framework of the agreed contractual services is specified and procured by BRASCOM. The customer’s requirements (e.g. performance, availability) are taken into account.
8 House installation, IT systems
The house installation is the responsibility of the customer. If IT systems are placed at the customer site, the customer provides the stand and the power supply free of charge. The customer is responsible for the ambient conditions
Room responsible (room temperature +5 to + 30 ° C; humidity 10 – 90% RH non-condensing).
IT systems or parts thereof in the custody of the customer remain the property of BRASCOM. They are neither accessories nor part of the building in which they are installed.
9 Safety Regulations
The customer must ensure at all times that the customer system complies with the relevant national safety standards and must comply with them at all times.
BRASCOM reserves the right to interrupt or discontinue the connection to all customer systems or the provision of the contractual service if this could result in personal injury or property damage or if the quality of the contractual service would be significantly impaired. BRASCOM will inform the customer immediately in these cases.
10 Testing and acceptance
BRASCOM notifies the customer of the provision of the contractual service (installation, commissioning). Together with him, the contractual performance is checked and the acceptance takes place within a reasonable period of time, which is recorded in writing in a protocol. BRASCOM then approves the contractual service.
11 Personnel deployment and provision of services by third parties
BRASCOM only employs carefully selected and well-trained staff. At the request of the customer, it replaces people within a reasonable period of time who do not have the specialist knowledge required to fulfill the order or who impair the fulfillment of the order.
BRASCOM is entitled to have services carried out by third parties. It is responsible for the careful selection, instruction and monitoring of third parties.
12 Remuneration and terms of payment
The amount of the remuneration and the terms of payment are based on the contract. The remuneration is exclusive of the statutory value added tax.
Unless otherwise agreed, invoices are to be paid without any deductions no later than 30 days from receipt of the invoice.
13 Property rights and rights of use
The property rights and rights of use to the IT system made available to the customer by BRASCOM as part of the contractual service or parts thereof remain with BRASCOM resp. with their provider. The right to lend or reproduce and pass on the IT system or parts of it to third parties is expressly excluded. The transfer of the licenses requires the consent of BRASCOM. Parts of the IT system that are not licensed by BRASCOM are subject to the manufacturer’s license terms.
For the customer resp. The customer is responsible for the property rights and rights of use to which he is entitled to the customer system. He allows BRASCOM to use these rights within the scope of his power of disposal, insofar as they are necessary for the provision of the contractual service.
The customer undertakes not to use the contractual service in any way that would in any way lead to a violation of the property rights and rights of use of BRASCOM resp. whose agency can lead.
14 Patent and Copyright Protection
BRASCOM undertakes to defend the customer in legal disputes at their own expense, provided that these are based on the fact that the use of the contractual service provided by BRASCOM constitutes a direct infringement of a copyright or a patent.
BRASCOM exempts the customer from any liability for damages and costs to which he is legally sentenced on the basis of such a claim. The prerequisite for this is that the customer notifies BRASCOM immediately of the assertion of such a claim, grants it the power to independently defend against the claim and its settlement, provide all available information at its own expense and provide it with all support and power of attorney to defend it granted such a claim and did not settle such legal disputes by way of settlement without the prior consent of BRASCOM.
BRASCOM is not liable for acts of infringement or claims that can be traced back to the use of an IT system in connection with other systems, software or data that do not originate from BRASCOM.
BRASCOM guarantees a faithful and careful execution of the contractual performance according to generally recognized IT methods and to the best of its knowledge and belief. As long as defects in the contractual service can be remedied by repair or replacement within a reasonable period of time, the customer can neither demand a reduction in the remuneration nor a cancellation of the contract.
If repairs fail, BRASCOM will reimburse a reasonable amount of the remuneration. There is no right to a reduction in the remuneration if the defect is due to force majeure or negligence (intent, gross or slight negligence) on the part of the customer.
BRASCOM is liable to the customer for damage caused intentionally or negligently in connection with the provision of the contractual service. As far as legally permissible, BRASCOM excludes liability for indirect and consequential damage, such as lost profit, unrealized savings, business interruption, additional expenses, claims by third parties and loss of data.
In the case of alleged liability to BRASCOM, the customer is obliged to notify BRASCOM of the damage immediately, otherwise a waiver of compensation is accepted. He is also obliged to take all reasonable measures to minimize such damage or its effects.
The customer is liable for all damage caused intentionally or negligently that arise as a result of the careless use of the IT system.
17 Force Majeure
The contractual partners are not liable for non-fulfillment of the contract if this is due to events or circumstances of force majeure for which the contractual partners are not responsible and the contractual partner concerned notifies this immediately and makes all reasonable efforts to fulfill the contract.
18 Confidentiality and data protection
The parties are obliged to treat as strictly confidential all information made available to them in the performance of the contractual service as well as knowledge that they obtain on the occasion of cooperation – e.g. disclosed plans, samples, drawings, trade or company secrets, business and manufacturing secrets. You undertake to use, exploit or pass on to third parties such confidential information only with the express written consent of the other contracting party outside of the contractual relationship.
The confidentiality obligation does not apply to information which the other contracting party has demonstrably received or received from third parties, or which was already generally known at the time the contract was concluded or subsequently became generally known without the publication being based on a violation of this confidentiality agreement.
This obligation remains for both parties even after termination of the contract for a further two years from the end of its term.
BRASCOM is entitled, within the scope of the purpose of the contract concluded with the customer, to process the personal data entrusted to it in compliance with data protection regulations or to have it processed by third parties. BRASCOM will process the customer’s personal data in accordance with the customer’s written instructions in accordance with the statutory data protection provisions. For his part, the customer assures BRASCOM of legal responsibility for the data that he has provided to BRASCOM for processing.
BRASCOM is entitled to include the customer on its reference list in consultation.
19 Prohibition of assignment
The customer cannot assign claims from the contract to third parties without the prior written consent of BRASCOM.
20 final provisions
Changes to these terms and conditions must be made in writing to be effective.
Should a provision of these terms and conditions be or become ineffective or have a loophole, the validity of the remaining provisions remains unaffected. In such a case, the parties are obliged to contribute to the creation of provisions through which a legally effective result is achieved that comes as close as possible to the ineffective or missing provision.
21 Applicable law and place of jurisdiction
The contractual relationship is subject to Swiss law. The United Nations Convention on the International Sale of Goods of April 11, 1980 does not apply. Disputes between BRASCOM and the customer will be judged by the ordinary courts, unless the parties agree on an arbitration tribunal.
The exclusive place of jurisdiction is Frauenfeld.
BRASCOM and the BRASCOM logo are registered trademarks of BRASCOM GMBH, BRASCOM TECHNOLOGY CONSULTING LLC or BRASCOM TECHNOLOGY CONSULTING LTDA.