Terms and Conditions

1. Scope

Automatify AG, Zwirnereistrasse 22, 8304 Wallisellen ("Automatify") provides services in the field of information technology, either as consulting services or as work services. The exact description of the contractual services, their type, the schedule, prices, payment terms and the customer's project-specific duties to cooperate are set out in writing in a proposal (with any annexes, "Proposal").

These General Terms and Conditions of Automatify for IT services ("Terms") apply to all future engagements between the parties unless expressly agreed otherwise in the Proposal. Conflicting terms do not become part of the contract, even if Automatify does not expressly object.

Unless stated otherwise, Automatify's proposals are valid for 30 days. The engagement ("Engagement") is formed upon written acceptance of a proposal.

2. Automatify's Services / Place of Performance

As consulting services, Automatify provides: analyses, project management, consulting, training, coordination, evaluation, strategic planning, creation of business blueprints and concepts, support with parameterisation, software development or implementation, and assistance with acceptance testing. Consulting services are directed and controlled by the customer, who is solely responsible for the results achieved with the help of the consulting.

As work services, Automatify provides: program development, program adaptation and migrations based on detailed specifications. Work services are carried out under Automatify's direction, which is responsible for achieving the results according to the specifications defined in the relevant engagement.

Automatify is entitled to engage group companies and third parties as subcontractors, for whose careful selection, instruction and supervision it is responsible. It may provide services of the same or similar kind to other customers.

The place of performance is Automatify's registered office. The engagement may specify a different place of performance. Travel time counts as working time.

3. Customer's Duties to Cooperate

The customer ensures that all cooperation required for Automatify's services is provided in a timely manner and free of charge to Automatify. The customer is obliged to actively cooperate in the provision of the services.

The customer's duties to cooperate include, in particular, releasing competent staff, making timely coordination and decisions, providing workspaces, IT systems and infrastructure, providing computing time, test data and data capture capacity, providing the required data and documents of sufficient quality, providing access to the necessary premises at all times, and informing Automatify of any circumstances relevant to the provision of its services.

The customer appoints a person responsible vis-à-vis Automatify for giving binding instructions.

The customer ensures compliance with licensing terms for all products it procures. No liability claims may be raised against Automatify for infringement of proprietary rights arising outside the direct work product. The customer will independently defend against third-party liability claims vis-à-vis Automatify where licence infringements are alleged against Automatify or its customers.

Delays and additional effort caused by improper fulfilment of cooperation duties are borne by the customer and may be invoiced separately by Automatify.

4. Fees

Automatify invoices its services on a time-and-materials basis according to its then-current price list, unless a different billing model (e.g. fixed price) is agreed in the relevant engagement.

As a rule, a specific number of person-days (1 person-day = 8 hours) is agreed; references to weeks or months are only indicative of the time expected to be needed for the specified activity.

Consulting time provided is evidenced by a timesheet signed by the customer. Consulting time is the time during which the Automatify employee works for, or is available to, the customer, regardless of the location where the services are provided.

Unless agreed otherwise, fees are exclusive of travel, accommodation and meal expenses, as well as other incidental costs of Automatify such as taxes (in particular VAT), duties and fees. These are invoiced separately to the customer.

All invoices are payable within 30 days of the invoice date. No cash discount is granted. The customer is in default without further reminder upon expiry of the payment term. Automatify is entitled to charge the statutory default interest and expenses from the point of default. If Automatify's payment claims appear at risk, services may be suspended or made conditional on advance payment.

The customer may only set off claims against Automatify with its own claims if Automatify expressly consents in writing or if the claim has been established by a final judgment. The customer may not assign claims against Automatify to third parties without Automatify's written consent.

5. Schedule

Automatify will use its best efforts to meet the planned schedule. Any deviations from the schedule should be identified as early as possible and communicated in writing. The corresponding adjustments are made by mutual agreement.

If Automatify, through its own fault, fails to meet a deadline expressly agreed as binding in the engagement, the customer will set a reasonable grace period. If Automatify fails to meet this grace period, the customer may, after a second reasonable grace period has expired without result, withdraw from the contract in whole or in part. Reminders and grace period notices from the customer require written form to be effective. Services already essentially rendered in accordance with the contract and usable by the customer in a reasonable manner must be paid for in full.

If schedule delays are caused by the customer, third parties, or events outside Automatify's control (natural events, mobilisation, war, riot, epidemic, accidents, staff unavailability without fault, significant operational disruptions, labour disputes, late or defective deliveries, or official measures), the schedule is automatically extended by the duration of the impediment plus a reasonable ramp-up period thereafter. Automatify is entitled to invoice the documented additional effort resulting from the delay.

6. Change Management

The parties may propose changes to the agreed services or scope of work at any time during the performance of an engagement.

If the customer requests a change, Automatify will notify in writing, as soon as possible, whether the change is feasible and its impact on the provision of services, in particular on price and schedule. Automatify may defer changes for as long as its other projects require. Change requests from Automatify are likewise accepted or rejected by the customer without delay. While a change proposal is being reviewed, Automatify continues its work only to the extent reasonable. Resulting schedule changes are deemed accepted by the customer. Every change must be agreed in writing and signed by both parties.

Changes that have no material impact on cost or schedule may be recorded between the customer's project manager and Automatify's project manager. A corresponding minute is signed by both parties.

7. Performance and Acceptance

Consulting services are deemed rendered once Automatify has carried out its activities under the relevant engagement. Documents and analyses are deemed approved if presented to the customer and the customer has not, within 14 days, requested in writing the completion of gaps and/or the correction of errors. If documents or analyses prove incomplete, Automatify will supplement or improve them, charging for the effort. Only in the case of demonstrably defective consulting performance, and upon timely complaint, will Automatify provide free-of-charge rectification. Where a business blueprint is used for data migration with the customer's consent, it is deemed accepted at the latest when data migration begins.

Work services are deemed rendered once Automatify has completed them according to the specifications in the engagement and handed them over to the customer. The customer will confirm in writing, without delay after handover, that the work services are complete and free of operation-preventing defects, whereupon they are deemed accepted. This confirmation may only be withheld if operation-preventing defects exist and Automatify fails to remedy them even after two reasonable written grace periods. Non-operation-preventing defects are remedied under the warranty provisions. If acceptance fails, the customer may either withdraw from the engagement or demand a reduction in fees corresponding to the diminished value. If the customer does not respond within 10 working days of handover, the work services are deemed accepted; putting them into productive use has the same effect.

8. Warranty

Automatify provides consulting services with due care, in accordance with generally recognised principles of the relevant field. Any warranty for business blueprints is excluded if the intended implementation is not carried out by Automatify.

For work services, Automatify warrants that the delivered results meet the specified acceptance criteria at the time of handover. Automatify cannot guarantee that the delivered results can be used without interruption or error in every possible configuration. Automatify undertakes not to knowingly infringe third-party industrial property rights when performing work services.

If the customer's contact person reports defects (deviations from the specified acceptance criteria) immediately upon discovery, and at the latest within 3 months of acceptance, in writing and with sufficient documentation, Automatify will remedy such defects as quickly as possible, e.g. by phone support, new code, or the next available release or update. The customer will support Automatify in remedying the defect.

If, despite repeated efforts, Automatify fails to remedy properly reported defects in work services, and this materially impairs or excludes the fitness for use of the defective work service compared to the specification, the customer must set two written reasonable grace periods and may, after their expiry, withdraw from the relevant engagement. For non-operation-preventing defects, the customer may demand a reduction in fees corresponding to the diminished value. Any further warranty by Automatify, in particular replacement delivery and cost coverage for third-party defect remedy, is expressly excluded. When asserting defects, the customer must prove that they are not caused by the customer's own specifications, system environment or manner of use. This Section 8 exhaustively governs Automatify's warranty and the customer's related remedies.

Automatify will defend the customer against any claim for infringement of a proprietary right arising from the customer's contractual use of the work product, provided the customer notifies Automatify in writing within 30 days and leaves the exclusive conduct of any proceedings and negotiations to Automatify. Under these conditions, Automatify conducts the dispute at its own expense and also assumes damages finally awarded to third parties.

If the provision of the contractual service is found, by court judgment or at Automatify's discretion, to infringe third-party proprietary rights, Automatify has the right, at its own expense, to make changes to eliminate the infringement or to acquire the corresponding rights. If these measures do not succeed and the infringement is established by court judgment, Automatify will compensate the customer for the loss of the right of use by reimbursing the fees paid, less standard depreciation for the period of use.

Automatify is released from the obligations under sections 8.5 and 8.6 if a proprietary rights claim is based on the fact that the result of the services was altered by the customer or by third parties not engaged by Automatify, or that it is used under conditions other than those specified. The customer has no claims against Automatify beyond these provisions.

9. Liability

Automatify's liability for personal injury is unlimited. Liability for direct damages culpably caused by Automatify in performing an engagement is limited, per engagement, to a maximum of 20% of the fees under the relevant engagement, but no more than CHF 100,000.

Any liability of Automatify or its agents for other or further-reaching claims and damages, in particular claims for indirect or consequential damages, damages resulting from defects, third-party claims, loss of profit, unrealised savings or loss of earnings, and data loss, regardless of legal grounds, is expressly excluded.

Any further mandatory statutory liability remains reserved, e.g. under Art. 100 para. 1 of the Swiss Code of Obligations.

10. Proprietary Rights

The engagement does not affect existing rights of the parties in developments made independently of the contractual service. In particular, fulfilment of an engagement does not grant any rights or licences to any patent, copyright, trademark, trade secret, method used by Automatify, or other proprietary right belonging to Automatify.

Subject to deviating provisions in the relevant engagement, the customer and Automatify are entitled to freely use the know-how resulting from the performance of an engagement. If developments contain, in whole or in part, a licensable Automatify software product, the customer may only use it on hardware for which it has acquired a valid licence for that software.

If fulfilment of an engagement results in new inventions, discoveries or improvements for which patent rights could be registered, these rights belong entirely to Automatify. The customer is granted a royalty-free licence. If a customer employee was materially involved in the patentable invention, discovery or improvement, the corresponding rights pass into the joint ownership of both parties. Inventions, discoveries or improvements made solely by the customer's employees, independently of Automatify's employees, belong exclusively to the customer.

Automatify reserves all intellectual property rights, in particular all copyrights, in the services rendered and documents handed over to the customer in fulfilling the engagement. However, the customer is entitled to copy and further use the results arising from Automatify's services for its own needs or purposes.

Automatify is entitled to use engagements performed for the customer as a reference in its dealings with other customers. Confidentiality of the customer's confidential data and documents is nonetheless preserved. The customer warrants to Automatify that it only makes available such documents to which it is entitled to grant access. The provisions of this Section 10 remain in force even after termination of the engagement.

11. Confidentiality / Data Protection

The parties undertake to instruct their personnel and any third parties they engage to treat documents marked as confidential, which relate to the parties' business operations and become accessible or known to them in the course of contract performance, with the same confidentiality as their own corresponding information. The confidentiality obligation continues after termination of all engagements for as long as a confidentiality interest exists.

Automatify acknowledges that information about the customer's end customers may be subject to banking secrecy under Art. 47 of the Swiss Federal Act on Banks and Savings Banks, and undertakes to maintain corresponding special confidentiality. The confidentiality obligation does not apply to data that is generally accessible, demonstrably already known to the parties, independently developed, or acquired from authorised third parties.

The customer acknowledges that performance of the contract may involve the collection and processing of personal data within the meaning of the Federal Act on Data Protection, and that Automatify may also transfer data abroad in the course of contract performance. Compliance with the confidentiality obligation remains ensured in all cases.

Automatify is entitled to include the customer in its official customer list. Further reference details require the customer's prior consent.

12. Support Services

Based on a separate agreement in an engagement, Automatify may also provide ongoing support services (such as basic maintenance, telephone support, etc.) during its business hours. Unless agreed otherwise, such ongoing support services may be terminated by either party with three months' notice to the end of a contract year. Unless agreed otherwise, support services are invoiced to the customer on a time-and-materials basis at Automatify's then-applicable rates.

13. Data Backup by the Customer

To the extent an engagement involves Automatify working on or with the customer's IT equipment, the customer is obliged to ensure, in good time before and during the relevant activities, that the data is backed up, i.e. that recorded data can be reconstructed with reasonable effort from machine-readable data carriers in the event of destruction, loss or corruption.

14. Automatify Employees

The employment relationship of Automatify employees is not affected by their deployment at the customer.

Without Automatify's written consent, the customer undertakes not to enter into an employment relationship, or a similar legal relationship, with Automatify employees deployed for this purpose during the term of an engagement and within the following year. For each breach of this obligation, the customer owes Automatify a contractual penalty equal to one gross annual salary of the employee concerned. Payment of the penalty does not release the customer from the above obligation.

The customer enables Automatify to allow its employees to fulfil statutory obligations (military service, civil protection, etc.) or contractual entitlements (further training, etc.); where necessary, Automatify will, where possible, agree an alternative solution in consultation with the customer. Automatify will endeavour to replace unavailable Automatify employees but assumes no liability in this respect. The same applies to other unavailability of deployed Automatify employees due to illness, operational or other important reasons, fulfilment of statutory obligations, etc.

15. Term and Termination

An engagement for consulting services may be terminated in writing by either party with 30 days' notice to the end of a month. Termination without observing this notice period is deemed termination at an inopportune time. Engagements for work services may be terminated by the customer, subject to section 15.2 below, only against full indemnification.

Either party may terminate the engagement with immediate effect, without notice, if the other party repeatedly breaches its obligations under an engagement despite a written warning, or if the customer is in default of payment. The customer has no right to reimbursement of payment for services already rendered. Claims for damages remain reserved.

16. Final Provisions

Rights arising from the engagement or these Terms may only be assigned by a party with the other party's prior written consent, which may only be withheld for good cause.

Amendments or additions to an engagement are only valid if recorded in a written supplementary agreement that expressly refers to the relevant engagement.

In the event of deviations or contradictions, the provisions of the engagement prevail over these Terms.

Should any provision of the engagement or these Terms be or become invalid or unenforceable, the remaining provisions remain in effect. The invalid or unenforceable provision will be replaced by a valid provision that comes as close as legally possible to its economic intent.

Swiss law applies exclusively to the engagement and these Terms. The exclusive place of jurisdiction is the ordinary courts at Automatify's registered office in Switzerland. Automatify may also sue the customer at its place of domicile.