Valid from: 01.02.2022
General Terms and Conditions (GTC)
1. Scope of application and validity
1.1 These General Terms and Conditions («GTC») govern the entry into, the content and performance of contracts for IT services between one or more entities of the Aveniq Group (consisting of Aveniq AG, Aveniq Avectris AG, Aveniq Comicro AG, Aveniq ERPsourcing AG and Aveniq Logicare AG, hereinafter each individually and collectively referred to as «Aveniq») on the one hand and the Customer on the other hand (Aveniq and Customer hereinafter individually referred to as a «Party» and collectively the «Parties»).
1.2 The GTC as well as the “Aveniq Code of Conduct for Business Partners” (“Code of Conduct“) in the version applicable at the time of the entry into the contract form an integral part of the contractual relationship between Aveniq and the Customer.
1.3 These GTC and the Code shall apply unless expressly agreed otherwise in writing in the contract. If there are any contradictions between the contract, the GTC and the Code, the Contract shall prevail first, the Code second and the GTC third. The Customer’s general terms and conditions or general conditions of purchase shall not apply, even if they are referred to in an order form or in other docu-ments.
2.1 “IT Services” shall mean the services contractually agreed with the Customer, in particular consulting, project services or other services. The type and scope of the IT services provided by Aveniq are set out in the contract and in any offer referenced therein.
2.2 “Consulting Services” shall mean general consultancy, analyses, training, coordination services, evaluation consultations, strategic planning, acceptance support, etc.
2.3 “Project Services” are in particular software developments, software modifications and customizations, migrations and system integration services which are carried out by Aveniq.
2.4 «Other Services» are recurring, defined services for which operating services, maintenance and support are provided by Aveniq.
2.5 «IT Equipment» shall mean the aggre-gate of the equipment, including hardware, software, systems, cables and installations, provided by Aveniq and made available to the Customer.
2.6 «Third Party Cloud Services » shall mean services provided by a third party (e.g. Microsoft Azure) as a cloud offering. Unless expressly agreed otherwise, Aveniq acts as agent when integrating third-party cloud services. Aveniq represents the Customer vis-à-vis the third party, whereby the contract with the third party is concluded directly between such third party and the Customer.
3. Offers and Placing of Orders
3.1 IT Services are offered by Aveniq on the basis of a performance specification, a project order or a written offer. If no performance specifications are available or if the specified requirements are not sufficient to provide an offer, the Customer may mandate Aveniq to develop the basic principles in a preproject against separate remuneration.
3.2 Unless otherwise specified in the offer, Aveniq shall remain bound for 30 days from the date of the offer. By submitting a written order or, at the latest, by accepting an offer, the Customer acknowledges the applicability of these GTC.
3.3 Amendments or supplements to the contract shall be made in writing.
4. Provision of Services
4.1 Aveniq warrants that the products and contractual services delivered by it meet the agreed specifications and the specifications the Customer may expect in good faith, even without a special agreement, according to the respective state of the art at the time of the entry into the contract (unless otherwise stated in the contract).
4.2 Project Services are carried out using recognised project management methods.
4.3 Aveniq shall notify the Customer of all circumstances that jeopardise the fulfilment of the contract. Aveniq shall also inform the Customer of any developments that make a change in the services appear appropriate for technical or economic reasons.
4.4 Aveniq undertakes to comply with the Customer’s operational regulations, in particular the house rules, provided that these have been communicated to Aveniq in writing prior to the entry into the contract.
5. Support and Cooperation Obligations of the Customer
5.1 The Customer shall create the conditions within its sphere of influence to enable Aveniq to fulfil its contractual obligations. In particular, he shall provide Aveniq with the necessary information on operational processes. He shall provide all relevant information and make available any specified Customer installations. He shall grant Aveniq the necessary access to his premises and provide suit-able workstations if required.
5.2 The Customer shall immediately notify Aveniq of any circumstances that jeopardise the contractual performance or make a change to the agreed IT Services appear appropriate.
5.3 The Customer shall create the preconditions for the fulfilment of the contract within its sphere of responsibility and shall perform its duties to cooperate at its own expense.
5.4 Insofar as the untimely, incorrect or incomplete fulfilment of the Customer’s obligations to cooperate affects the provision of Aveniq’s services, Aveniq shall be released from its contractual obligations to the corresponding extent. Aveniq shall issue a warning to the Customer upon discovery and shall be entitled to charge the additional costs and expenses incurred by Aveniq.
5.5 The Customer shall inform Aveniq of any existing technical or other facilities (e.g. water or gas supply facilities) that could be damaged during installation or as a result of the operation of the IT system.
5.6 If Aveniq is to carry out installations on the Customer’s premises, the Customer shall notify Aveniq of any health and work risks and recommend the necessary protective measures.
5.7 Aveniq reserves the right to interrupt the connection to all Customer installations or to dis-continue the provision of services on site if, in its opinion, these could endanger persons or cause damage to the property of Aveniq or third parties or if the quality of the services would be significantly impaired. Aveniq shall inform the Customer immediately in such cases.
5.8 In the case of cloud services provided by third parties, the Customer must agree to the relevant terms and conditions of such third party.
6. Testing and Acceptance
6.1 Consultancy Services shall be deemed to have been rendered as soon as Aveniq has performed its activities in accordance with the order description. Incomplete services will be completed or improved in consultation with the Customer and the costs incurred will be charged. Only in the event of demonstrable negligence in the provision of consulting services by Aveniq, shall Aveniq be obligated to rectify the situation free of charge. The Customer shall grant Aveniq a period of grace in that is reasonable under the circumstances.
6.2 Project Services shall be deemed to have been rendered as soon as Aveniq has completed them in accordance with the specifications set out in the Project Order and handed them over to the Customer and the following acceptance provisions have been complied with. The Customer shall carry out acceptance immediately after handover of the Project Services. The acceptance procedure shall be in accordance with the acceptance specifications as specified in the project order. The performance of the acceptance and the provision of the necessary test data shall be the responsibility of the Customer; Aveniq shall provide the Customer with appropriate support in this respect. An acceptance report shall be drawn up and signed by both Parties. It shall record minor defects which are to be rectified and major defects which require the acceptance to be repeated in whole or in part. If, during an acceptance, defects are found which do not prevent the use of the agreed Project Services, the Customer shall grant the acceptance without claiming a price reduction, subject to rectification of the defects within the warranty period. If Aveniq fails to remedy the defect despite having been granted a reasonable grace period twice, the Customer shall be entitled to a reduction of the remuneration of a value agreed with Aveniq. Rescission, substitute performance or claims for compensation shall be excluded. If the Customer does not carry out the acceptance within 10 working days and a grace period set by Aveniq, the Project Services shall be deemed to have been accepted. Insofar as the Customer uses Project Services productively in whole or in part without carrying out the relevant acceptance, the Project Services shall also be deemed to have been accepted without the need for an acceptance protocol.
6.3 After installation and commissioning of a Service, Aveniq releases such Service (Release).
7. Personnel Leasing
7.1 The leasing out of personnel by Aveniq is governed by the Federal Act on the Placement of Workers and the Leasing Out of Personnel. Aveniq is responsible for the necessary permits and contracts for the personnel deployed, as well as for the required registrations with the social insurances.
7.2 In the case of personnel leasing, Aveniq shall only be liable for the careful selection (professional and personal suitability) of the personnel. The Customer is responsible for the correctness and appropriateness of the assign-ments given to the leased personnel as well as for the supervision and control of the services to be provided by them.
8. Deployment of Personnel / Service Pro-vision by Third Parties
8.1 Aveniq only employs carefully selected personnel who have been trained to meet the requirements.