For business transactions between Broadband Networks AG or Broadband Planning AG (hereinafter referred to as "BN") and customers, the following General Terms and Conditions ("GTC") shall apply. Deviating regulations and conditions of the customer are only valid if BN has agreed to them in writing. These General Terms and Conditions apply to agreements between the customer and BN for the purchase of telecommunications equipment (hardware and software) and the provision of services such as consulting, installation, maintenance, warranty extension and support.
BN is entitled to change the GTC at any time. They are deemed to have been approved by the customer unless the customer objects in writing to BN within one month of receiving the new GTCs. In this case, the previous General Terms and Conditions shall continue to apply until the termination of the contract. Within the framework of an existing business relationship, the GTCs are valid even if no special reference is made to them in an individual order or service.
Should parts of these GTC be null and void or become legally ineffective, this shall not affect the validity of the other provisions. The void or legally ineffective provisions shall be interpreted or redesigned in such a way that the intended purpose is achieved as far as possible.
Any order for hardware, software or services requires the written confirmation of BN to be valid, unless a written contract has already been concluded between the parties or a delivery without confirmation by BN is carried out immediately ex warehouse. Otherwise, verbal agreements are only valid if and insofar as BN has confirmed them in writing. Contracts between BN and the customer enter into force upon signing or, in the case of orders, upon dispatch of the order confirmation. Written exceptions remain reserved.
The prices stated by BN for hardware and software, material and services etc. are net prices excl. VAT ex domicile BN. Freight costs, packaging and freight insurance shall be borne by the customer, as shall travel expenses etc. in connection with the provision of services.
BN expressly reserves the right to adjust contractually agreed prices for goods at any time if the exchange rates of foreign currencies or customs tariffs for products purchased abroad or the prices of BN suppliers have changed between conclusion of the contract and delivery. In the event of price adjustments, both parties are entitled to withdraw from the contract immediately and in writing if BN has not yet made any contractual changes to the goods to be delivered. The prices for services may be adjusted by BN with one month's notice to the end of each month. In this case, the customer has a unilateral right of termination to be exercised in writing as of the entry into force of the increased prices. If this right of termination is not exercised by this time, the new prices shall be deemed to have been approved by the customer.
Payments are due at the latest 10 days after the invoice date without any deduction. After expiry of this period, a defaulting customer shall be in default without reminder and shall pay default interest at a rate of 4% above the respective discount rate of the Swiss National Bank, but at least 6%. If the customer delays performance in service and maintenance contracts, BN is entitled to discontinue its own services without notice until the customer has provided the contractual services.
The payment periods are also to be observed by the customer if delays in delivery, which were not caused by BN, have occurred or if insignificant parts are missing, but thereby the use of the delivered goods is not rendered impossible. The same applies if the customer does not accept the services correctly offered by BBN for reasons for which he is responsible.
The customer is not entitled to offset his payment obligations against counterclaims or to withhold payments due to complaints unless BN has given its written consent.
BN reserves the right to deliver the goods to be delivered cash on delivery at the expense of the customer.
The delivered goods remain the property of BN until the price has been paid in full. If BN integrates delivered goods into another system, the customer grants BN co-ownership of the entire system to the extent of the installed goods.
The equipment installed by the customer on the basis of a service contract remains the full property of BN and is taken back at the end of the contract.
The customer agrees that a corresponding retention of title will be entered into the retention of title register at the customer's domicile and authorises BN to take back the equipment at the end of the contract.
When purchasing software, the customer has the right to use this software on the defined hardware. The copyrights of the software remain in any case with BN or the license provider. The right to use the software does not include any claim to the delivery of new software releases.
The scope of the agreed services results from the corresponding contract or order. Where available, service sheets are an integral part of the service agreement. Insofar as provisions deviating from these GTC are listed in the service agreements, these shall take precedence over the GTC.
Agreements for services are terminated or concluded for an indefinite period of time. For agreements for an indefinite period, a notice period of two months is possible, whereby the minimum contract duration is 12 months.
For agreements with indefinite duration BN can change contract components at any time. In such cases, the customer has a unilateral right of termination as of the effective date of the contract amendment made by BN. If this right of termination is not exercised by this date, the new components of the service contract are deemed to have been approved by the customer.
Upon payment of the fee, the customer has the right to use BN work results himself within the scope of the agreed purpose. Any use beyond the defined purpose, including the passing on to third parties, against payment as well as free of charge, is not permitted without the written consent of BN for the protection of advance services and know-how. In all cases, BN retains the copyright, in particular the know-how for deriving the work results, as well as the right of further use. Customer-specific data and information provided by the customer may not be passed on by BN to third parties or used in any other way.
The agreed delivery periods/standby and response times shall be observed by BN subject to delays for which BN is not responsible, such as delays in delivery by BN's suppliers, delays in cooperation by the customer, force majeure, etc. Possible delays of deliveries, non-observance of maintenance readiness and reaction times shall in no case entitle the customer to compensation (neither for direct nor for indirect damage) or to withdrawal from the contract. Delivery periods shall commence on the day on which the order becomes legally binding (cf. above item 2).
If the customer is in default of acceptance of goods, BN is entitled, at its option, either to deposit the ordered goods at the customer's risk and expense and thereby release itself from its obligations or to withdraw from the contract immediately. BN will grant the customer a short grace period for acceptance before exercising its right of choice.
The dispatch of ordered goods is carried out by BN with a suitable transport company, but at the expense of the recipient. Complaints about damage to or loss of the transported goods must be addressed by the customer directly to BN immediately upon receipt or detection of the loss.
The customer must inspect the delivered goods immediately upon receipt and notify BN in writing of any defects within 14 days of the delivery date at the latest. If the customer fails to notify BN of such defects within the specified period, the delivery shall be deemed to have been accepted free of defects.
A return of products by the customer requires the prior consent of BN and is at the expense and risk of the customer. The products must be returned in their original packaging and accompanied by a detailed description of the defect.
The place of performance for deliveries of goods is always the domicile of BN, even if the delivery is made carriage paid, cif, fob or under similar clauses. Benefit and risk are transferred to the customer when the goods are handed over to the customer or to a transport company at BN's domicile, even if the transport is organised and managed by BN.
If the dispatch or handover is delayed or rendered impossible for reasons for which BN is not responsible, the delivery will be stored at the expense and risk of the customer subject to clause 8 above.
In the case of services, the place of performance shall be specified in the contract/order.
The customer is responsible for the selection and use of the goods ordered and for the results achieved.
Unless otherwise agreed, BN grants 12 months warranty on the hardware for new goods and three months warranty on repaired hardware from the date of shipment of the new goods or repaired hardware. During this period BN undertakes to remedy the defects reported by the customer during this period by either replacing the defective or unusable parts or having them replaced or improved or improved at the customer's option. Any further claims of the customer exceeding the value of the delivered goods, in particular claims for damages (neither for direct nor indirect damages) and/or dissolution of the contract, are excluded. There is no warranty claim for software or services from maintenance contracts.
The guarantee shall not be granted if the defects are caused by external influences, improper use, incorrect operation, inadequate maintenance, manipulation or attempted repairs and reasons for which the customer is responsible. This also applies to hardware which has a warranty extension and maintenance.
Expenses resulting from unjustified warranty claims may be invoiced.
Irrespective of the legal nature of the claim for damages asserted, BN shall be liable to the customer in the event of faulty fulfilment of the order exclusively for the direct or direct damage incurred in accordance with the fault, in particular in the event of a breach of the duty of care and loyalty or in the event of non-compliance with the relevant technical rules. BN's liability is limited to an amount of CHF 1 million, unless there is more extensive insurance cover or the injured customer can prove that BN has acted or refrained from acting with sufficient gross negligence or intent.
Special case consulting and engineering services: BN is only liable for direct or immediate financial loss and only in case of gross negligence or omission. Liability is limited to a maximum of the amount of the fee paid. A further liability of BN exists only if the injured customer can prove gross negligence or deliberate act or omission on the part of BN.
As far as the liability is excluded or limited within the scope of these General Terms and Conditions, this also applies to the personal liability of our employees and other "vicarious agents".
The re-export of products is subject to international export control regulations. In particular, Swiss (seco, State Secretariat for Economic Affairs, Export Controls/Industrial Products), European and US export regulations must be taken into account. The customer undertakes to inquire independently about the relevant foreign trade regulations and export control provisions and to obtain any necessary permits from the relevant foreign trade authorities himself before exporting the products. Any further delivery of products by customers to third parties, with or without BN's knowledge, requires at the same time the transfer of the export permit conditions. If BN is prosecuted because the customer has not obtained the necessary export permits for the products delivered by BN, the customer has to indemnify BN in full.
BN is entitled to call in auxiliary persons to fulfil its obligations. BN is liable for the activities of these auxiliary persons as for its own actions.
The customer undertakes to treat confidential data and information of a commercial nature, e.g. offers and discounts, confidentially and to use them only for the purpose of the contractual relationship with BN. Documents with confidential data and information are marked "CONFIDENTIAL".
All business relations between BN and the customer are subject to Swiss law. The place of jurisdiction is the registered office of Broadband Networks AG.
In the event of any dispute, the German version of the GTC shall prevail.