Terms and Conditions

1.1 Basic information

In cooperation with our customers we fulfil orders in the field of information technology and related areas (e.g. telematics, telecommunications etc.) and provide services to the best of our knowledge and ability. This is done in trusting and respectful interaction with people, materials and the environment. The general terms and conditions are intended to help implement the business relationship with customers and create clear conditions for all parties involved.

1.2 Scope and validity

The General Terms and Conditions (GTC) of TwinCap First AG (TCF) regulate the most important conditions for business relations with customers. These are valid unless there are deviating written agreements with the customer. TCF reserves the right to change these Terms and Conditions at any time and without prior notice; TCF will send the new Terms and Conditions to the Customer. If the Customer does not reject the new GTC in writing within 30 days after delivery the new GTC shall apply. If the Customer rejects the new GTCs in writing within this period, the previous GTCs shall continue to apply unchanged. The customer has no right of termination.

1.3 Conclusion and validity

The contract shall come into effect upon signature or written confirmation by the Customer and acceptance by TCF (e-mail or other medium). The content and scope of the Contract shall be determined in the sense of a ranking by the offer of TCF, the appendices and other conditions and generally valid regulations/framework conditions (depending on the type of service/type of business) published on the Web at that time and these General Terms and Conditions. They also apply to all other services which TwinCap First AG provides to customers.

1.4 Definitions

• GTC: These General Terms and Conditions.
• Party(ies): The client and/or TwinCap First AG.
• Customer(s): The contracting party for which TwinCap First AG provides or offers services under a contract.
• Trade: Purchase and resale of goods such as software licenses, hardware or other tradable goods.
• Mediation: Transfer of orders against commission or payment as well as the placement of employees against payment or on commission.
• Consulting: Consulting services of a technical or business management nature, management consulting according to offer description (if available).
• Training: Carrying out training, further education or education offers according to agreement with the customer.
• Project: Circumscribed, one-off services with defined start/end for IT services. This includes consulting, installation, configuration, troubleshooting and all other necessary activities.
• Operation: Maintenance and operation of IT systems such as software solutions, hardware and other elements necessary for operation.
• Telecom: Communication solutions for IP telephony (nomadic telephony), such as the provision of telephone numbers, SIP trunks and management and billing systems.
• Published: All documents, particularly terms and conditions and general information on products or services, which can be freely accessed on TCF’s web pages are deemed to be publicly published.

1.5 Services

If and insofar as subsequently agreed upon in a written contract, TwinCap First AG provides the following services to customers:

• Trade services
• Brokerage of business and/or resources
• Consulting and training services
• Project services
• Operational services
• Telecom services
• Any other services agreed in writing with the customer

TCF acts as a commercial partner of this third party with respect to services of third parties (in particular, but not exclusively, Microsoft, Printix, SkyKick etc.) and represents the Customer in the commissioning of the corresponding services vis-à-vis the third party. TCF is therefore exclusively a representative and intermediary, but not a party to the contract of the Customer. TCF has no influence on errors, updates, changes in functionality etc. in the third party programs and online services, such as Exchange Online, SharePoint Online, Microsoft Office Outlook, Outlook Online, Active-Sync etc. TCF does not warrant or assume any liability for these third party services and functionalities. At the third party provider, the applicable contractual basis for the respective services can be viewed in the current version. The corresponding links can be requested from TCF. The Customer expressly agrees to the terms and conditions, his rights and obligations and is aware that these apply solely to the third party provider and not to TCF.

1.6 Payment for services

The customer shall pay a corresponding remuneration in accordance with the provisions in the respective order confirmations and contracts. Unless expressly stated otherwise, all prices are exclusive, i.e. further costs such as value added tax, transport costs or other expenses will be charged to the customer according to actual expenditure. These further costs will be shown separately in the invoice.

Insofar as TCF is based on services provided by third parties (e.g. licences from third parties, tariffs/telecom charges), TCF shall pass on price changes to the Customer. Changes will be published publicly on the websites. The Customer may request the links for the relevant websites from TCF. In case of model changes TCF will endeavour to provide a model that is as equivalent as possible.

1.7 Travel and journey times

Unless otherwise agreed in writing, the travel time to the customer is considered working time and will be invoiced accordingly. Costs for travel (hotel, flights, train tickets, taxis, etc.) will be charged to the customer 1:1, if incurred abroad, this will be charged at the daily exchange rate. Travel expenses will only be made with the prior consent of the customer.

1.8 Offers and price quotations

Offers and all their components are confidential and may only be processed and viewed by the customer as addressee. All copyrights and other intellectual property rights and know-how in all cost estimates, schemes, sketches and drafts or other components of the quotation shall remain with TCF.

Apart from offers, all documents (catalogues, product sheets, mailings, price lists, offers on paper or in electronic form, including information on TCF’s web pages), in particular the price quotations contained therein, are always non-binding and do not constitute an offer by TCF.

1.9 Delivery

Deliveries are made exclusively in Switzerland and Lichtenstein or in electronic form. The transfer of benefit and risk to the buyer takes place at the time of shipment of the object of purchase. In the case of technical equipment, the customer is responsible for a suitable installation location and the presence of the necessary electrical and electronic connections.

1.10 Delivery dates

Communicated delivery dates or deadlines are non-binding, unless their binding nature has been expressly guaranteed in writing. TCF shall not automatically be in default if dates or deadlines are exceeded. A delay in delivery shall not entitle the purchaser to compensation, price reduction or withdrawal from the contract.

1.11 Returns

Undamaged, functional, complete goods in perfect and unopened original packaging can normally be returned by the customer. Excluded from the right of return are articles which have been specially procured or manufactured at the customer’s request.

1.12 Terms of payment and delay

TCF may at any time demand payment in advance or on account. Invoices are payable within 30 days of the invoice date, unless the contractual agreements provide for other payment periods.

If the payment deadline is not met, the customer is in default without further reminder and owes default interest of 4%. If the Customer is in default of payment TCF may withhold all services provided or agreed for this Customer or suspend the provision of services or terminate the Agreement with immediate effect.

The right of TCF to withdraw from or terminate the contract in the event of default by the Customer exists not only with regard to services rendered directly by TCF, but also with regard to services rendered by third parties (see clause 1.5), whose services are invoiced via TCF. Accordingly, TCF shall also be entitled to terminate the relevant contracts between the Customer and the third party on behalf of the Customer with immediate effect.

1.13 Offsetting

The set-off of claims or receivables by the Customer requires the prior written consent of TCF.

1.14 Default/refusal of acceptance

If the customer unjustifiably refuses to accept or take delivery of goods or services, TCF has the following options:

1. The goods or services are to be kept at TCF at the expense and risk of the Customer ready for collection or retrieval; the full contract value remains due.
2. Withdrawal from the contract, whereby the Customer shall reimburse TCF for expenses incurred to date, but in any case, at least 30% of the order value.

1.15 Approaches to maintenance and service contracts

TCF may adjust its prices at the beginning of each new contract year to reflect cost increases such as labour and material costs. Such adjustments shall be notified in advance in writing or by e-mail. Taxes, customs duties or other fees or charges will be passed on according to actual expenditure.

1.16 Retention of title

Until full payment of the purchase price, including any reminder charges and default interest, there is a reservation of title in favour of TCF on all products. The Customer hereby declares its consent to the registration of the retention of title at its domicile or place of residence.

1.17 Warranty

TCF always provides its services with care. Any further claims of the Customer (including the right to a reduction of the fee or to damages) are expressly excluded, unless explicitly stated otherwise in the contract.

For its own contractual services TCF guarantees that these have the expressly warranted characteristic(s). The Customer shall immediately inspect contractual work and services and claim any defects within 30 days of the delivery date, documented in writing and traceable (reproducible). Within this warranty period, defects shall be remedied free of charge.

TCF may, at its discretion, remedy defects claimed free of charge or refund a reasonable reduction in value. Any claims for cancellation of the contract, reduction in price or replacement are excluded.

The Customer acknowledges that TCF cannot make any warranties or assume any responsibility for mediated software (in particular also cloud solutions), because the corresponding contracts are concluded directly between the Customer and the third parties (software right holders) and TCF is not a party to the contract. Accordingly, the warranty rights of the Customer result from the warranty provisions of such third party suppliers (see clause 1.5).

The Customer shall give written notice of any defects within 10 days of receipt of the service or goods, otherwise all claims against TCF are forfeited.

1.18 Personnel deployment

TCF uses personnel for the work to be carried out who meet the respective requirements and, if necessary, also calls in external third parties. Customers undertake not to actively or passively entice away any employees involved in the execution of the contract. In the event of non-compliance, a contractual penalty (without proof of damage) in the amount of CHF 20,000 shall be due; in addition, TCF may demand compensation for damages. Payment of the contractual penalty does not replace actual performance. TCF may enforce the prohibition in reality. The prohibition of enticement is valid for the entire contractual relationship and for two years after its termination.

1.19 Operating times and surcharges

Outside the regular working hours (06.00 – 20.00 hours on weekdays) the following surcharges apply:

Surcharge of 50%

• On working days 20:00 – 06:00
• On Saturdays

Surcharge of 100%

• On Sundays and public holidays

1.20 Term of contract and termination

The term of the contract is one year from the conclusion of the contract, provided that no other start date or duration has been specified or offered/offered. The contract is automatically renewed for one year at a time unless it is cancelled by the customer by registered letter three months before expiry. Individual services may have different durations, which apply accordingly.

Either party has the right to terminate the contract with immediate effect if the other party seriously and persistently violates important provisions of the contract despite a written warning by registered letter and the setting of a reasonable grace period. This applies in particular in case of default of payment.

In particular TCF has the right to terminate contracts in the telecom sector (flat subscriptions, tariff agreements etc.) as well as the sale of Software as a Service (Microsoft CSP, Office 365, Azure, Printix, Skykick etc.) at any time and without giving reasons by giving 1 months’ notice and then to terminate the provision of services immediately. In case of default of payment, the termination may be affected without notice.

1.21 Copyrights

TCF undertakes not to hand over all documents to third parties without the consent of the Customer, nor to allow them to inspect them. Developments made at the Customer by TCF employees (e.g. scripts, source codes or similar) may be reused by TCF and may also be used commercially by other customers, unless there is a written agreement with the Customer which explicitly prohibits this.

The ownership and all intellectual property rights to the equipment (in particular in the form of object or source codes, including development documentation), to project services and to any additional services, irrespective of the copyright protection, are due to TCF or the licensor or lessor of TCF, unless the Customer purchases the equipment itself or procures it itself by licence or leasing.

1.22 Inventions and developments

The copyrights and other industrial property rights relating to the inventions and developments realised in the performance of the services under this Agreement shall remain with TCF. The Customer shall be granted a free, comprehensive, transferable and non-exclusive right of use and disposal (licence), which is unrestricted in time and space.

1.23 Knowledge

In any event TCF shall have the right, without compensation, to use the ideas, concepts, documents (stored on paper or electronically) and procedures which it has acquired in the performance of consultancy, project and operational services, either alone or together with the Customer and third parties, in the performance of work of a similar nature for itself and/or other contractual partners.

1.24 Performance of the customer / obligations of the customer

The customer, for his part, shall inform TCF of planned work in good time.

Within the scope of any troubleshooting, the customer is obliged to conclude maintenance contracts or warranty/extensions with the manufacturers for the hardware/software used. TCF will in particular remedy minor malfunctions caused by the Customer (e.g. by faulty manipulation), third parties or other equipment.

Finally, the Customer shall provide TCF, without being requested to do so, with all information necessary for the diligent performance of the services of TCF.

1.25 Confidentiality

Both contracting parties are obliged to maintain secrecy. This obligation remains in force even after termination of the contract.

1.26 Liability

TCF is only liable for damage caused by TCF intentionally or through gross negligence. Liability for indirect or consequential damages such as consequential damages, claims of third parties, loss of profit, loss of data etc. is hereby excluded to the extent permitted by law, as is liability for slight negligence.

TCF shall not be liable if the provision of the service is temporarily interrupted, wholly or partially restricted or impossible due to force majeure. Force majeure includes in particular power failure and the occurrence of malicious software (e.g. virus attack).

1.27 Partial invalidity

Should individual agreements violate applicable law, this does not render the entire contract void. The void clauses will be replaced by analogous, compliant regulations.

1.28 Mediation, jurisdiction and applicable law

This contract shall be governed exclusively by Swiss law, excluding any reference to the Federal Act on Private International Law and excluding the Vienna Convention on Contracts for the International Sale of Goods (UN Convention on Contracts for the International Sale of Goods). All disputes and/or claims arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the ordinary courts at the place of business of TCF.

1.29 Final provisions

In any case, these General Terms and Conditions shall take precedence over any other general terms and conditions of the customer. Cancellation, amendments and/or additions to the contract as well as individual obligations arising therefrom must be made in writing to be binding.

This Agreement supersedes all prior oral or written agreements between the parties and governs the

Concluding legal transaction. The contract or individual rights arising from it and

Obligations may only be assigned or transferred to third parties with the prior written consent of the other party.  The provisions agreed by the parties in writing, in particular an offer of TCF accepted by the Customer, shall prevail over the provisions in these GTC.

TCF is entitled to use third parties as suppliers, assistants or subcontractors for the provision of its services. However, in the event of a takeover or restructuring of one party, the contract will be transferred unchanged to the successor organisation.

A waiver by either party to enforce a contractual right in a particular case cannot be considered a general waiver of such rights.

The parties must be notified in writing of any changes of address.