General Terms and Conditions new-win SW Solutions AG

 

 

Art. 1 Purpose and scope of the GTC

1.1
These General Terms and Conditions (hereinafter referred to as “GTC”) govern the mutual rights and obligations of new-win SW Solutions AG (hereinafter referred to as “new-win”) and the customer. They apply to all contractual relationships between new-win and customers.

1.2
If the customer has its own general terms and conditions of business or contract, these shall not apply to the legal relationship with new-win, subject to an explicit provision to the contrary in the individual contract (Clause 3.1).

 

Art. 2 Conclusion of contract

2.1
A contractual relationship with new-win (hereinafter referred to as the “Individual Contract”) is established by the mutual signing of an offer, an order confirmation, a project order or another contractual document or by an order placed by the customer by e-mail or telephone, which is confirmed by new-win by e-mail or in writing.

2.2
The provision of product information by newwin, whether in writing or electronically, does not constitute an application, but merely an invitation to submit an offer. This also applies if new-win provides specific information on the scope of services and prices in individual cases.

 

 

Art. 3 Components of the contract

3.1
An individual contract between new-win and the customer can have various components. In the event of any discrepancies between the contract components, these shall apply in the following order:
a) Order confirmation, offer, project order or e-mail confirmation
b) Attachments to the order confirmation, the offer, the project order or the e-mail confirmation
(c) Specific provisions of the Treaty
d) Framework agreement
e) These T&Cs

 

Art. 4 Benefits newwin

 

4.1
The services to be provided by new-win and the specific scope of services are defined in the individual contract (Clause 3.1).

4.2
The catalog of services to be provided by new-win is set out conclusively in the individual contract. Services that are not expressly listed in the individual contract are not owed by new-win.

4.3
If new-win exceptionally provides services that are not expressly set out in the service catalog of the individual contract, this shall not be deemed as recognition of a corresponding service obligation.

4.4
The services agreed in the individual contract and the scope of services can be changed by the client and by new-win by agreement at any time within the scope of a “change request” (contract amendment). However, a contract amendment is only binding if the effects on the remuneration are recorded and if it is either signed by both parties, recorded in a project status report or confirmed by e-mail.

 

Art. 5 In particular: Support and maintenance services newwin

5.1
Unless otherwise agreed in an individual contract, new-win accepts enquiries or fault reports within the usual standby period. The usual on-call period is from 8:00 a.m. to 12:00 p.m. and from 1:30 p.m. to 5:00 p.m. from Monday to Friday, with the exception of the legally recognized public rest days at new-win’s headquarters in Suhr. Unless otherwise agreed in the individual contract, new-win expressly does not guarantee any time for reacting, intervening or restoring the contract.

5.2
Enquiries or fault reports should be sent to new-win by telephone (telephone no. +41 62 855 80 50) or electronically (inquiries: servicedesk@newwin.ch).

5.3
If there is no software license and maintenance contract between the customer and new-win or no other contract in which the support services provided have been agreed, new-win will charge the customer for inquiries and fault reports on a time and material basis. The current rates at the time of service provision will be charged.

5.4
In connection with support and maintenance services, the times and conditions defined in the separately signed software license and maintenance agreement shall apply.

Art. 6 Customer Services

 

6.1
The customer owes new-win the contractually agreed remuneration in due time. For types of remuneration and payment modalities, No. 9.

6.2
Insofar as necessary or useful for the fulfillment of the contract by new-win, the customer is obliged to cooperate. In particular, the customer must create the organizational, personnel and technical conditions so that it can use the services provided by new-win or so that new-win can provide the agreed services. This includes in particular:
a) After consultation, granting access to the IT system and ensuring the availability of specialist personnel, workstations and work equipment where necessary
b) Establishment and operation of the agreed specified communication connections
c) Compliance with the conditions set out in the maintenance and support contract or in the software documentation regarding the use and operation of the software
d) Documentation of exceptional conditions and error messages; support of the service provider in analyzing the causes and conditions of a defect and in testing the correction code to an appropriate and reasonable extent.

6.3
The client is obliged to use the services of new-win in a legally and contractually compliant manner. It shall take all necessary and reasonable measures to ensure that the services of new-win can only be used in a legally and contractually compliant manner.

6.4
If the customer does not meet its obligations to cooperate, does not meet them sufficiently or only with a delay, new-win’s obligations under the individual contract shall remain suspended until the requirements for the provision of services by new-win are met again. In addition, new-win is entitled to invoice the customer for the resulting additional costs on a time and material basis, even if a flat-rate fee has been agreed.

6.5
In the event of a serious or repeated breach of contractual obligations by the customer, new-win is entitled to cease its services immediately and to terminate the corresponding individual contract with immediate effect (Clause 13.2).

Art. 7 Data protection and data security

 

7.1
new-win complies with applicable legislation when handling data, in particular with the applicable laws on data protection. new-win processes customer data only to the extent required by the individual contract with the customer. In addition, the customer’s data will be treated confidentially, unless the purpose of the contract requires a different treatment of the data. The customer’s data also includes all information and documents that are accessible to new-win in the context of the business relationship.

7.2
The client agrees that data may be passed on to third parties by new-win if and insofar as this is necessary for the fulfillment of the contract. In particular, new-win is entitled to pass on the data if a service is provided for the customer together with a third party and the cooperation with the third party was recognizable for the customer when the contract was concluded.

7.3
If the fulfillment of the individual contract requires the processing of personal data of third parties, the customer is responsible for compliance with data protection obligations in relation to the third party. If the data subject’s consent is required for data processing, the customer shall ensure that this consent is validly granted. If the individual contract involves the processing of particularly sensitive personal data (Art. 3 lit. c FADP), the Customer shall expressly notify newwin thereof in advance.

7.4
The Customer is solely responsible for the regular backup of its data and software. This also applies in particular to data that is processed with programs that are created, installed or maintained by new-win.

7.5
More detailed information on data processing can be found in the separate privacy policy . By accepting the Terms and Conditions, you also explicitly agree to the privacy policy.

Art. 8 Intellectual Property Rights

 

8.1
All rights to existing intellectual property rights or to intellectual property rights arising from the performance of the contract shall remain with newwin or with the entitled third parties. In particular, copyrights to works (e.g. programs, program parts, system structures, documents such as process flows, checklists and work instructions or other aids) that arise in the course of the performance of the contract or are made available by newwin are exclusively owned by new-win. Subject to a deviating agreement, the latter is entitled in particular to the exclusive right of re-use of the created work.

8.2
For the duration of the contract, the customer shall receive the unlimited, non-transferable and non-exclusive right to use and utilize the works and products specified in the individual contract as well as the associated documents and aids (e.g. process flows, checklists and work instructions). The customer is obliged to comply with the license and usage provisions, including those of any third-party providers.

8.3
If claims are asserted against new-win by third parties due to the infringement of intellectual property rights by the Customer, the Customer shall indemnify newwin in full.

Art. 9 Remuneration

 

9.1
The remuneration can be owed as a lump sum or according to expenditure. In the case of remuneration based on expenditure or lump sum, the travel times must also be remunerated according to the agreed hourly rates. The corresponding remuneration system and the specific remuneration (flat rate or hourly rates) are agreed in the individual contract. The remuneration is to be paid in Swiss francs (CHF).

9.2
Unless otherwise contractually agreed, the customer owes new-win, in addition to the remuneration
a) the reimbursement of expenses and disbursements;
b) taxes and fees (in particular the statutory VAT).

9.3
Offsetting new-win’s claim for remuneration against counterclaims of the customer is only permitted insofar as the customer’s counterclaim has been recognized by new-win in writing and new-win has expressly agreed to the offsetting.

9.4
Invoices are generally issued monthly, in advance or according to an agreed payment plan. Lump-sum payments may be invoiced pro rata for contract periods of less than one year. Invoices from newwin shall be payable no later than 30 days after the invoice date.

Art. 10 Amendment to the GTC

 

10.1
new-win reserves the right to change the terms and conditions at any time and to adjust the prices. It is incumbent on newwin to announce the changes in advance and in an appropriate manner. Without written objection within one month of notification, the changes are deemed to have been approved

Art. 11 Warranty

 

11.1
new-win provides services such as consulting, design, maintenance and support carefully and in the agreed quality. newwin provides services with a contract for work and services, such as programming, in accordance with the specifications agreed in the individual contract and the quality specified therein. However, the Customer acknowledges that malfunctions, performance drops and service interruptions cannot be completely ruled out even with the greatest care and that the uninterrupted, error- and trouble-free service and the uninterrupted, error- and trouble-free operation of works cannot be guaranteed.

11.2
After delivery of a work, such as programming, the customer must inspect it immediately and thoroughly. If no notice of defects within the meaning of Clause 11.3 is given within 20 days of delivery, the work shall be deemed to have been unconditionally approved with regard to those defects that would have been recognizable during a detailed inspection.

11.3
If the customer discovers upon delivery or later that a work is defective or that a service is defective, he must inform new-win immediately, in detail and in a suitable form. After receipt of the notification of defects, new-win has the right to ensure that the defect is rectified within a reasonable period of time.

Art. 12 References

 

12.1
Unless otherwise stipulated, new-win is entitled to indicate the customer as a reference. In particular, new-win is entitled to list the customer as a reference on its website or on printed advertising materials (including logo) and to communicate with interested third parties.

Art. 13 Duration and termination of individual contracts

 

13.1
Unless otherwise agreed, individual contracts shall end on 31 December of the calendar year following the calendar year in which the contract was concluded. After the expiry of this fixed contract period, the contracts shall be extended by one calendar year in each case, unless they are terminated in writing by one of the parties in compliance with a three-month notice period prior to the expiry of the fixed contract term or an extension year.

13.2
If the continuation of the contractual relationship with the customer is unreasonable for new-win for important reasons, it may terminate the contract extraordinarily without notice. Good cause shall be deemed to exist in particular if the customer commits a material breach of contract – for example a breach of its obligations pursuant to Clause 6.6 – and fails to remedy this breach despite a written warning. Furthermore, newwin shall be entitled to terminate the contract without notice pursuant to Clause 6.6.

13.3
The individual contract also terminates all of its components. Other individual contracts or any framework agreement between new-win and the customer and their components are not affected by the termination of an individual contract for a product.

Art. 14 Final provisions

 

14.1
Should provisions of these T&Cs or the other components of the contract (Clause 3.1) prove to be invalid, invalid or impossible, the validity of the remaining provisions of the T&Cs or individual contracts referring to them shall not be affected thereby (severability clause). In this case, new-win and the customer undertake to replace the invalid provision with a permissible effective one that comes closest to the original purpose of the contract in terms of its content.

14.2
The client and new-win intend to reach an amicable settlement in good faith in the event of differences of opinion in connection with individual contracts.

14.3
Unless the contracts between newwin and the Customer contain provisions to the contrary, the provisions of the Swiss Code of Obligations shall apply. The place of jurisdiction for disputes arising from this contract is Suhr AG

 

Suhr, January 2025