General Terms and Conditions

Terms and Conditions of NoseDat Schweiz GmbH
for ERP-Projects

Version 1.0 valid from January 1, 2024

1. Scope

1.1 These General Terms and Conditions (GTC) are part of all contracts concluded between the NoseDat companies (hereinafter referred to as NoseDat) and the customer.

2. Contracts

2.1 NoseDat enters into project or support contracts with the customer.

Project contracts:

• Project contracts consist of a base contract and can be supplemented with additional documents such as a Statement of Work (SOW) and a Responsibility Matrix.
• Smaller service volumes can be ordered via a single order.

Support contracts:

• Support contracts consist of a Service Level Agreement (SLA).

3. Services by NoseDat

3.1 NoseDat provides the following services to the customer: project preparation, project implementation, support services, strategic consulting services.

3.2 Services are distinguished between implementation services and consulting services.

3.3 Description of implementation services: Software development and parameterization to meet customer-specific requirements.

3.4 Description of consulting services: Services to support the customer. These include analyses, project planning, training, documentation, concepts, architecture, identification of application errors, among others.

4. Compensation / Prices / Payment Terms

4.1 The terms of service are recorded in a service contract or a single order.

• The terms are exclusive of VAT.
• The terms are exclusive of travel costs.

4.2 Services provided by NoseDat are invoiced to the customer monthly based on the defined conditions.

4.3 NoseDat is entitled to adjust the conditions at the end of each year. The adjusted conditions will be communicated to the customer in writing by the end of the year.

4.4 The customer must pay all invoiced amounts without deduction within 14 days of receiving the invoice.

4.5 In the event of payment default, NoseDat is entitled to suspend services after the first written reminder. Exempt from this are works related to defect correction, provided the customer’s rights concerning these defects have been legally established, are undisputed, or have been acknowledged by NoseDat.

4.6 If the customer intends to enter into a leasing or financing agreement to fund deliveries and services, they must inform NoseDat in writing at least 30 days before the delivery or service execution. If such financing is arranged, the other rights and obligations from this contract remain unchanged between NoseDat and the customer, apart from the direct remuneration claims against the customer.

5. Offsetting / Right of Retention

5.1 The customer may assert offsetting and retention rights only if their counterclaims have been legally established, are undisputed, or acknowledged by NoseDat. Additionally, asserting such rights requires that the customer’s counterclaim arises from the same contractual relationship.

6. Service Locations and Times

6.1 Services provided by NoseDat are typically delivered at the following locations: customer sites, NoseDat offices, remotely.

6.2 Services are generally provided between 8:00 AM and 5:00 PM, Monday to Friday, excluding public holidays of the respective NoseDat national company.

7. Freelancers & Partners

7.1 NoseDat is entitled to subcontract its contractual obligations or parts thereof to external partner companies as subcontractors.

8. Schedule

8.1 The project schedule, including milestones, is recorded in the contract.

• The defined milestones reflect the knowledge at the time of contract creation.
• Adjustments are made during the project as part of a Change Request, which must be approved by the Steering Committee.

8.2 Milestones: To meet the target dates that NoseDat has committed to, all defined customer obligations must be met. In particular, the availability of key users must be ensured. A detailed description of the obligations is recorded in the SOW or similar contract.

8.3 The completion of a project phase is indicated within the Steering Committee.

• The customer is obliged to review the respective work result within 14 days after the completion of the project phase.

8.4 The contracting parties shall inform each other immediately of foreseeable delays and jointly take measures to adjust the schedule accordingly.

8.5 Neither party shall be liable for delays caused by force majeure, such as epidemics, pandemics, governmental orders, strikes, wars, terrorist attacks, embargos, third-party delivery bans, revocation of export licenses, and similar events.

9. Customer Obligations

9.1 The customer is responsible for the operation and maintenance of the software, for data and program backup and recovery, ensuring disaster recovery solutions, training their personnel, and reviewing the results achieved with the software.

9.2 The customer agrees to provide NoseDat with all information and documents necessary for the proper fulfillment of the contract in a timely and complete manner and to grant the necessary approvals.

9.3 The customer designates a responsible contact person to NoseDat, with whom all activities of NoseDat are coordinated, and who is authorized to make or receive binding statements on technical and organizational matters.

9.4 The customer ensures that appropriate premises are made available for the realization of the project.

9.5 Customer obligations are essential duties. They are agreed upon and recorded on a project-by-project basis. If the customer fails to fulfill or adequately fulfill their obligations in a timely manner, they agree to bear any additional costs incurred.

10. Change Management

10.1 Changes in the scope of services are requested via the Change Request Form provided by NoseDat.

10.2 NoseDat will review the Change Request and its impact on the project.

• A Change Request affects the following elements: budget, schedule, and scope.
• A Change Request must be approved by both parties. Without approval from both parties, it will not be implemented within the project. The costs for the review will be invoiced to the customer based on time and effort.

10.3 After review and positive assessment, NoseDat will offer the customer the execution of the Change Request. If the customer accepts the offer, the change becomes part of the contract, and the schedule as well as the originally agreed remuneration will be adjusted accordingly.

11. Cancellation

11.1 If the customer cancels agreed deliveries or services before they have been performed by NoseDat, NoseDat is entitled to charge the customer 30% of the lost order value. If service execution has already started, NoseDat may additionally charge for the expenses and costs incurred up to the time of cancellation.

11.2 Any obligation for compensation due to cancellation is waived if deliveries and services are canceled, changed, or replaced by mutual agreement of the contracting parties.

12. Acceptance

12.1 Services are ready for acceptance upon installation or delivery of the application code. NoseDat will notify the customer of the readiness for acceptance. The customer will review the result of the ready-to-accept implementation services for contractual compliance. Any defects identified must be reported in writing to NoseDat immediately, providing the necessary information and documents for defect correction. Errors will be classified by severity.

12.2 If the review reveals no or only minor defects, the work result is considered accepted upon completion of the review. The customer confirms acceptance on the form provided by NoseDat, which also lists any minor defects.

12.3 If significant defects are identified during the review, acceptance of the affected work result will be postponed. NoseDat will correct the defects within a reasonable period and notify the customer of the completion of defect correction. The customer will promptly review the corrected work result after receiving this notice.

12.4 If the customer does not report any significant defects within 30 days of notification of readiness for acceptance, the work result is considered accepted, even if the customer does not declare acceptance. The productive use of the work result without defect notice is conclusively presumed to constitute acceptance and approval of the work result.

13. Rights to the Results

13.1 Ownership and all protective rights, especially copyrights, to the results of the implementation services, including related documents, belong exclusively to NoseDat and may be used and exploited by NoseDat as it wishes in relation to the customer.

13.2 The customer is granted a perpetual, non-exclusive, non-transferable, and non-assignable right to use the results of the implementation services for internal business purposes. The right to use is limited to the customer’s employees and freelancers. If the result of the implementation services is software, the customer is entitled to modify or adapt the application code as necessary for the use of the software.

14. Data Protection / Confidentiality

14.1 The customer agrees that data may be processed and used by NoseDat to fulfill its service obligations, including the transfer of data to affiliated companies of NoseDat. Both parties commit to ensuring data protection through appropriate measures.

14.2 NoseDat and the customer mutually agree to keep all non-publicly known and non-publicly accessible documents and information from the other party’s business confidential and not to disclose or make them accessible to unauthorized third parties in any way. This obligation extends to the employees and agents of the contracting parties and remains in effect after the termination of the contractual relationship with the customer, as long as there is a legitimate interest in confidentiality.

15. Loyalty

15.1 Persons who have worked for the customer on behalf of NoseDat may not be employed or engaged by the customer in any other form for services. This applies for one year after the last deployment of the person. A “recruitment fee” of CHF 25,000 will be charged for violations.

16. Transfer of Rights and Obligations

16.1 The transfer of rights and obligations from the customer contract to third parties is not permitted without prior consent from the contracting partner. Consent is deemed granted if the contracting partner does not object in writing within 10 days of receiving the transfer notice. The contracting partner may only refuse consent for factual reasons.

17. Warranty

17.1 NoseDat guarantees that the delivery or result of the implementation services is suitable for contractual use, as specified in the requirements for the respective implementation services. Any deviation that is insignificant, particularly if it does not significantly affect usability, is disregarded.

17.2 The warranty obligation exists under the following conditions:

• The defect is not in the standard application of Microsoft or another software provider.
• The defect reported as a fault is reproducible, occurred in the latest software version adopted by the customer, and is documented by the customer.

17.3 NoseDat will carry out a fault diagnosis for a defect reported by the customer. The customer agrees to compensate NoseDat for the time spent and costs incurred for the fault diagnosis at the applicable rates. If the fault diagnosis shows that NoseDat is responsible for the defect, NoseDat will not charge for the fault diagnosis or will refund any costs already paid by the customer for the diagnosis.

17.4 Statements in documentation, brochures, project descriptions, etc. do not constitute warranty promises. Qualified assurances in the sense of a warranty can only be claimed if NoseDat has expressly and in writing provided them.

18. Warranty Exclusion

18.1 Any warranty obligation of NoseDat is excluded for defects caused by a violation of usage instructions or improper handling. Warranty is also excluded for defects resulting from the customer making changes to the software without prior written approval from NoseDat or having such changes made by third parties.

18.2 Third-party products, for which NoseDat merely holds a distribution right, are designated as such in single orders. For defects in such a product, NoseDat excludes its own defect liability. However, it assigns the warranty claims (right to rectification, claims for reduction and cancellation, refund of paid fees, and claims for consequential damages) it has against the third-party supplier to the customer.

19. Defect Rights

19.1 In case of a defect for which NoseDat is liable, the customer initially only has the right to request rectification within a reasonable period, provided that rectifying the defect is objectively possible.

19.2 NoseDat will, at its discretion, carry out the rectification as it sees fit. Rectification may, for example, be carried out by issuing patches or releases or by providing a workaround solution.

19.3 If NoseDat fails to correct the defect within the appropriate rectification period, and two further reasonable grace periods set by the customer expire unsuccessfully, the customer is entitled to either reduce the compensation claim for the defective implementation service or withdraw from the project contract, provided the software solution as a whole suffers from such substantial defects that it is unusable for the customer for the intended purpose or acceptance is unreasonable.

19.4 The warranty period, in the sense of a limitation period for the customer’s defect claims, is 6 months and begins for the result of the implementation services with acceptance. Defects discovered during this period must be reported immediately after discovery.

20. Liability / Limitation of Liability

20.1 NoseDat is liable under this contract only for damages caused by intent or gross negligence. Liability for slight negligence as well as, in cases of sales law warranty, no-fault liability for direct damages is expressly excluded. Excluded to the legally permissible extent is liability for data loss or the costs of data recovery.

20.2 Other or further liability claims, regardless of the legal basis, including liability for indirect and consequential damages (e.g., losses due to business interruption, unrealized savings, lost profits, or claims from third parties against the customer), are also excluded to the legally permissible extent.

20.3 The limitation of liability in these GTC also applies to damages caused by subcontractors and other agents engaged by NoseDat.

20.4 Neither party shall be liable for damages caused by force majeure, such as epidemics, pandemics, wars, terrorist attacks, embargos, third-party delivery bans, revocation of export licenses, and similar events.

21. Final Provisions

21.1 Side agreements and contract amendments: Changes or additions to these GTC or side agreements require written form and signature by both the customer and NoseDat to be valid. This formal requirement can only be waived by written agreement.

21.2 Counter-Clause: “General Terms and Conditions of Purchase and Supply” or other “Terms and Conditions” of the customer do not become part of the contract.

21.3 Severability Clause: Should individual provisions of the contract concluded with the customer prove to be null, invalid, or unenforceable, this shall not affect the validity, effectiveness, and enforceability of the remaining parts of the contract. The contracting parties agree to interpret and modify the contract so that the economic purpose pursued by the invalid or unenforceable provision is achieved as far as possible.

21.4 Governing Law: This contract is governed by the national law of the respective NoseDat subsidiary; the applicability of the UN Sales Convention is excluded.

21.5 Dispute Resolution: The contracting parties agree to seek an amicable settlement in case of disagreements before resorting to legal action.