General Terms
Dewave
Table of Contents
Disclaimer: This document is an AI-generated translation of the German original and is provided for convenience only. In the event of any discrepancies, the original German version shall prevail.
1. Scope of Application
1.1 These General Terms and Conditions govern the content, conclusion, and execution of orders under which Dewave GmbH, Bahnhofstrasse 59, CH-6312 Steinhausen (hereinafter "Dewave") provides services in the areas of AI Services, Digital Business, Development, and Online Communication to the contractual partner (hereinafter "Customer") in commercial business transactions.
1.2 Unless expressly stated otherwise, these General Terms and Conditions are deemed an integral part of every offer by Dewave or a contract concluded with the Customer, hereinafter uniformly referred to as "Project Contract" (includes project, service, or framework contracts), regardless of whether the contract was concluded in text form (such as by email or fax) or in writing. The General Terms and Conditions also apply to future business relationships between the parties without requiring separate inclusion in each individual case.
1.3 Deviating general terms and conditions of the Customer shall only apply if they have been acknowledged in writing by Dewave. This also applies if Dewave provides services without expressly objecting to the Customer's general terms and conditions.
1.4 In the event of contradictions between the General Terms and Conditions, the Project Contract takes precedence over the General Terms and Conditions. The General Terms and Conditions take precedence over the offer. Deviating agreements in the Project Contract remain reserved.
2. Offer
2.1 Dewave creates an offer and submits it to the Customer for review.
2.2 Unless expressly stated otherwise, Dewave remains bound to the offer for a maximum of 30 days from the date of dispatch.
2.3 A binding contract is concluded through the unconditional acceptance of the offer by the Customer or the conclusion of an additional Project Contract.
3. Project Organization
3.1 Organizational Structure
3.1.1 The parties agree in the Project Contract on an organization appropriate to the complexity of the project. This consists of at least one primary contact person (hereinafter "Project Manager") from both parties and a representative of the same.
3.1.2 The Project Manager of Dewave will inform the Customer at regular intervals about the project progress and obtain decisions from the Customer in case of ambiguities.
3.1.3 For larger projects, a Steering Committee consisting of management representatives from both parties will also be established. Dewave will keep short minutes of the Steering Committee meetings, which will be sent to the Customer within a reasonable time. Without a written counter-report from the Customer within five working days, the minutes of the Steering Committee meeting are deemed approved.
3.1.4 Any dispute arising under a Project Contract must first be submitted to the Steering Committee, which shall handle the matter within three working days (escalation procedure).
3.2 Subcontractors
3.2.1 Dewave is entitled to involve subcontractors (e.g., freelancers, third-party service providers) for the purpose of fulfilling its contractual obligations. Dewave is liable for the services of subcontractors – subject to the following provisions under sections 3.2.2 and 3.2.3 – as for its own services.
3.2.2 However, if the involvement of a specific subcontractor is initiated by the Customer and this subcontractor is commissioned in the name and on behalf of Dewave, Dewave's responsibility is reduced to the careful instruction and supervision of this subcontractor.
3.2.3 Insofar as the Customer cannot assert claims against Dewave as a result of the provision in section 3.2.2, Dewave assigns its claims against the commissioned third party, such as from impossibility, delay, liability for defects, or other breaches of duty, to the Customer.
4. Scope of Services
4.1 General
4.1.1 Dewave provides the services specified in the respective Project Contract or offer.
4.1.2 Unless otherwise specified in the Project Contract, Dewave owes the provision of services, which are carried out by Dewave with due care, taking into account the state of the art. Insofar as the provision of works is expressly agreed, Dewave owes the contractual fulfillment of the agreed specifications. All other features of the scope of services, functionalities, or suitability for specific purposes assumed by the Customer but not expressly agreed with Dewave are not part of Dewave's contractual obligations.
4.1.3 Unless otherwise agreed in the Project Contract, Dewave provides the usual developer notes as electronic documentation when creating individual software. No further documentation is created.
4.2 Changes to the Scope of Services
4.2.1 Either party may request changes to the agreed services at any time with a precise description of the desired changes.
4.2.2 In the case of change requests by the Customer, Dewave will inform the Customer within a reasonable time whether a requested change is possible and what effects on the other services, the schedule, and the previous remuneration are to be expected. For change requests that require extensive review or expenses, Dewave is entitled to demand a commitment from the Customer to bear the costs at the agreed rates before reviewing these requests.
4.2.3 If Dewave submits a change request to the Customer, the Customer will decide on this change request within 10 working days.
4.2.4 Subject to deviating agreements, a binding contract amendment requires the form of the Project Contract in which the changed service was agreed.
4.3 Use of Artificial Intelligence
4.3.1 Dewave is entitled to use Artificial Intelligence (AI) in the provision of services. Dewave ensures that no confidential customer data or personal data flows unencrypted or contrary to the contract to third-party AI providers. The passing on of specific AI license fees or costs for AI-based tools only takes place if this has been expressly agreed in advance in the offer or Project Contract.
5. Obligations of the Customer to Cooperate
5.1 General
5.1.1 The parties work together in the best possible way to ensure the timely and performance-related fulfillment of the Project Contract. This requires, among other things, special cooperation obligations from the Customer, which they must ensure.
5.1.2 Specifically, this means that the Customer must fulfill the following cooperation obligations in particular:
Ensuring a functional customer-side project organization
Provision of the necessary and agreed personnel resources with the required expertise and decision-making authority
Ensuring an adequate representation regulation and an escalation procedure
Ensuring the participation of decision-makers in regular project meetings
Timely provision of all information useful and necessary for the project (e.g., changes in the project organization or schedule postponements at the Customer)
Timely decision-making and rapid response to inquiries
Timely delivery of customer content in digital form as well as guidelines required for the project (e.g., content guidelines, customer-specific fonts/colors)
Provision of the working environment necessary for the project (e.g., access to the Customer's premises and access to their systems and data)
For contractual services, participation and cooperation in functional testing and acceptance (e.g., proper and timely testing) according to the defined acceptance procedure
Ensuring data security, regular data storage, and data protection in the area of their systems.
5.2 Breach of Cooperation Obligations
5.2.1 The Customer is aware that a breach of the cooperation obligations according to section 5.1 and the respective Project Contract can have a negative impact on the provision of services by Dewave. Any additional effort by Dewave caused by a breach of the Customer's cooperation obligations must be additionally remunerated by the Customer according to the agreed rates.
5.2.2 Insofar as Dewave is prevented from providing its contractual services at the agreed time or at the agreed costs due to the breach of the Customer's cooperation obligations, the relevant deadlines will be extended, or the agreed costs will be adjusted according to the additional effort caused.
5.2.3 Further legal rights of Dewave remain unaffected by the above provisions.
6. Deadlines
6.1 The agreed deadlines are target dates unless they have been defined as binding in the Project Contract. Dewave will inform the Customer of possible delays as soon as they become apparent to Dewave.
6.2 In the event of a delay caused by Dewave, Dewave shall be in default after an unsuccessful reminder with a grace period of 30 days by the Customer. If Dewave cannot fulfill its obligations even after this grace period has expired, Dewave is liable to the Customer in accordance with section 11 for the direct damage demonstrably incurred by the Customer due to the delay.
7. Remuneration
7.1 Remuneration Based on Effort (Standard Regulation)
7.1.1 Dewave generally provides its services based on effort at the agreed rates (Time & Material). Unless expressly agreed otherwise in the offer or Project Contract, all orders are billed according to the actual effort provided. The effort calculated by Dewave in the context of such an approach is generally considered a non-binding estimate of effort.
7.1.2 Alternatively, the parties can agree on a fixed price. This is always considered binding. In the case of agreed fixed prices, the Customer is obliged to make an advance payment of at least 50% of the agreed fixed price. Otherwise, partial payments will be invoiced according to project progress.
7.2 Pricing
7.2.1 Travel time is considered normal working time.
7.2.2 Remuneration can be defined by hours or daily rates, with a daily rate comprising 8 working hours.
7.2.3 The rates applied by Dewave and the prices offered are in CHF plus statutory value-added tax and expenses.
7.3 Expenses and Disbursements
7.3.1 Expenses are to be compensated separately. Travel expenses for car journeys are charged at CHF 1/km. Hotel, train, flight, and catering costs are invoiced at cost.
7.3.2 In the case of longer external assignments of Dewave employees, the Customer and Dewave will agree on travel and accommodation solutions appropriate to the project.
7.4 Budget Exceedance Regulation
7.4.1 The budget recommended in the offer or Project Contract serves as a guideline and is not binding.
7.4.2 A budget exceedance of a maximum of 10% compared to the recommended budget can take place without further consent from the Customer. Dewave is entitled to continue its work to this extent.
7.4.3 If it becomes apparent that the recommended budget will be exceeded by more than 10%, Dewave is obliged to inform the Customer in good time and comprehensively. The notification must take place before the exceedance actually occurs to give the Customer the opportunity to make decisions or initiate appropriate measures. Dewave will inform the Customer of the expected additional costs and the reasons for the budget exceedance.
7.4.4 After notification in accordance with section 7.4.3, the parties will immediately agree on how to proceed. The Customer can:
a) allow the project to continue with an increased budget;
b) adjust or reduce the scope of the project;
c) cancel or suspend the project.
7.4.5 If no written decision from the Customer is received within 3 working days after notification, a temporary work stoppage will occur to avoid further unauthorized costs. The resulting project delays are entirely at the Customer's expense. The costs incurred up to that point will be invoiced according to the agreed rates.
7.4.6 If the project is canceled by the Customer due to a budget exceedance, Dewave is entitled to full compensation for all services rendered up to the time of cancellation at the agreed rates as well as reimbursement of expenses incurred. Further claims for damages remain reserved.
7.5 Invoicing
7.5.1 Invoicing generally takes place once a month. For payment terms longer than 30 days, invoicing takes place every 14 days.
7.5.2 Invoices from Dewave are deemed approved unless the Customer objects to them with a justification within 10 working days of receipt.
7.5.3 Invoices from Dewave are due for payment strictly net within a payment period of 30 days. The default interest rate is 6% p.a.
7.5.4 After repeated reminders, Dewave is entitled to charge a reminder fee of CHF 40.- plus default interest.
7.5.5 Invoices are sent electronically. Upon request, they can also be sent by post within Switzerland for a fee of CHF 10.- per invoice.
7.6 Price Changes
7.6.1 Dewave is entitled to a reasonable increase in the agreed rates after written notification. Such an increase takes effect at the earliest 3 months after the end of the month in which Dewave notified the Customer of the change. It may not exceed the rates of the preceding twelve-month period by more than 10%.
8. Rights of Use
8.1 Rights to Contractual Services of Dewave
8.1.1 Upon full payment of the agreed remuneration, the Customer acquires ownership of the contractual services specifically developed for the Customer by Dewave in the context of fulfilling the contract according to the Project Contract, e.g., concepts, individual software, customization services, tools, and documentation (hereinafter "Work Results"), including copyright and industrial property rights. Dewave hands over the source code of the individual software to the Customer after full payment of the remuneration owed.
8.1.2 The individual software does not include the standardized codes developed and used by Dewave, which represent the Dewave Code Library (Dewave Code Library Components, hereinafter "CLCs").
8.1.3 The Customer receives the non-exclusive right to use these CLCs indefinitely and without spatial restriction for the purpose agreed in the Project Contract. All other rights, including copyrights to the CLCs, remain with Dewave.
8.2 Rights to Third-Party Components
8.2.1 Insofar as Dewave owes the delivery of third-party components, such as standard software from third parties or open-source applications (hereinafter "Third-Party Components"), Dewave undertakes to procure for the Customer a right of use (license) corresponding to the provisions of the rights holder in accordance with customary distribution agreements with the rights holder.
8.2.2 The Customer's rights to Third-Party Components are based on the contractual provisions of the respective rights holder. The Customer undertakes to comply with these provisions and to pay the agreed license fees. The material or legal warranty for the Third-Party Components is excluded.
8.2.3 Dewave draws the Customer's attention to the cost consequences of Third-Party Components known at the respective time in its offers or effort estimates as well as in connection with any subsequent change requests.
9. Functional Testing and Acceptance
9.1 Functional Testing
9.1.1 Acceptance is carried out for agreed contractual services (Work Results).
9.1.2 The acceptance of contractual services begins with a functional test by the Customer. The functional test is successfully carried out if the Work Result essentially corresponds to the contractually agreed specifications and no defects preventing acceptance according to section 9.2.2 are found. The type and scope of the functional test are agreed in the Project Contract. The functional test can also be carried out on partial results.
9.1.3 Unless otherwise agreed in the Project Contract, the functional test begins at the latest 5 working days after notification of readiness for acceptance to the Customer and usually lasts 5 working days. After the functional test, the results are recorded by the parties in a joint acceptance protocol.
9.2 Acceptance
9.2.1 For acceptance, the defects found during the functional test are classified as follows:
•Class A, Operation-Preventing Defect: An operation-preventing defect exists if the use of the overall system is impossible or severely restricted. This means created functions cannot be used completely or correctly or produce significantly incorrect results.
•Class B, Operation-Hindering Defect: An operation-hindering defect exists if the use of the overall system is significantly restricted. Specifically, this means that functions can be used, but use is significantly hindered, e.g., due to defective, incomplete, or undisplayed values on the screen or printer.
•Class C, Minor Defect: A minor defect exists if the use of the overall system is possible with slight restrictions.
9.2.2 Acceptance is deemed successfully carried out if no Class A defect occurs and a maximum number of 10 Class B defects is not exceeded. Class C defects and 10 or fewer Class B defects do not entitle the Customer to refuse acceptance. In such a case, Class B and C defects must be remedied within the scope of the warranty.
9.2.3 With the conclusion of the acceptance test, the Work Result is deemed accepted.
9.2.4 The start of productive use of the Work Result by the Customer also equals acceptance.
9.2.5 If the Customer does not carry out the acceptance within a reasonable grace period, the Work Result is also deemed accepted.
9.3 Failure and Repetition of Acceptance
9.3.1 After acceptance, Dewave carries out the rectification of defects found during the acceptance test within a reasonable time and invites the Customer to a retest after completion of the rectifications.
9.3.2 If defects preventing acceptance (Class A defects and more than 10 Class B defects) are found again, the Customer is obliged to grant Dewave a further reasonable grace period, usually of 30 working days, for renewed rectification.
9.3.3 If Dewave is unable to remedy the defects preventing acceptance even within this grace period, the Customer is entitled to make a deduction from the agreed remuneration corresponding to the reduced value of the Work Result. The right to cancellation is excluded unless the Work Result is demonstrably completely useless for the Customer and rectification finally fails.
10. Warranty
10.1 Material Defects
10.1.1 Dewave guarantees that the Work Results, including the CLCs, correspond to the service description agreed in the Project Contract. Dewave assumes no warranty for services provided within the meaning of Art. 394 of the Swiss Code of Obligations (OR).
10.1.2 The Customer will completely document all defects that occur within 6 months after acceptance in a comprehensible manner for Dewave and report them immediately, handing over a precise description.
10.1.3 Functional impairments to the Work Results resulting from the Customer's hardware or software environment, defective data, insufficient cooperation, improper use, or other circumstances originating from the Customer's sphere of responsibility do not constitute a defect. The warranty for material defects in the Work Results also presupposes that the Customer does not modify them themselves or through third parties without authorization or improperly or use them contrary to the contractual specifications (e.g., on a different system environment) or the user documentation, unless the Customer proves that the defect is independent of this.
10.1.4 Insofar as there is a defect in the Work Results, Dewave is entitled and obliged, at its discretion, to provide supplementary performance in the form of rectification or replacement delivery within a reasonable time. If the supplementary performance finally fails (at least two attempts at supplementary performance per defect), the Customer can demand a reduction in the remuneration. Cancellation is excluded unless the Work Result is demonstrably completely useless for the Customer. For claims for damages and reimbursement of futile expenses due to defects, section 11 of these General Terms and Conditions applies.
10.2 Legal Defects, Third-Party Property Rights
10.2.1 Dewave guarantees the Customer that the Work Results, including the CLCs, are free of third-party copyrights and that, to Dewave's knowledge, no other third-party property rights exist that would preclude a transfer of rights to the Customer according to the Project Contract.
10.2.2 If third parties assert claims against the Customer arising from the infringement of their copyrights or other property rights as a result of the contractual use of the Work Results, the Customer will inform Dewave immediately in writing and comprehensively. Dewave is entitled, but not obliged, to conduct the dispute with the third party alone, both in and out of court. If Dewave makes use of this right, the Customer will support Dewave free of charge to a reasonable extent. The Customer will not acknowledge the claims of the third party on their own initiative.
10.2.3 In the event of legal defects, Dewave provides a legally flawless possibility to use the Work Results, at Dewave's discretion, by modifying or exchanging them while retaining the essential contractually agreed functions, by acquiring the necessary rights of use from the rights holder, or in another suitable and reasonable manner for the Customer.
10.2.4 Dewave will indemnify the Customer within the liability limits of section 11 of these General Terms and Conditions against damages caused by the infringement of copyrights or other property rights, insofar as these are based on a legal defect for which Dewave is responsible. Otherwise, the provisions for material defects in section 10.1 of these General Terms and Conditions apply mutatis mutandis to the Customer's claims due to legal defects.
11. Liability
11.1 Dewave is liable without limitation for damages arising from intentional or grossly negligent breach of contract.
11.2 For slight and medium negligence as well as for indirect damages, consequential damages, lost profits, loss of data, or business interruptions, Dewave's liability is completely excluded to the extent permitted by law.
11.3 In any case, liability for slight and medium negligence per damage event is limited to the amount of the remuneration owed or paid under the relevant Project Contract.
11.4 The above limitations of liability apply to the same extent in favor of Dewave's organs, legal representatives, employees, and subcontractors.
11.5 Liability for damages arising from injury to life, body, or health as well as liability under the Product Liability Act remain unaffected by the above provisions.
12. Statute of Limitations
12.1 The limitation period for all claims of the Customer due to defects as well as for damages and reimbursement of futile expenses is 6 months.
12.2 The statutory limitation of claims against Dewave due to intentional or grossly negligent breaches of duty, in the event of fraudulent concealment of a defect, the assumption of a guarantee, as well as for personal injury and under the Product Liability Act remains unaffected.
13. Confidentiality, Data Protection
13.1 The parties mutually commit themselves and, through a corresponding agreement, their employees and consulted auxiliary persons to maintain the confidentiality of all not generally known documents and information relating to the business sphere of the other party and becoming accessible to them during the preparation and execution of the Project Contract. Any statutory disclosure obligations remain reserved.
13.2 The parties commit themselves and, through a corresponding agreement, their employees and consulted auxiliary persons to comply with the provisions of the relevant national data protection law and the European regulations on data protection. In particular, they will ensure that they have taken all necessary technical and organizational measures so that the personal data affected in the context of fulfilling the contract are effectively protected. Personal data of which the parties mutually become aware during the execution of the contract may only be used for the existing contractual relationship and may not be processed for purposes other than the aforementioned, passed on to third parties, sold, or made available in any other way.
13.3 The confidentiality and data protection obligation remains in force even after termination of the contractual relationship as long as there is a legitimate interest in it.
14. Training
14.1 Upon order by the Customer and against corresponding additional remuneration, Dewave is available to the Customer for suitable training of the Customer's employees dealing with the Work Result.
15. Maintenance
15.1 Dewave offers to maintain and further develop the Work Results created by it upon order by the Customer and against corresponding additional remuneration. Corresponding services from Dewave require the conclusion of a separate maintenance contract between the Customer and Dewave.
16. Waiver of Employment
16.1 During the term of a Project Contract and for one year after termination of the Project Contract, the parties will not actively poach employees from each other and will only employ employees of the other party who apply on their own initiative with the prior consent of the other party.
16.2 In the event of a breach of this provision, the breaching party owes the injured party a contractual penalty in the amount of an annual income (gross) of the respective employee, but at least CHF 50,000, subject to damages exceeding this amount. Even after payment of the contractual penalty and the exceeding damage, the injured party remains additionally entitled to demand that the breaching party eliminate the condition contrary to the contract.
17. References
17.1 Dewave is entitled to use the Customer and the project name for reference purposes without temporal or spatial restrictions (mentioning with name and logo), in particular on its own website or in marketing materials. Detailed case studies, press releases, or specialist articles are only carried out after prior coordination and written consent of the Customer.
18. Contract Duration and Termination
18.1 Unless otherwise agreed in the Project Contract, the contract enters into force upon its conclusion and ends upon expiration of time or upon fulfillment of the contractual performance obligations.
18.2 If the Customer terminates a contract prematurely, Dewave has at least the right to full compensation for the time spent up to the time of termination and all expenses incurred at the rates applied by Dewave at the time of service provision. The assertion of further damages, in particular due to unavoidable idle times or lost profits, remains reserved.
18.3 Regardless of formal acceptance, the Work Result is deemed accepted, unless a deviating contractual arrangement has been made, at the latest one month (30 calendar days) after the first start of productive use (go-live) by the Customer, and the project is considered officially completed.
19. Final Provisions
19.1 Place of Performance
19.1.1 The place of performance for all obligations that may arise from a Project Contract is the place of business of Dewave that concluded the respective Project Contract.
19.2 Written Form
19.2.1 Changes and additions to these General Terms and Conditions require a written agreement and only apply to the Project Contract that includes this agreement. This also applies to the waiver of this written form requirement.
19.3 Severability Clause
19.3.1 If individual provisions of these General Terms and Conditions prove to be wholly or partially invalid or unlawful, the validity of the remaining provisions shall not be affected thereby. In this case, the provision in question shall be replaced by an effective provision that is as economically equivalent as possible. In the event of regulatory gaps, the above provision applies accordingly.
19.4 Applicable Law and Jurisdiction
19.4.1 The legal relations between the parties, including the Project Contracts, are subject to Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
19.4.2 The parties agree on the place of business of Dewave that concluded the respective Project Contract as the exclusive place of jurisdiction.
19.4.3 These General Terms and Conditions are deemed fully accepted by the Customer and agreed as an integral part upon signature of the Project Contract or written acceptance of the offer by the Customer.
19. Final Provisions
19.1 Place of Performance
19.1.1 The place of performance for all obligations that may arise from a Project Contract is the place of business of Dewave that concluded the respective Project Contract.
19.2 Written Form
19.2.1 Changes and additions to these General Terms and Conditions require a written agreement and only apply to the Project Contract that includes this agreement. This also applies to the waiver of this written form requirement.
19.3 Severability Clause
19.3.1 If individual provisions of these General Terms and Conditions prove to be wholly or partially invalid or unlawful, the validity of the remaining provisions shall not be affected thereby. In this case, the provision in question shall be replaced by an effective provision that is as economically equivalent as possible. In the event of regulatory gaps, the above provision applies accordingly.
19.4 Applicable Law and Jurisdiction
19.4.1 The legal relations between the parties, including the Project Contracts, are subject to Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
19.4.2 The parties agree on the place of business of Dewave that concluded the respective Project Contract as the exclusive place of jurisdiction.
19.4.3 These General Terms and Conditions are deemed fully accepted by the Customer and agreed as an integral part upon signature of the Project Contract or written acceptance of the offer by the Customer.