General terms and conditions of the Rey companies
Unless otherwise agreed in writing between the parties, these General Terms and Conditions (hereinafter referred to as "GTC") shall apply to all deliveries and services of the Rey companies, namely Rey 360 Holding AG [UID: CHE-398.217.352], Rey Technology Holding AG [CHE-275.651.197], Rey Automation AG [UID: CHE-108.042.994], Rey Informatik AG [UID: CHE-115.251.959], Rey Immobilien AG [UID: CHE-398.018.189], Rey Digital AG [UID: CHE-284.008.847] as well as Rey GmbH in 79111 Freiburg im Breisgau [HRB 703684].
These GTC shall apply if the customer expressly or tacitly acknowledges them or if the provision of services has commenced. Deviating provisions of the customer shall only apply if their validity has been expressly agreed to in writing, even if reference is made to them in requests for quotations or other documents.
II. conclusion of contract
Contracts between the customer and a Rey company shall be deemed to have been concluded when such a Rey company (hereinafter: "service-providing Rey company") has confirmed acceptance of the order or purchase order, including possible change requests, in a form that can be verified in text (order confirmation or individual contract) or has begun to provide the service.
Only the relevant Rey company shall remain a party to the contract at all times, even if other Rey companies provide services owed under the contract, irrespective of the degree of integration, other Rey companies communicate directly with the customer, any title provides for any rights of claim against Rey companies other than the contracting party, or if composition proceedings or bankruptcy should be instituted against the contracting party.
Quotations without a time limit are not binding.
III. service provision
The order confirmation or an individual contract shall be authoritative for the scope and execution of all deliveries and services, standby and response times (SLA) as well as usage times and availabilities. License fees, material or services not listed therein will be charged additionally. For provided software solutions (applications, cloud computing, software as a service) no permanent or interruption-free availability is guaranteed.
To the extent that this is reasonable for the customer, the Rey companies may deliver modified or adapted hardware and software or provide other services deviating from order confirmations and contracts. Such changes are reasonable in particular if the agreed functional capability is not impaired thereby. The same shall apply in the event of deviations in the user documentation from the content of the contract and/or deliveries and services, namely in the case of descriptions and illustrations. In no case shall such deviations constitute warranties for properties or an amendment of the contract. Extensions of software to be maintained with the same or similar functions (upgrades) as well as updates of the documentation in case of subsequent adjustments within the scope of software maintenance shall only be subject matter of the contract if agreed.
The customer accepts the terms of purchase or use of the respective third party provider associated with standard software. Furthermore, Customer expressly accepts that the Rey Companies may use Free/Libre Open Source Software components and that such components are subject to applicable license terms for Customer.
The contractual service does not include short telephone and electronic consultations that are equivalent to user training and questions that are to be answered by reading user manuals or other documentation.
The outsourcing of contractually owed services to subcontractors and to other Rey companies is expressly permitted.
All prices are in Swiss francs, exclusive of value added tax and incidental expenses such as travel expenses (time and travel), fees and royalties, levies of any kind, customs duties, transport, packaging, insurance, etc.
The services rendered by the Rey Companies shall be remunerated by the Customer at a fixed price or according to the time spent. Unless a lump-sum payment is agreed, any time spent stated shall always be merely an estimate. In this case, the actual time required for the provision of the services will be charged. The rate of remuneration per hour is CHF 220.00, unless otherwise agreed. In addition to the actual provision of services, the time spent by the customer shall also include, in particular, participation in meetings and project sessions as well as any preparatory and follow-up work, irrespective of the location.
Currency fluctuations, a significant postponement of the delivery date, changes in relevant regulations, further developments, worsened availabilities as well as changed products, prices or conditions at suppliers shall entitle the Rey Companies to adjust prices.
Additional costs resulting from incomplete, incorrect or late information or subsequent change(s) (requests) shall be borne by the customer.
V. Terms of payment
Payments are to be made by the customer net, without deduction of discounts, expenses, taxes, levies, fees, customs duties and the like. In the absence of any written agreement to the contrary, the following shall apply:
a) In the case of fixed prices: 50% as a down payment within 14 calendar days after the date of the order confirmation or signing of the contract; 40% upon complete delivery or commissioning and 10% after acceptance;
b) According to expenditure: In each case following the reporting month;
c) Expenses: In each case following the reporting month;
d) Material/hardware/etc. supplies, licenses for software: 100% after signing of contract or before order by Rey company;
e) Permanent contracts: Quarterly in advance.
All invoices from Rey companies are payable within 14 calendar days of the invoice date. Unless the customer notifies Rey by the due date, indicating the disputed amount and the reasons for the dispute, an invoice shall be deemed accepted. The customer's obligation to pay shall be deemed to be fulfilled only after receipt of the amount at the free disposal of the Rey company providing the service.
The payment dates shall also be observed if the dispatch, transport, data connections or commissioning or acceptance of deliveries and services is delayed or rendered impossible for reasons beyond the control of the Rey Company providing the service or if insignificant parts of deliveries and services are still missing or if rework proves necessary which does not render the use of deliveries and services entirely impossible.
If the customer fails to meet a payment deadline, the customer shall be in default in all cases without reminder and shall pay interest on arrears of 5% from the 15th calendar day after the invoice date. The Rey Company providing the service is entitled to compensation for handling costs of CHF 30.00 per reminder. In case of default of payment by the Customer or if it is seriously to be feared that a payment by the Customer will not be made in full or in due time, the Rey Company shall be entitled, without prejudice to its other claims, to discontinue all deliveries and services, to withdraw the rights of use (e.g. of software) granted to the Customer and to terminate the contract. software) and to demand the return of any goods delivered (e.g. data carriers, documentation, etc.) and to withhold deliveries ready for shipment until new terms of payment and delivery have been agreed upon or the Rey Company providing the services has received sufficient securities in its own opinion. If such an agreement cannot be reached within 15 calendar days after default or if the Rey Company does not receive sufficient securities in its own opinion, the Rey Company shall set a grace period of at least three calendar days for payment. If this period of grace expires without payment being made, the Rey Company rendering the performance may sue for performance together with damages for delay or, within a reasonable period of time (no immediate declaration necessary), waive the subsequent performance and either claim compensation for the damage resulting from the non-performance or withdraw from the contract (Art. 109 CO). In the event of a withdrawal from the contract, the Rey Company concerned shall be entitled to remuneration for the services then rendered plus a reasonable share of the profits.
The customer may not withhold, reduce or set off payments due to complaints, claims or counterclaims not acknowledged in writing by the Rey company providing the services.
VI. work results and rights of use
All pre-existing rights of use and protection (intellectual property rights and ancillary copyrights as well as expectancies as such) as well as those to work results agreed upon and created in the course of the performance of the contract, including plans, drawings, technical documents, user documentation, software incl. source codes, program description, documentation, concepts, evaluations or development results as well as legally unprotected ideas, processes and methods belong and remain with the performing Rey-Company. Patent rights to inventions created during the performance of the contract belong to the Rey Company providing the services. The customer may only dispose of them or make them accessible to third parties if this has been granted to him in writing in advance.
Inversely, all pre-existing rights of use and property rights to the content supplied by the customer shall remain with the customer. The customer warrants to dispose of the necessary rights of use. The Rey company providing the service shall be fully indemnified by the customer in this respect.
Unless otherwise expressly agreed, the customer shall only be granted the non-exclusive, non-transferable and generally time-limited right to use the software and the associated user documentation for standard software in accordance with the terms of purchase or use of the third-party supplier. The customer is not entitled to grant sublicenses of the software or the user documentation to third parties, to pass them on to third parties, to sell them or to rent them out. In the case of Free/Libre Open Source Software components, the license terms applicable to these components shall apply exclusively. The customer may store software on a storage medium or load it into the working memory to the extent necessary for use. The customer is not entitled to make copies (except for archival purposes, temporary troubleshooting or replacement of defective, necessary storage media) or to update, upgrade or otherwise extend the software. For the period of non-agreed overuse, the Customer undertakes to pay compensation for the overuse. If the customer does not communicate the overuse of his own accord, a contractual penalty in the amount of five times the price of the use claimed shall be due in accordance with the applicable price list. The customer may not disassemble, decompile, decrypt, reverse engineer or otherwise process software, including software produced individually for him. If the customer violates any of these provisions, the Rey company concerned shall be entitled to revoke the right to use the software without notice and to discontinue its other performance. Claims for damages and other legal steps remain reserved.
On full payment of the remuneration owed, the non-transferable, perpetual, non-exclusive and geographically unrestricted rights to individually developed software shall pass to the customer. Without written agreement, there is no claim to the transfer of source codes and development documentation. The Rey Companies are entitled to further develop, modify, use and otherwise commercially exploit software and components, knowledge and processes developed for the Customer.
Documents, drafts, software for testing purposes, plans, concepts, data, source codes, etc. shall be returned to the respective authorized Rey company and/or permanently deleted electronically in the event that no deliveries or services are provided and always upon termination of the contractual relationship. The complete return and/or deletion is to be confirmed in writing. The customer does not acquire any rights to offer documents and may neither make them accessible to third parties nor use them himself.
VII. Information and cooperation obligations of the customer
The Customer shall provide the Rey Company providing the services with all specifications relevant to the performance of the contract in a timely, complete, clear and correct manner and in a generally accepted form. The service-providing Rey company may rely on the information provided by the customer. The Customer shall in due time draw the attention of the Rey Company providing the services to technical requirements as well as to legal, including data protection, official and other regulations at the place of destination, insofar as they are of importance for the development, execution and use of deliveries or services of the Rey Company as well as for the prevention of illness and accidents. The customer is solely responsible for compliance with domestic and foreign export regulations. The customer is further obliged to provide full information and cooperation so that the provision of deliveries and services by the Rey Companies is thereby facilitated as far as possible.
The Customer shall grant the Rey Company providing the service the necessary access to its premises/systems and shall provide the necessary infrastructure for the performance of the service. This concerns in particular the provision of competent employees with decision-making powers, the provision of test workstations, staging and storage rooms as well as training rooms, meeting rooms for workshops, parking spaces, the hardware and software environment (system environment) required for proper operation, power, data, Internet and telecommunications facilities, etc. The customer is obligated to procure all necessary licenses of standard products from third parties for the respective contract period within the scope of the ordered deliveries and services, to comply with these as well as with the license provisions for Free/Libre Open Source Software components. The customer is obligated to enable the Rey company providing the services remote access to those data processing systems on which any contractual software is installed and used. The customer is responsible for the activation of the online access required for the remote access and bears the connection costs
The customer is obliged to prevent unauthorized access to delivered software. The customer shall keep delivered original data carriers in a place secured against unauthorized access. The customer will comply with the notified security and administrative regulations. The administration of user identifications and passwords is the responsibility of the customer. These are to be kept secret by the customer, protected against unauthorized access and not passed on to third parties. In order to avoid damage due to loss of data, the customer is obliged to ensure that his data stock is backed up daily, up-to-date, in machine-readable form and in accordance with the current state of the art, thus guaranteeing that this data can be restored with reasonable effort. In the absence of an explicit agreement to the contrary, the customer shall be solely responsible for data security and compliance with data protection regulations.
To the extent that support services are provided for the customer within the scope of projects, the customer is obligated to regularly check whether the respective project objectives specified in writing are being met. Project management and responsibility lie exclusively with the customer.
So far as software maintenance services are agreed, this shall only be provided for software used by the customer in the current program version. If a program version is used by the customer that is not up to date, a check shall be carried out at the customer's premises and the software shall be updated against separate remuneration, which shall depend on the number of program versions not tracked at the customer's premises.
VIII Reservation of title and use
As far as material/hardware/etc. deliveries are provided, the Rey company providing the service remains the owner until the agreed remuneration has been paid in full. In the meantime, the customer may not sell, rent, pledge or otherwise encumber the delivery. The Customer shall be obliged to cooperate in any measures required to protect the property of the Rey Company providing the service, in particular also the entry in the retention of title register. All rights of use shall be granted subject to full payment of the agreed remuneration.
Only dates confirmed in writing are binding. Deadlines (incl. sanctioned milestones) and subsequent deadlines shall be extended appropriately, automatically, without the need for any special notification and without any claims accruing to the customer:
a) if the customer is in arrears with the work to be performed by him, is in default of acceptance for which a warning has been issued or is in default of performance of his contractual obligations, in particular if and at least as long as he fails to comply with payment terms;
b) if the Rey Company providing the service does not receive information it requires for the provision of the service in due time or if the Customer subsequently changes it or if and as long as the Customer does not comply with its obligations to cooperate;
c) in the event of unforeseen obstacles and their consequences that lie outside the will of the Rey Company providing the service, regardless of whether they arise with the parties or with a third party, at least for their duration. Such circumstances are, for example, force majeure, official orders, pandemics, epidemics, mobilization, war, riots, significant operational disruptions, labor disputes, natural events, fire, theft;
d) in the event of delays in delivery or transportation and the like on the part of a third party vendor, supplier or the carriers.
X. Place of performance
If the parties have not agreed on a special place of performance in writing, the place of performance shall be the registered office of the Rey company providing the services. In particular, there shall be no claim to execution on the customer's premises if services can be performed by telephone or remotely (online direct access). The customer shall take reasonable measures to exclude or minimize on-site performance.
The customer is obliged to hand over, fax or send by e-mail a visified delivery bill to the Rey company providing the service immediately after the material/hardware/etc. deliveries.
If a delivery is delayed or made impossible for reasons beyond the control of the Rey company providing the service, the delivery shall be stored for the account and at the risk of the customer, without the customer being entitled to withdraw from the contract or to claim damages.
XI. Transfer of risk
Use and risk shall pass to the customer upon dispatch of the material/hardware/etc. deliveries from the registered office of the Rey company providing the service, irrespective of any delivery and assembly conditions that may have been agreed. Any transport shall be for the account and at the risk of the customer. Insurance against damages of any kind shall be the responsibility of the customer.
XII. Acceptance / inspection obligations
Unless a special procedure has been agreed upon in writing, the Customer shall inspect the performance under the contract for work and services or the delivery, including any data carriers, user manuals and other documentation provided, by means of appropriate tests immediately upon delivery or receipt, prior to productive use and no later than within ten (10) calendar days after any notification of readiness for acceptance and shall immediately notify the Rey Company providing the service in writing of any defects, stating the description of the defect, its effect and circumstances of occurrence. The Customer shall give the Rey Company providing the service the opportunity to remedy the defects. Insignificant defects shall be disregarded.
If the Customer fails to inspect and/or immediately notify, refuses to sign an acceptance protocol despite a short grace period without factual reason or if the Customer uses deliveries or services without complaint for seven (7) calendar days, they shall be deemed accepted. Defects which would already have been recognizable at the time of acceptance or partial acceptance, but which were not notified immediately, may not be asserted later. Insignificant defects do not entitle the customer to refuse acceptance.
In the case of work, the Rey Company performing the work warrants that the work will substantially conform to the warranted specifications for a period of twelve (12) months when used as intended and provided that the customer has fully complied with its obligations.
The Rey company providing the service guarantees the properties material/hardware/etc. deliveries exclusively within the framework of the warranty granted by the manufacturers or third-party suppliers, which the customer expressly accepts. The warranty period is twelve (12) months depending on the manufacturer, in case of permanent day and night operation usually six (6) months. The warranty period begins with the delivery or service provision. The Rey Gesellschaft does not provide any warranty for rights of use and exploitation as well as properties of Free/Libre Open Source Software components used.
If the Rey Company providing the service provides pure consulting services, it shall not be liable for the correctness and suitability of the consulting services, in particular not for the fact that the purpose pursued with the commissioned consulting can be achieved (no guarantee of success).
Excluded from the warranty are consumables and damage due to wear and tear, poor maintenance, disregard of operating instructions, as a result of changes to the system environment, to source codes or databases, after installation and / or operating errors, damage caused by third-party products including. the warranty does not cover damages caused by defective or unlicensed standard software and free/libre open source software components, by interventions in the service/software, such as modifications, adaptations, connection with other programs and/or use contrary to the terms of the contract, excessive strain, unsuitable operating materials, chemical or electrolytic influences, defective rectification work not carried out by the Rey Company providing the service, force majeure or other reasons for which the Rey Company is not responsible. Furthermore, there is no warranty for the freedom from disturbances of the data transport as well as its availability.
The warranty period shall expire prematurely if the customer or third parties make changes or repairs or if the customer does not immediately take all appropriate measures to mitigate the damage or if the customer does not immediately give the Rey Company providing the service the opportunity to remedy the defect.
XIV. Defect Rights
A defect exists only if the intended use is demonstrably impossible or an important functionality or property is missing. Other, insignificant defects are irrelevant.
The Rey Company providing the service shall remedy defects duly notified within the applicable warranty period within a reasonable period of time. The original warranty period may be extended at most once by the same period. In the event of any contradictions, in particular in the case of material/hardware/etc. deliveries, the provisions of the manufacturers or third-party suppliers shall prevail.
Claims for defects in software shall only exist if the reported defect is reproducible or can be shown by machine-generated output and was reported immediately after discovery. Insofar as this is reasonable for the customer, the Rey company providing the service shall be entitled to provide the customer with a new version of a software (e.g. update, maintenance release/patch) for the purpose of eliminating the defect, which no longer contains the defect complained about or eliminates it, or to develop an alternative solution.
If a defect cannot be remedied despite two attempts, the customer may, after giving written notice and setting a reasonable grace period, remedy the defect itself or have it remedied by a third party. In this case, the customer is entitled to compensation for the costs incurred by the substitute performance, less any savings, but in total to a maximum of ten (10) percent of the value of the defective delivery or service. Further claims arising from the warranty are excluded, in particular the customer may neither demand a reduction, withdraw from the contract (rescission) or demand compensation for lost profit, indirect and direct damages, penalties to third parties, consequential damages, loss of use, capital costs or for the acquisition of substitute services or further consequential economic loss.
In the event of alleged infringements of property rights, the Rey company providing the service shall be entitled to adjust its delivery or service accordingly or to acquire the corresponding rights at any time in order to eliminate such infringements. Other claims of the customer do not exist.
If it turns out that a defect reported by the customer does not actually exist or is not due to the deliveries or services provided by the Rey company providing the service, the customer shall compensate the Rey company for the expenses incurred in connection with the analysis and other processing.
To the extent permitted by law, the liability of the Rey company providing the service for culpably caused damage is limited to a maximum of 50% of the total remuneration of the corresponding contract in the case of one-off services or the remuneration for 12 months in the case of recurring services. Liability for loss of profit, indirect and direct damages, penalties to third parties, consequential damages, loss of use, capital costs or costs for the acquisition of substitute services as well as any other economic consequential damages is expressly excluded. Liability for the recovery of data is excluded, unless the Rey Company has caused its destruction intentionally or through gross negligence.
The liability for employees and auxiliary persons called in is excluded in accordance with Art. 101 para. 2 CO.
The Rey company providing the service shall only be liable under its liability insurances for personal injury and property damage which the client can prove to have suffered due to the fault of the Rey company. Further claims are excluded. If the liability insurances do not cover the incurred personal injury or property damage, the service-providing Rey-Company itself shall not be obliged to any further liability.
XVI Permanent contracts
Unless otherwise agreed, standing contracts shall be extended by one (1) year at a time. Either party may terminate standing contracts in writing with a notice period of one (1) month to the end of a contractual year, however, at the earliest after the expiry of twelve (12) months.
The customer shall, upon termination of a permanent contract, immediately completely delete software for which time-limited rights of use have been granted from the hardware on which it is installed or stored. The customer is hereby expressly advised that he may no longer use such software after the termination of a permanent contract.
The Rey company providing the service has the right to change the prices once a year in the case of permanent contracts. The customer shall be notified of any increase in prices six (6) weeks prior to its effectiveness. With the announcement the customer receives an extraordinary right of termination at the time when the price increase becomes effective. In this case, the customer must give written notice of termination to the Rey company providing the service no later than four (4) weeks after notification of the price increase.
XVII Prohibition of solicitation of personnel
The customer undertakes not to directly or indirectly entice away, hire or otherwise employ any employee of a Rey company during the performance of the services and for one year thereafter. In the event of a breach of this non-solicitation clause, the Customer shall owe the Rey Company concerned a contractual penalty in the amount of CHF 100,000.00. Payment of the contractual penalty shall not release the Customer from compliance with the further contractual obligations.
The parties shall treat all information that is neither obvious nor generally accessible as strictly confidential. Customer acknowledges in particular that source codes constitute sensitive trade secrets. In case of doubt, information shall be treated confidentially and there shall be a mutual obligation to consult. The obligation to maintain secrecy exists from the beginning of the contractual negotiations and continues to apply indefinitely after termination of the contractual relationship. The Rey companies are allowed to advertise with the fact that a cooperation exists or existed with the customer and to quote it as a reference.
XIX Unilateral termination of the contract
If unforeseen events occur which fundamentally change the circumstances relevant to the contract or have a significant effect on the performance of the contract by the performing Rey company, or if the performance of the supplies subsequently proves impossible in whole or in part, the parties shall attempt to agree on a modification of the contract within a period of 30 calendar days. If the parties are unable to reach an agreement, the Rey Company providing the services shall have the right to dissolve the contract or the parts of the contract concerned. If the Rey Company intends to dissolve the contract, it shall notify the Customer thereof without undue delay after realizing the significance of the event, even if an extension of the delivery period was initially agreed. In the event of termination of the contract, the Rey Company providing the services shall be entitled to remuneration for the services then provided. Claims for damages by the customer including claims for loss of profit, indirect and direct damages, penalties to third parties, consequential damages, loss of use, capital costs or costs for the acquisition of substitute services as well as any other consequential economic loss are expressly excluded.
XX. Termination for cause
The parties have the right to terminate for cause. The right to terminate for cause requires that the offending party has previously been warned unsuccessfully in writing by the other party, setting a deadline of at least twenty (20) calendar days for the commencement or resumption of the conduct in conformity with the contract and for the restoration of the condition in conformity with the contract, and with reference to the right to terminate. An important reason exists in particular:
a) if the continuation of the cooperation no longer appears objectively reasonable due to a serious breach of contract;
b) if there is a delay in payment by the customer of more than two (2) months;
c) if Customer is in violation of any purchase or use policies of any Rey Company or Third Party Provider;
d) if changes or actions by the customer significantly affect the performance of services under the contract and the parties cannot find a mutually agreeable solution.
Payments already made at the time of termination shall remain well paid. Termination shall not relieve the parties from ensuring performance of their obligations in accordance with the contract in the ordinary course of business.
XXI. data protection
The parties undertake to comply with the provisions of data protection. The Rey Companies are entitled to have personal data processed by third parties within and outside Switzerland, provided that data security is guaranteed. If data processing takes place in a country with an insufficient level of data protection or if this cannot be ruled out, the third party must provide sufficient contractual guarantees to ensure adequate data protection. The customer agrees that, to this extent, cross-border data transfer and data processing may take place abroad. The customer remains responsible for the information and consent of the data subjects.
In the given case, the parties shall agree without further ado on the necessary separate contracts (e.g. concerning order processing). The parties shall each keep a record of their processing activities.
XXII Miscellaneous provisions
Declarations in text form which are transmitted or recorded by electronic media (fax, e-mail, Internet and the like) shall be deemed to be written declarations of a party. The burden of proof that such declarations have been taken note of by the recipient shall lie with the sender. Such declarations shall be deemed to have been received at the time they are acknowledged by the recipient. Contract amendments and terminations must always be made in writing (electronic media are not sufficient).
If a party waives the right to enforce a contractual claim in an individual case, this cannot be regarded as a general waiver of all contractual claims.
The parties exclude offsetting against counterclaims that have not been acknowledged in writing.
The parties mutually undertake, without any special consideration, to make all declarations in due form which are necessary for the execution of the contracts concluded.
In the event of any inconsistency between an individual contract, these GTC and a quotation, the provisions of the individual contract shall prevail over these GTC and the latter shall prevail over a quotation.
XXIII Severability clause
If individual provisions of these GTC prove to be invalid, ineffective or unenforceable, this shall not affect the validity, effectiveness and enforceability of the remaining parts of the GTC. In this case, the parties undertake to replace the invalid, ineffective or unfulfillable part of the GTC with a valid, effective and fulfillable provision that comes as close as possible to the economic purpose of the provision. In all other respects, the provisions of the Swiss Code of Obligations (SR 220) shall apply.
XXIV Amendment of the GTC
These GTC can be changed at any time. Changes or additions to the GTC will be announced to the customer. These become part of the contract if the customer does not object in writing within 30 calendar days of notification. The currently valid version of the GTC can be found at: https://www.rey-technology. com/en/agb.
XXV. Jurisdiction and Applicable Law
The Rey companies shall endeavor to resolve any differences amicably. The place of jurisdiction for disputes shall be the registered office of the respective Rey company. However, the respective Rey company is also entitled to sue the customer at his place of business. All legal relationships between the parties shall be governed by Swiss law to the exclusion of the Vienna Sales Convention.