GENERAL TERMS AND CONDITIONS OF Das3D Visualization – by Thomas Parisi
For reasons of readability, the masculine form has been used in the text; nevertheless, the information refers to all.
Das3D Visualization – by Thomas Parisi (hereinafter Das3D) offers IT services in the areas of hardware, software, servers, training, installation, support, sales and 3d graphics via www.das3d.ch and via www.rhinoceroshop.ch. It provides the customer with everything from within one house and acts as a general contractor in its field. The Das3D team consists of competent and certified professionals.
These general terms and conditions (GTCs) regulate the provision of all services to the customer and thus apply to the areas mentioned under point 1 as well as to the other services that Das3D provides directly and indirectly to the customer. They are an integral part of the respective contracts and orders between the customer and Das3D.
These GTCs take precedence over all older provisions and contracts. Only provisions from individual contracts or order confirmations that specify the provisions of these GTCs shall take precedence over these GTCs.
By placing an order, the customer accepts the terms and conditions of Das3D. The customer’s general terms and conditions are hereby expressly excluded, even if the customer’s GTCs are indicated as having priority when placing the order.
The GTCs apply to all future relations between the customer and Das3D without the need for explicit confirmation each time.
Das3D fulfills its obligations by providing the agreed upon services at the conclusion of the contract professionally and with due diligence, taking into account the urgency, effort, cost and quality of the solution. The service provision can be done by telephone, e-mail, remote maintenance or on-site at the customer. If necessary, Das3D has the explicit right to involve third parties (e.g. auxiliary persons) or to assign subcontractors with the performance of its contractual duties. Das3D plans independently the time and the necessary resources for the service provision. In doing so, it takes into account the needs and priorities of the customer.
The employees of Das3D always act on behalf of and in the name of the customer, towards employees of the customer and towards third parties (e.g. customers, partners, suppliers, …) when providing services.
The service to be provided by Das3D is described in the offer and/or in the order confirmation. Depending on the necessity and for the completion of the order, it is possible to deviate from this, for example in the case of unforeseen events or emergencies. These additional expenses will be charged to the customer according to time and effort.
In case of support requests by phone or via ticket, the responsible technician of Das3D undertakes the adequate and appropriate measures for troubleshooting based on his analysis and the error description of the customer.
The services of Das3D are in no way contracts for work and there is no guarantee of success. The services that have been expressly agreed upon as such in writing beforehand between the customer and Das3D are excluded.
The customer may withdraw the request for a service for an individual case at any time without violating the contract.
4. Conclusion of contract
A contract is concluded by signing the offer or by approving the offer by e-mail. In case of support requests, the contract is concluded by the customer’s request by phone, email or online store. The offer of Das3D can also be accepted by implied commerce, in that the customer makes use of or uses the service of Das3D, or obtains or uses products (incl. licenses) of Das3D.
5. Duties of the customer
The customer ensures that the contact persons for Das3D are authorized to sign or have the necessary competences to place orders with Das3D.
The customer makes all arrangements necessary for Das3D to provide the service, such as access to his premises. If necessary or upon request, he provides appropriate information or documentation, and in the case of support cases, he gives as accurate a description of the problem as possible. He gives correct information about the runnability of his system. If there are delays or additional expenses of Das3D because the customer has not fulfilled these duties, he will be charged for these expenses.
The customer is entirely responsible for the safekeeping of his access data and passwords. Furthermore, he assures that he has acquired all licenses properly.
At the conclusion of the contract, the customer has the necessary means to pay the expenses of Das3D. The customer pays Das3D for its services according to the agreed upon hourly rates.
The delivered goods remain the property of Das3D or the corresponding software house until full payment by the customer. Until that time, the customer may not dispose of the products, in particular neither sell nor rent or pledge them.
Upon delivery, the customer shall inspect the goods for completeness and defects and immediately report any deviation from the order. Without feedback from the customer within 10 calendar days, the delivered goods are considered accepted. An exchange of products is generally excluded. Services of Das3D are considered as accepted after the handover to or training of the customer has taken place and the customer has not explicitly claimed any defects.
The deadlines indicated by Das3D are indicative and are not binding without express assurance by Das3D. Without a corresponding contractual agreement, Das3D will not pay interest on arrears under any circumstances; such an agreement must always be made in writing.
If nothing else is explicitly mentioned, Das3D offers are usually valid for 10 calendar days.
The time spent on services is estimated and may deviate from this guideline, especially in the case of unforeseen events. The hours actually worked are always invoiced. The effort is charged in 30 minutes intervals. If the Das3D employee has to provide the service at the customer’s site or at another location determined by the customer, travel costs and possibly other expenses such as accommodation costs will be incurred.
The prices at the conclusion of the contract are valid and if no special prices have been agreed upon in writing, the standard hourly rates of Das3D are applied. For third party products such as hardware, software or licenses, prices are subject to change between the quote and the order confirmation. Prices quoted are daily prices from our distributors and may vary due to increased demand or currency fluctuations.
If nothing else is mentioned on the offer or on the invoice, all prices are in Swiss francs (CHF) and exclusive of any applicable value added tax (VAT) or any other levies.
Das3D reserves the right to change its prices at any time.
8. Delivery conditions
Unless otherwise agreed upon in writing, the goods are delivered ex works (EXW). The shipping costs and other possible costs shall thus be borne by the customer.
Software licenses are obtained according to the guidelines and purchase authorization regulations of the respective manufacturer. They are obtained by Das3D from the manufacturer for the customer and thus cannot be returned.
9. Payment conditions
The services are invoiced monthly; the customer receives a corresponding work report for each service rendered.
The customer is obliged to pay the invoiced amount within 10 days from the invoice date. If there are any ambiguities or discrepancies with the invoice, these must be communicated by the customer in writing within 5 business days. After this period, the invoice will be considered accepted.
Software licenses are invoiced by prepayment. The corresponding licenses will be handed over to the customer only after the invoice amount has been settled. Exceptions are only possible under special agreement and with the written consent of Das3D.
If the invoice is not paid within the payment deadline, the customer will be sent a reminder. If the customer does not pay the invoice within the set reminder period, he automatically falls into arrears and owes interest on arrears in the amount of 5% per annum of the amount owed from this point on. In case of the customer’s default, Das3D reserves the right to refuse or take back the provision of the service, the delivery of the goods or the granting of the license. After the expiration of the set reminder period, Das3D may pursue the customer and charge the customer with the costs incurred, such as collection or attorney fees.
A set-off of the invoiced amount with a possible claim of the customer against Das3D is excluded.
Das3D reserves the right to require payment in advance or to change the payment deadline at any time without giving reasons.
Invoicing shall take place electronically to an e-mail address defined by the customer. Invoicing on paper by mail is possible at the express request of the customer. In that case, an additional amount of CHF 3.- will be charged per invoice.
10. Packing and transport
The goods are packed by the manufacturer in a manner suitable for transport and are usually shipped directly to the customer. Upon delivery, the customer checks the condition of the packaging and immediately reports any damage to the transport company as well as to Das3D.
The packaging material will be disposed of by the customer even if the goods were brought by an employee of Das3D. If the customer wishes a disposal by Das3D, he accepts the resulting costs.
11. Warranty services
A warranty for the services provided by Das3D applies exclusively to the contractually warranted characteristics, which have been assured as such in writing by Das3D. The limitation period for these services is 6 months from acceptance.
Das3D provides its services professionally and carefully. However, it cannot guarantee an uninterrupted and trouble-free operation of the services or works delivered by it. Finally, Das3D does not owe any success. In particular, Das3D cannot guarantee that the use of security products such as antivirus software or firewalls will prevent any external attacks or other damage to the customer’s infrastructure.
When selling third party products or licenses, the manufacturer warranty conditions apply. Thus, Das3D assigns all warranty claims against third party products to the customer. The claim for reimbursement of costs for third-party repairs is excluded. During the time of repair, the customer has no right to a replacement product. If a defective third party product leads to additional expenses on the part of Das3D (e.g. re-installation of software), the customer bears these costs if he cannot pass them on to the manufacturer of the product. The warranty does not apply if the customer makes changes to the product and cannot prove that the defect did not result from these changes.
12. Contract duration and contract amendment
12.1. Projects and one-off services
Without a time limit, contracts are valid for an indefinite period of time until the performance owed in the contract is completed. If Das3D comes to the conclusion that the effort is disproportionate to complete the order, it can decide to cancel. Das3D can also withdraw from the contract if despite being reminded, the customer does not fulfill his obligations towards Das3D.
The customer may withdraw from the contract at any time, but withdrawal at inopportune times is not allowed. In case of early withdrawal from the contract with a notice of 10 calendar days or less and if the volume of work at the time of termination exceeds 8 hours, 50% of the remaining scheduled time will be charged. If a minimum period of time has been agreed upon, the contract can be terminated only after this period has expired.
The expenditures already made by Das3D will be charged in full in all cases, regardless of the status of the order or the result achieved.
12.2 Licenses and recurring services
Licenses and recurring services, such as maintenance contracts or hardware service contracts, are valid for a minimum period of 12 months from the date of commissioning or installation. They can be terminated with a notice period of 3 months to the end of the month. Without timely termination, licenses and recurring services will be automatically extended for another 12 months without prior notice from Das3D. Cancellation after use of the licenses is no longer possible and the agreed upon fee is owed for the contractual duration.
Early withdrawals from the contract and changes to the contract must be in writing and must be confirmed in writing by the other party.
A right to extraordinary termination of the contract for important reasons applies at any time, for example if one of the parties has violated the contractual agreements and the other party has suffered demonstrable financial damage as a result.
The liability for direct damages is limited to half the amount of the service, product or license purchased by the customer, provided that the damages and fault on the part of Das3D can be proven. If direct damages are caused by gross negligence or intent, no limitation of liability applies. In any case, the customer is obliged to report possible damages to Das3D immediately. Any liability for auxiliary persons is fully excluded.
Das3D is not liable in any case for damages incurred by the customer or third parties due to unresolved cases of user support, except in the case of gross negligence.
If the fulfillment of the contract is postponed by the customer, a liability of Das3D for possible damages is excluded.
Liability for any indirect damage and consequential damage is excluded in full. Liability for direct damage caused by force majeure is also excluded (see Article 21).
13.1 Disclaimer in the event of cyber attacks
Das3D excludes any liability and claims for damages caused by cyber-attacks. The security offerings and services of Das3D consist of third party products and are best possible answers for risk mitigation in case of external attacks but are no guarantee for a full protection of the customer’s infrastructure.
The customer is responsible for the protection of his IT infrastructure. Das3D offers the customer a customized solution to protect his infrastructure against cyber attacks in the best possible way. However, it implements the solution according to the customer’s order, even if the customer decides to omit parts of the offered solution.
In the event of damage to the customer’s IT infrastructure (or parts thereof) due to a cyber attack, Das3D will do its best to repair the damage and restore the systems. However, Das3D cannot guarantee a complete recovery of the damaged infrastructure, especially a full data recovery.
Cyber attacks include, but are not limited to, spamming, hacking attacks, phishing, virus attacks, malware, network blocking and other events.
14. Product liability
In the event of personal injury or damage to property as a result of a defective product, the manufacturer of the product is liable.
15. Intellectual property rights
All rights to the products, services and any trademarks are the property of Das3D or of the corresponding manufacturer. The customer is exclusively entitled to use the products and services. Neither these GTCs nor individual contracts include the transfer of intellectual property rights, unless it is explicitly mentioned in writing.
The further use, the publication and the making accessible of information, pictures, texts or anything else, which the customer receives in the context of his cooperation with Das3D, are prohibited, unless this is explicitly agreed upon in writing.
16. Data protection and secrecy
Das3D has the right to use and process customer data within the framework of the fulfillment of the contract. Das3D takes the necessary measures to properly secure the customer data against unauthorized access in accordance with legal regulations. If necessary for the fulfillment of the contract, Das3D may pass on customer data to third parties such as auxiliary persons or equipment manufacturers.
The customer fully agrees to the storage and utilization of his data by Das3D. Upon order of courts or authorities Das3D may be obliged to disclose information from the customer.
Without the explicit and written prohibition of the customer, Das3D may use the customer data for its own marketing purposes and submission of information and offers.
Both parties undertake to treat all information submitted or acquired in connection with the performance of the contract as confidential. This obligation shall remain in force for 5 years after the termination of the contract. In addition, both parties are responsible for ensuring that their auxiliary persons or involved third parties also treat the information confidentially. This obligation shall not apply if the other party has demonstrably received the information lawfully from third parties or if the information was already generally known prior to the conclusion of the contract.
Furthermore, the secrecy of all data in the customer’s system is maintained in accordance with StGB Art. 321 (breach of professional secrecy).
Furthermore, the data protection provisions on the homepage of Das3D (www.das3d.ch) apply.
Both parties undertake not to provide services in the business field of the other party for its customers on their own account. Furthermore, both parties undertake not to offer any services in the business field of the other party for its customers, even if it has been requested to do so by these customers.
The customer is prohibited to entice away employees of Das3D or to employ or hire them in any form. In case of violation of this provision, the customer owes Das3D per case a contractual penalty in the amount of one gross annual salary including salary components (e.g. company car). In addition, Das3D can claim further costs consecutive to the enticement such as recruitment or training costs. This provision remains valid for 6 months after the employee has left Das3D.
19. Defense clause (battle of the forms)
By concluding the contract between Das3D and the customer, the latter confirms to accept these GTCs and to waive his own GTCs.
20. Further provisions
These GTCs are valid for an indefinite period of time until a new version comes into force. Changes are possible at any time and apply to all concluded contracts after the new version of the GTCs come into force. For the customer, the version of the GTCs that is in force at the time of the conclusion of the contract applies in principle, unless the customer has agreed to a newer version of the GTCs.
21. Force majeure
If the fulfillment of the contract is delayed, limited or even impossible due to force majeure, Das3D is released from the fulfillment of its obligations for the duration of the force majeure and a reasonable start-up period after its end. If the force majeure lasts longer than 30 calendar days, Das3D may withdraw from the contract.
Force majeure includes, for example, natural disasters, earthquakes, storms, thunderstorms, wars, riots, civil wars, terrorism, sabotage, strikes, nuclear accidents or unforeseeable restrictions imposed by the authorities, such as in the case of a pandemic.
22. Place of performance
Unless otherwise agreed upon, Das3d’s service will be provided at the customer’s location or at its own premises.
23 Applicable law and place of jurisdiction
These GTCs and all contracts between the customer and Das3D are subject to Swiss law. As far as no mandatory legal provisions prevail, the court at the domicile of Das3D is responsible. Das3D can reach the customer at his domicile or place of residence as required.
The United Nations Convention on Contracts for the International Sale of Goods (SR 0.221.221.1) is explicitly excluded.
24. Severability clause
If a provision of the contract between the customer and Das3D is invalid, ineffective or unenforceable, the other provisions remain effectively unaffected. In such a case, both parties shall replace the incomplete provision by mutual agreement with another legally valid provision that comes close to the economic purpose of the invalid provision.
Date: 01 January 2022
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