The client recognises the General Business Terms and Conditions of Divio AG, which, in their latest version, form the basis for all current and future contracts between the client and Divio AG. Deviations from these General Business Terms and Conditions – inparticular relating to the validity of client purchasing conditions – require explicit written confirmation of their validity from Divio AG.
The prices specified in the offers are estimates based on current knowledge and comparable projects. They are neither fixed rates nor binding cost information in the sense of Art. 373 of the Swiss Code of Obligations (OR). Offers made by Divio AG are non-binding until they are confirmed by Divio AG in a written order confirmation or by both parties in an appropriate contract.
The order is executed in accordance with the information specified in the binding offer or contract (point 2,para. 1). Divio AG is obliged to execute the order with care and to protect the industrial and business confidentiality of the client. Divio AG reserves the right to bring in third parties to fulfil the contract if necessary.
The services of Divio AG will be billed according to the effective costs. This also applies to the budget listed in the offer, which represents a non-binding approximate price.
The offer and order confirmation assume that the order is carried out without any problems. Extraordinary overheads and special services that have not been explicitly offered and agreed, for example training, the expansion of the scope of function, provision of material, etc. are billed at an additional CHF 200.00/hr (excl. 8% VAT). Unless specified otherwise, meetings are billed at CHF 200.00/hr (excl. 8% VAT) per person based on the number of hours. Internal material used is also calculated separately (colour printouts, CDs, data transmission, photos, etc).
Courier costs and expenses for travel made inconnection with the order and discussed with the client should be reimbursed by the client.
Expenditure for additional costs, inparticular special materials for the creation of models, photos, reproduction costs, setting and printing, translations, etc., are to be reimbursed by the client. Unless specified or discussed otherwise, all content should be provided by the client.
The standard service times are workdays 09:00-18:00. Services provided after 18.00 are billed with a 25% surcharge. The surcharge is applied if the client explicitly requires the work to be completed outside of standard service times. Overtime quotas must be explicitly approved by the client. Services on public holidays, Saturdays and Sundays are billed with a 50% surcharge.
Unless agreed otherwise, 60% of the offer price must be paid when the order is placed. Divio AG is entitled to commence with the order only when the advance payment is paid in full. Unless agreed otherwise, invoices are sent each month, but no later than the date of acceptance of the contract. The invoice must be paid within 10 days.
If the contract is dissolved early, the client need only pay for the costs that Divio AG has actually incurred up to the date of receipt of the order cancellation. The work already produced in the context of point 8 may be used by the client. The publication of the work must be compensated at cost. Divio AG has the right to retain the objects of the client until all costs have been paid.
A reduction of the contract fee is only possible in the case of objective breaches of the contract and not for artistic or design-related reasons. In particular, dissatisfaction and aesthetic non-compliance with the service provided by Divio AG do not exempt the client from the payment liability. If there are indications that the services of Divio AG do not fully correspond to the requirements and perceptions of the client, the client must inform Divio AG of this immediately. Until this notification is received, the expenses incurred by Divio AG are considered to be accepted.
All dates and delivery periods specified by Divio AG are only approximate without another explicit written agreement and are therefore considered to be non-binding. Even when binding date agreements have been made, if the delivery is delayed, the obligation to provide compensation only exists in the case of intention and gross negligence by Divio AG. Inevitable or unforeseeable events and, inparticular, delays on the part of the client, release Divio AG from compliance with the agreed dates.
After notification of the creation of the order and the invitation to acceptance by Divio AG, acceptance must be given with in one month. Late acceptance entitles Divio AG to submit an additional invoice. If the client refuses to accept, Divio AG can grant an additional period of 14 days for mutual acceptance. If this additional period is not used, the order is considered to be accepted.
In the case of defects identified during acceptance, the client only has a right to improvement or additional delivery within two months. The notice of defects must be brought within 10 days. After this time, the contract is considered to be approved. The improvement of basic defects requires another acceptance.
The contractor retains the right to send the final invoice if the project delays are not their fault. The contractor also retains this right if the project cannot be placed online for endusers through no fault of their own.
If damages arise from the contractual relationship between the client and Divio AG, for whatever legal reason, Divio AG has a total liability of up to one-fifth of the remunerationfor the final order. The liability for indirect or subsequent damages, such as loss of profits, unrealised savings, interruption to operations, entitlements of thirdparties, as well as for consequential damage arising from defects or damages due to loss of data, is excluded. Divio AG is also exempt from all liability for the published content and consequential damages due to orthographic errors in website texts. The client is responsible for the content of delivered texts.
The work created by Divio AG (concepts, sketches, drafts, programs, etc.) remains the intellectual property of Divio AG. However, the client has the right of unrestricted use of the work in the country of the business address or domicile as long as all costs and/or fees billed by Divio AG have been paid. The use, storage or registration of the work in a country other than that of the business address or domicile of the client is only possible after consultation and with the agreement of Divio AG. Applications programmed by Divio AG remain the property of Divio AG. However, as a licenceholder, the client retains a personal right to use the application/software. The distribution, copying or provision of this application/software to a third party is not permitted.
The client ensures that no property rights of third parties are breached with the text, image, sound and video files provided. The client will protect the rights of any third party at his own expense and risk. If a third party makes such claims to Divio AG, Divio AG will immediately notify the client of this in writing and leave the client to conduct any legal proceedings or adopt measures to resolve the legal dispute.
Divio AG is entitled to cite orders and their results for reference purposes and to include comments and/or links to Divio AG on the work produced.
If individual provisions of these conditions are void, invalid or unenforceable, this does not affect the validity of the remaining contract conditions. The invalid conditions of this contract should be replaced by a rule that most closely reflects the spirit and purpose of this agreement. The present contract should be amended in accordance with its spirit and purpose should any gaps arise.
Swiss law is applicable. The place of jurisdiction is the company location of Divio AG.
Valid as of March 2015