General Terms and Conditions for the Provision of Services
LEANmade AG (“Company“) offers services (e.g. consulting, planning, support, training) in the areas of Data Privacy, IT Security and Legal Compliance. These General Terms and Conditions (“GTC“) apply to and form an integral part of the service offering by the Company to the party receiving its services (“Customer”). Together with the confirmation of the offer by the Customer and/or any other contractual documents, these GTC build the legal basis for the provision of the services by the Company to the Customer (“Agreement”). In case the Company and the Customer have entered into an individual contract, these GTC form an integral part of such contract and apply subsequently, unless the parties have explicitly agreed otherwise in writing.
- Agreement and Scope of Services
The Agreement for the provision of Services is legally binding as soon as the Company has received the corresponding offer confirmation by the Customer. The Company´s offer and the confirmation by the Customer and/or any other contractual documents define the scope of the services (“Services”). The Company is authorized to perform or deliver Services and materials in deviation from the Agreement, provided this leads to an improvement of the overall performance and does not result in a price increase.
- Deliverables / Intellectual Property Rights
The Company shall perform the Services and provide agreed deliverables to the Customer with reasonable care and skills according to industry standards and as set forth in the Agreement.
The Company retains the copyrights and all other relevant intellectual property rights in its recommendations, documents and other work products (including drafts and interim results) provided to the Customer (“Materials”). Upon full payment of the fees, the Company grants the Customer a non-exclusive, non-sublicensable, non-transferable license to use, modify and copy the Materials as part of the deliverables for the Customer’s business purposes. The Customer may use the Materials only in connection with the Agreement. Subject to the prior written consent of the Company, the Customer will not disclose any Materials to any other party; this does not apply to affiliated companies.
- Fees and Terms of Payment
The Company accounts for its Services based on the fees set forth in the Agreement. The fees are net plus value added tax (VAT) and other applicable taxes and do not include expenses (such as travel expenses), which will be charged separately.
Any fee estimates are based on the Company´s assumptions at the time of the fee estimate, i.e. understanding of the complexity and urgency of the matter, expertise and experience of the persons involved and its experience in similar assignments. To become legally binding, such estimates need to be finally agreed between the parties in writing.
Fees and expenses will be charged monthly in arrears. Unless otherwise agreed between the Company and the Customer, payments are due within 30 days from the date of the invoice. Late payment is subject to default interest according to the applicable law. The Company also reserves the right to invoice the Customer for dunning costs and claim compensation for further damages.
In case of non-payment of due fees, the Company is entitled to temporarily suspend performance of its Services. The Customer may not rely on the already rendered Services until payment of the due fees.
The invoiced amount shall not be offset against any claims the Customer may have against the Company.
- Involvement of Third Parties
The Company may, in connection with the Agreement, engage trusted third parties collaborating with the Company to provide the Services or parts thereof. Any engagement of a third party, which may result in additional costs, will be discussed and agreed between the Company and the Customer.
- Obligations of the Customer
The Company renders its Services based on the information provided by the Customer. The Customer shall provide the Company with all information relevant to the Services in a timely manner and shall keep the Company informed of any change in circumstances relevant to the Services. Unless explicitly agreed otherwise in writing, the Company is not obliged to verify the information received from the Customer or to decide whether such information is accurate and complete. Any additional fees and/or expenses caused by a failure of the Customer to provide the Company with correct and complete information shall be compensated by the Customer.
Unless it is proven that a damage was caused by wilful misconduct or gross negligence of the Company, the aggregate liability for a breach of the Company´s obligations under an Agreement shall (i) not exceed the amount defined in the Agreement or, if no fix amount has been defined therein, the amount of the fees the Company has received from the Customer under the Agreement during the last 12 months before the damaging event, and (ii) be limited to direct damages (excluding any loss of profits, consequential damages, indirect damages, punitive damages and/or similar).
The Company shall not be liable for any loss arising out of any failures by the Customer to keep full and up-to-date back-up copies of the computer programs and data the Customer uses in accordance with best computing practice.
The Customer shall immediately notify the Company of any damages incurred by the Customer.
- Compliance and Data Protection
Both parties shall retain responsibility for its compliance with the applicable laws and regulations relevant to their rights and obligations under the Agreement. The processing of personal information collected from the Customer in connection with the conclusion and execution of the Agreement and the provision of the Services follows the data protection declaration of the Company. To the extent the Company acts as a data processor when delivering the Services, the parties shall enter into a Data Processing Agreement.
During the course of the Agreement, each party may be given access to information (in whatever form) that relates to the other party’s past, present and future business activities, internal information, products, services know-how and/or intellectual property (“Confidential Information”). Also the content of the Agreement shall be considered to be Confidential Information.
Each party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) under or in connection with the Agreement shall keep any such Confidential Information confidential and shall not divulge the same to any third party without the prior written consent of the Disclosing Party or save as specifically permitted below in this clause. Confidential Information shall not be used by the Receiving Party for any purpose other than in connection with the purposes of the Agreement. Save as may follow from statutory obligations of confidentiality, the foregoing shall not apply to Confidential Information disclosed by the Disclosing Party that (i) is publicly available; (ii) has been received by the Receiving Party from a third party who is under no obligation of confidentiality with respect thereto; (iii) is known to the Receiving Party prior to disclosure by the Disclosing Party without an obligation of confidentiality; (iv) is independently developed by the Receiving Party; (v) is expressly authorized to be disclosed by the Disclosing Party in writing; or (vi) is required by law to be disclosed by the Receiving Party or in accordance with the requirement of any regulatory or supervisory authority to which the party is subject (in which case the Receiving Party shall use reasonable endeavours to notify the Disclosing Party in advance of such disclosure).
- Assignment and Transfer of the Agreement
Without the prior written consent of the Company, the Customer may not transfer or assign the Agreement or any claims, rights or obligations thereunder.
- Applicable law / Place of Jurisdiction
These GTC and the Agreement shall be construed and interpreted in accordance with and governed by the substantive laws of Switzerland under the exclusion of conflicts of laws rules. Unless mandatory legal provisions apply, the court at the registered office of the Company shall have jurisdiction.
- Force Majeure
If the timely performance by the Company is made more difficult or impossible due to force majeure (in particular natural disasters, war and/or other military conflicts, mobilisation, terrorist attacks and labour disputes), the Company shall be released from its duty to perform its obligations concerned for the duration of the force majeure event and a reasonable initial period after its end as well as from any liability in damages or any other contractual remedy for a breach of the Agreement during the same period. If the force majeure event lasts longer than 30 days, the Company may withdraw from the Agreement.
Stand: Oktober 2019
LEANmade AG, General-Wille-Strasse 201, 8706 Meilen, Switzerland
Registered under SHAB UID CHE-327.506.618T