Terms and Conditions

a&f systems ag (hereinafter referred to as a&f) is an IT company specialising in publication and data management systems. In particular, a&f provides the following services to the Customer:

a) provision of standard software
b) provision of special developments for standard software
c) provision of hardware
d) services, such as hardware installation, standard software integration and configuration, hardware and standard software support and maintenance, as well as training.

These Terms and Conditions (T&Cs) apply to all business relationships between a&f and the Customer, and constitute an integral part of the Contract concluded between a&f and the Customer. Deviations from these T&Cs shall only be valid if contained in a written agreement signed by both Parties which refers to these T&Cs.

The Customer’s T&Cs are explicitly excluded.

Offers made by a&f shall be valid for the period specified therein.

The Contract is concluded with the Customer’s written or verbal declaration of acceptance. The Contract is equally concluded when the Customer accepts the provision of services by a&f.

a&f shall submit an order confirmation to the Customer. Its content shall be deemed binding for both Parties if no objection is made within 5 business days. a&f and the Customer shall draft a written agreement for larger order volumes.

The object of the Contract is regulated in details in the Individual Agreement (order confirmation or written agreement).
Offers constitute integral parts of the Contract between the Customer and a&f.

The Contract between a&f and the Customer comprises the following documents:
    • Individual agreement
    • Offer
    • Terms and Conditions

In the event of inconsistencies between the documents listed above, the above order of precedence shall apply. a&f is entitled to engage third parties (e.g. suppliers, subcontractors, etc.) for the performance.

Changes to the object of the Contract must be agreed in writing.

The Contract shall enter into force when signed by both Parties, unless a different date of inception is agreed in the Individual Agreement.

The Contract shall be concluded for either an indefinite term or for the period specified in the Individual Agreement. Contracts over one-off services shall end with their fulfilment.

Unless otherwise regulated in the Individual Agreement, either Party may terminate a Contract concluded for an indefinite term in writing, subject to a notice period of 3 months with effective from the end of the calendar half-year.

The Parties reserve the right to termination for good cause. In particular, good cause shall be deemed established if the respective other Party:

• continuously or repeatedly breaches material contractual terms, and fails to remedy the objected breach within a grace period of 30 days after the receipt of the corresponding notification;
• is insolvent, or insolvency or debt-rescheduling proceedings have been instituted, applied for, or rejected for insufficiency of assets.

The provisions relating to confidentiality, data protection and copyrights shall remain effective after the contractual relationship is terminated.

The Customer must create the technical and organisational conditions for the proper provision of the agreed services by a&f in due time and without prompt. In particular, the Customer has a duty to cooperate in the designation of contact persons, the issuance of work instructions, the provision of information, the participation in any agreed project meetings, the performance of acceptance tests, and the provision of access to its IT systems, data and workspaces.

Moreover, the Customer must inform a&f without prompt about all circumstances which may compromise or threaten the provision of services by a&f.

7.1. Delivery times

The agreed delivery times are generally non-binding. The delivery times are automatically extended if the Customer fails to meet its duty to cooperate in due time, or other circumstances materialise that a&f is not answerable for.

7.2 Handover and installation

The hardware is handed over against signature on the bill of delivery at the place of performance. Unless agreed otherwise, the place of performance shall be the place the hardware is installed.
At the Customer’s request and against separate compensation, a&f will handle the hardware installation.

7.3 Transfer of benefit and risk

The benefit and risk shall be transferred to the Customer with the handover or installation of the hardware.

7.4 Retention of title

a&f shall retain ownership of the entire delivery until it has received the agreed payment in full. The Customer must cooperate in measures necessary to protect the property of a&f, and comply with all formalities required for the establishment and maintenance of the retention of title at its own expense.

The Customer shall maintain and adequately insure the delivered items at its own expense throughout the period for which the title is retained. Furthermore, it shall take all measures to prevent a&f’s title being compromised or invalidated.dfgdfgdfgdfg

8.1 Rights of use

a&f only acts as intermediary for the licence agreement relating to standard software; the agreement is formed between the Customer and the software manufacturer. Thus, the Customer’s right to use the standard software is governed by the manufacturer’s licence terms.

Unless agreed otherwise, the Customer shall receive a non-exclusive, non-transferable right to use the standard software in accordance with its intended use in its company for its own purposes and for the number of users specified in the Individual Agreement without time or geographic limitation.

8.2 Installation and adjustment

If agreed separately, a&f will install the standard software and adjust it to the Customer’s requirements.

8.3 Retention of title

a&f shall retain ownership of the entire delivery until it has received the agreed payment in full. The Customer must cooperate in measures necessary to protect the property of a&f, and comply with all formalities required for the establishment and maintenance of the retention of title at its own expense.

The Customer shall maintain and adequately insure the delivered items at its own expense throughout the period for which the title is retained. Furthermore, it shall take all measures to prevent a&f’s title being compromised or invalidated.

9.1 a&f office hours

The a&f office hours are Monday to Friday 9.00 am – 12 noon and 1.30 pm – 5.00 pm.
This shall exclude the following public holidays: New Year’s (01 and 02 January), Good Friday, Easter Monday, Ascension Day, Whit Monday, Swiss National Holiday (01 August), Christmas Day (25 December) and Boxing Day (26 December).

9.2 Support

a&f shall accept the Customer’s support requests during office hours. Each call from the Customer constitutes an order, and generally incurs a charge.

Unless otherwise agreed in the Individual Agreement, support shall comprise the acceptance of error messages, clarification of the cause of reported errors, short telephone consultations for user queries.

9.3 Hardware and standard software maintenance

Regular hardware and standard software maintenance, as well as 24/7 emergency support are based on a separate Individual Agreement.

Unless otherwise agreed in the Individual Agreement, maintenance shall include maintaining the functionality of the hardware and/or software installed in the Customer’s system. The development of new functions and the customisation of software in accordance with the Customer’s requirements are not object of the maintenance service, and require a separate service agreement and separate compensation.

Hardware maintenance shall comprise the repair or replacement of defective parts.

Unless agreed otherwise, software maintenance includes the remedy of defects or the submission of a practical workaround, the delivery of new releases of the current standard software version as required, as well as the delivery of new versions as agreed with the Customer, provided that the respective manufacturer supplies these.

Any software developed by a&f specifically for the Customer requires separate regulations.

9.4 Rights to work products

All rights – in particular, copyrights to the work products created as part of the performance of the Contract (e.g. concepts, graphics, software and training documents, etc.) – shall remain with a&f or, if not established by a&f, be transferred to the same.

9.5 Training

a&f offers the Customer training courses on its own premises in Sursee, and may also hold such courses on the Customer’s premises. All training details are regulated in the Individual Agreement.

9.6 Restraint on employment

During the term of contract and within one year after the end of contract, the employment or any form of engagement of the a&f staff entrusted with rendering the services for the Customer requires the prior written approval by a&f.

Any breach of this provision shall entitle a&f to assert a contractual penalty of CHF 10,000.00. a&f expressly reserves the right to assert compensation claims. The payment of the contractual penalty shall not release the Customer from its duty to comply with the contractual agreements under any circumstances. a&f expressly reserves the right to judicial enforcement of the contractual agreements.

In principle, deadlines can be extended. They are only binding if this expressly agreed and specified in the Individual Agreement.

Deadlines agreed as binding can only be postponed with the consent of both Parties. Such consent may only be refused in justified cases.

If one Party becomes aware that an agreed deadline cannot be met, it shall notify the other Party as soon as possible.

If a&f is unable to meet a binding deadline, the Customer must warn a&f and grant it an adequate grace period. If a&f also fails to render the agreed service within the grace period, it shall be in default.

The remuneration due by the Customer shall be based on the provisions of the Individual Agreement. Prices shall be stated net in Swiss francs, excluding any discount, VAT, duties, packaging and transport costs. These incidental costs and any expenditures shall be for the expense of the Customer. Unless agreed otherwise, accessories shall not be included in the price. a&f shall bill the material required to render support services in accordance with the currently valid price list.

Unless agreed otherwise, services shall be billed by time at the hourly rates specified in the a&f Price Schedule valid at the time the Contract was concluded. The Final Terms shall be provided to the Customer with the offer.

a&f shall be entitled to demand advance payment (from new customers).

Invoices are payable net without any deduction within 30 days. Within the payment term, the Customer may raise objections against the invoice in writing, stating reasons. Hereafter, the invoice shall be deemed accepted without reservation. If no payment has been received by the expiry of this term, the Customer shall be in default without further payment reminder. a&f shall be entitled to charge default interest at a rate of 6% from the due date.

If the Customer is in default of payment, and a final payment terms notified in writing has expired fruitlessly, a&f shall be entitled to cease all services to the Customer without delay until all of a&f’s receivables have been settled. a&f expressly reserves the right to assert further compensation claims, as well as the right to extraordinary termination of contract pursuant to Section 5 of this Contract.

a&f shall be entitled to adjust the agreed prices for recurrent services at the beginning of each calendar year. 

12.1 Hardware

As a reseller of hardware, a&f passes the hardware manufacturer’s warranty and guarantee terms on to the Customer. Further warranty and guarantee claims of the Customer are explicitly excluded.
If a&f handles the coordination of defect remedy, a&f shall be entitled to bill the services by time.

12.2 Standard software

The Customer concludes the licence agreement directly with the standard software supplier. Thus, the Customer is entitled to assert guarantee claims due to defects of the standard software directly against the supplier in accordance with the respective license agreement.

If a&f handles the coordination of defect remedy, a&f shall be entitled to bill the services by time.

a&f warrants that it has all rights to render the agreed services in accordance with the Contract. In particular, a&f shall be entitled to distribute the standard software and adjust it to the Customer’s requirements.

12.3 Services

a&f guarantees that it will use duly trained specialist staff to render the services due in accordance with the Individual Agreement in accordance with the standard of care usually applied in your business.

a&f warrants that its services feature the contractually agreed characteristics. Unless the Individual Agreement contains a deviating provision, the warranty period shall be 1 year, commencing with acceptance.

Insofar as permissible in law, all further warranty claims are excluded. In particular, a&f cannot guarantee that an issue reported by the Customer will be remedied.

During the warranty period, the Customer will notify a&f of any identified defects without delay and in writing. In the first instance, the Customer only has the option of demanding rectification within an adequate period to be agreed with a&f. The Customer must grant a&f the opportunity to rectify twice. If the defect is still not rectified after the second attempt, the Customer may demand an adequate reduction in price. Conversion is expressly excluded.

a&f shall only be liable for direct damage incurred by the Customer as part of the performance of the Contract due to gross negligence or wilful action up to an amount of CHF 100,000.00 (one hundred thousand Swiss francs). Insofar as legally permissible, liability for slight negligence is excluded. Insofar as legally permissible, liability for indirect or consequential damage is excluded. a&f shall be liable for fault of a subcontractor as if it were their own.

In the event of loss or damage to data, a&f shall only be liable if a&f is answerable for the loss or damage and the Customer has performed regular data backups to ensure that this data can be reconstructed from readable data material held available in machine-readable form at a reasonable cost, and this liability shall be limited to the reimbursement of the restoration expense.

In particular, the Supplier shall not be liable for damages,

• which were caused by virus attack,
• that have been created as a result of a malicious code and/or hacker attack,
• which were caused by the customer or third parties,
• which have arisen from the non-fulfilment of contractual obligations by the customer (in particular from the obligation to perform duties of cooperation without error and in good time),
• which have occurred as a result of a software error, an operating system error or a faulty service pack from the respective manufacturer,
• which were caused as elementary damages by forces of nature or fire,
• which have arisen due to interruptions in operation as a result of the repair of faults, maintenance, conversion of the infrastructure, introduction of new or other technologies.

Both Parties shall ensure data protection and data security within their respective sphere of influence in accordance with the legal requirements.

The Customer expressly acknowledges that it is solely responsible for the creation of secure and complete backup copies of its data. The Customer shall backup this data in cycles suitable for the application, and ensure that it can be called up from devices under the control of the Customer at any time, such that this data can be restored without delay in the event of data loss or data damage.

In particular, the Customer must backup its data before a&f carries out works on the Customer’s IT systems, and will confirm this in writing to a&f in due time in advance.

a&f shall be entitled to refuse and/or postpone performance if such confirmation has not been received. If a&f consequently incurs additional costs, these may be invoices separately. a&f expressly reserves the right to further compensation claims.

The Parties covenant to treat all information not in the public domain relating to the respective other Party’s business sphere which they receive access to during the performance of this Contract as strictly confidential, and to refrain from making it accessible to third parties in full or in part or publishing it. The Parties shall also bind their employees and subcontractors to this obligation.

15.1 Partial invalidity

If parts of these T&Cs are void or become legally ineffective, the validity of the remaining elements of the T&Cs shall remain unaffected.

15.2 Form requirements 

Provisions that deviate from these T&Cs require the written form.

15.3 No offsetting 

Offsetting of Customer claims against a&f receivables is excluded.

15.4 Re-export 

The re-export of any hardware or software, technical documentation etc. supplied by a&f is expressly prohibited.

15.5 Conflict management 

In the event of conflict between a&f and the Customer, the Parties undertake to hold a crisis meeting without delay, discuss the next steps and employ crisis management.

15.6 Modification of the T&Cs

a&f reserves the right to modify these T&Cs at any time. The changes shall be announces to the Customer in writing or by other suitable means, e.g. publication on the website, and shall be deemed accepted if no objection is raised within a period of one month.

15.7 Applicable law and place of jurisdiction

The legal relationship is exclusive governed by Swiss law under the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (Vienna Convention).

The exclusive place of jurisdiction shall be Schenkon.