1. Validity
These General Terms and Conditions (“GTCs”) are valid for business transactions between Webcall and its customers. Deviating rules and in particular customer conditions which are in conflict with these GTCs are only valid if Webcall has confirmed its agreement in writing. These GTCs are valid for agreements between the customer and Webcall for the purchase of telecommunications and electronic equipment, software licences, hardware and services.
Within the scope of an existing business relationship, these GTCs are valid, even when this is not specifically pointed out within an individual order.
Should any part of these GTCs become void or legally invalid, this shall have no effect on the validity of the other provisions. The void or unenforceable provisions shall be formulated or rewritten so that the intended purpose is achieved as far as possible.
2. Orders / Conclusion of a contract and its content
To be valid, every order requires a written order confirmation from Webcall to the extent there is no existing written contract signed by the parties or a delivery from stock is carried out immediately by Webcall without an order confirmation. Verbal agreements are also valid only to the extent that Webcall has confirmed them in writing.
Webcall is entitled to make partial deliveries and perform partial services. In the case of delivery agreements, every partial delivery and partial service can be invoiced as an independent service.
3. Prices
The prices quoted by Webcall are ex works, net in Swiss francs, exclusive of VAT. Freight costs, packaging material and expenses as well as freight insurance are borne by the customer.
Webcall expressly reserves the right to adjust contractually agreed prices. Customers are informed promptly of price changes, which are possible at any time and which may occur on any date. Should the customer be seriously disadvantaged by price changes, that party is entitled to cancel the contract as of the date when the new prices enter into force.
Any fees for the use of software are either one-time payments or are paid periodically, which is established in the agreement.
4. Payment conditions
To the extent that nothing else has been agreed, payments, even if partial services are invoiced, are due without any deductions at the latest 30 days after the billing date. Payment periods stated on the invoice take precedence over the aforementioned provisions. Within the payment period, the customer can raise reasoned objections to the invoice in writing. Thereafter, the invoice is deemed as having been accepted. If the customer does not meet the payment commitments within the payment period, the customer is in arrears when this period expires, even without further reminders, and must pay interest on late payments of 6%. Webcall is entitled to invoice at least CHF 30 per reminder. The right to impose additional fees is reserved. If the payment has not been made following the second reminder, Webcall is entitled to cease providing all services to the customer without any further notice. The customer must grant Webcall access to the equipment and devices he is using for deinstallation.
Webcall reserves the right to deliver any goods yet to be delivered with terms of cash on delivery at the customer’s expense. In every case, Webcall reserves the right to demand a bank guarantee.
5. Intellectual property rights / Reservation of property rights
Webcall grants the customer a non-transferrable and non-exclusive right to the use of the services and products put at its disposal by Webcall for the duration of the contractual relationship. All corresponding intellectual property rights always remain the property of Webcall or the licensor.
Until the complete payment of the purchase price is made, the delivered goods remain the property of Webcall. If delivered goods belonging to Webcall are integrated into another system, the customer grants Webcall joint ownership for the complete system to the extent of the integrated goods.
The customer agrees that for all transferred goods, a corresponding retention of title will be entered into the proprietary rights register at the customer’s domicile, and the customer hereby also expressly authorises Webcall to enter the entry in its own name. The customer is obliged to cooperate with all measures which are required to protect the property.
6. Use of software
When purchasing software material, the customer has the right to use this software on the specified hardware. The copyrights to the software remain in all cases with Webcall or the supplier of the licence. The right to use the software does not include any claim for the delivery of new software releases.
7. Support services
Support services are not included in the price of goods. If support services are required from the partner or its customers, these must be individually agreed with Webcall.
8. Delivery deadlines and delay in acceptance
The agreed delivery deadlines will be met subject to delays which are not caused by Webcall such as supply delays on the part of Webcall’s suppliers, delays in necessary work by the customer, etc. In no event will any delivery delays give the customer any claims to damages or withdrawal from the contract.
Delivery deadlines begin to run on that day on which the order becomes legally valid (see Section 2 above).
If the customer fails to accept delivery, Webcall is entitled to choose either to store the goods at the customer’s risk and expense, and in this way free itself of all its liabilities, or to rescind the contract immediately. Before it exercises the right to make the selection, Webcall shall set a short extension for the acceptance of goods.
9. Shipment
The shipment of ordered goods essentially takes place using Webcall’s best judgement either by rail, post or a private organisation but always at the recipient’s expense and risk. Complaints about damage or losses of goods being transported are, upon receipt of the goods, to be directed directly to the corresponding transport agency by the customer itself.
10. Place of performance / Transfer of benefits and risks of the goods
(telecommunications and electronic equipment as well as hardware)
The place of performance is always Webcall’s domicile.
Benefits and risks are transferred to the customer on conclusion of the contract or at the latest when the goods are handed over to the customer or to a transport agency.
If the shipment or the handover is delayed or made impossible for any reasons which are not caused by Webcall, the shipment will be stored at the customer’s cost and risk subject to Section 8, Paragraph 3 (customer failure to accept delivery).
11. Acceptance and guarantee of services
For services, Webcall guarantees the customer that the individual results at the time of acceptance will correspond to the fulfilment criteria set out in the contract. If a defect arises and notification of such takes place within 30 days of acceptance, instead of guarantee claims under the Swiss Code of Obligations, the customer has only the right to the rectification of faults. If Webcall is unsuccessful in proving the fulfilment of the specified criteria even after a suitable extension has passed, the customer can demand the replacement of direct damage by demonstrating Webcall’s fault according to Section 13 (Liability). The guarantee services do not include either commissioning or increased expense as a result of external influences, improper operation or other reasons caused by the customer.
12. Acceptance and guarantee of goods
There are no guarantee claims on software.
On goods (telecommunications and electronic equipment as well as hardware), Webcall allows a guarantee claim only to the same extent as Webcall is allowed by its suppliers, albeit at least 6 months following delivery of the ordered goods. Faults must be reported to Webcall immediately in writing, but at the latest 14 days after receipt of the purchased items. The guarantee does not extend to consumables and operating material such as batteries, etc. The guarantee lapses immediately if the customer makes any modifications without Webcall’s permission. In the case of defective purchased items, Webcall can improve the defective items or supply the customer with a corresponding replacement. Further claims are expressly excluded.
Webcall guarantees that the products are delivered in proper working order according to the details specified by the manufacturer. Further, Webcall assumes no further guarantees such as for the functionality within an IT system or with a certain application. Webcall makes no guarantee for the ability to resell the supplied products or for their suitability for specific uses.
Webcall offers its partners the same agreed conditions and guarantees as it receives from its suppliers. Guarantees extending beyond this must be arranged separately in writing with Webcall. Guarantee services not covered by the manufacturers will be invoiced to the customer.
During repair periods and improvements, etc., there are no claims for replacements.
Return shipments of deliveries may be done only with Webcall’s written permission and within 8 days. Invoices/delivery notes must always be included.
Responsibility for the selection and the use of the ordered goods as well as for the results achieved with them lies with the customer. The guarantee covers no damages to the ordered goods which can be traced to outside influences, improper operation, modifications, unauthorised changes and other reasons which are not caused by Webcall.
13. Liability
Webcall is obliged to supply its services with care according to the contract, these GTCs and any other contractual provisions.
In the event of claims independent of their legal basis and for customer claims in connection with any assurances, Webcall has unlimited liability for damage caused intentionally or through gross negligence as well as for personal injuries. For damages which are caused by Webcall due to simple negligence, it is liable for the amount of the supplied services but at most in the amount of CHF 50,000. The liability for indirect and consequential losses is excluded to the extent that is permitted by law.
14. Re-export
In the case of goods for which there is a ban on re-exporting them, the following obligation is noted on the invoices: The re-export of these goods is strictly forbidden according to either the office for imports/exports of the Swiss Federal Department of Foreign Affairs or the US Department of Commerce (Office of Export Administration) as well as other foreign authorities for which commitments were entered into, or it is permitted only after receipt of a special permit. This obligation is hereby transferred to the customer, and in the event of any resale the new owner shall also comply.
15. Force majeure
If, despite due diligence, a party is unable to fulfil its contractual obligations due to force majeure, e.g. acts of nature of particular intensity, war, strikes, unforeseen government-imposed restrictions, etc., the performance of the contract or date for the performance of the contract shall be postponed in accordance with the event.
16. Billing
The customer shall not offset liabilities to Webcall against its own claims without Webcall’s consent.
17. Applicable law and place of jurisdiction
All business transactions between Webcall and the customer shall be governed by Swiss law. The provisions of the Vienna Convention are expressly excluded.
The place of jurisdiction is Zurich.
Webcall GmbH
Seestrasse 356
CH-8038 Zürich
Version 2 February 2006
