GTC

General Terms and Conditions of itl Institut für technische Literatur AG (“itl”)

1. Scope of application, form

1. These general terms and conditions (hereinafter referred to as "GTCs") apply to all business relationships between itl Institut für technische Literatur AG (hereinafter referred to as "itl") and its customers (hereinafter referred to as "customers"). 
2. These GTCs apply to all services provided by itl, in particular to contracts for services and software products, mainly in the field of technical documentation, language and translation services and software (hereinafter referred to as "services"). The particulars of the service provision, such as the subject matter, scope or content of the service, shall be agreed in a separate document (offer from itl).
3. The GTCs of itl shall apply exclusively. No deviating, conflicting or supplementing standard terms and conditions of the customer shall become part of the contract unless and to the extent itl has expressly approved their applicability in writing. This requirement for approval shall apply in any case, even if, for example, itl executes delivery to the customer without reservation in knowledge of the customer’s general terms and conditions.
4. Individual written agreements made with the customer on a case-by-case basis (including ancillary agreements, additions and changes) shall always take precedence over these GTCs. 
5. Any legally binding declarations and notifications by the customer in relation to the contract (such as setting of deadlines, notification of defects, withdrawal or reduction) must be submitted in writing and by registered mail exclusively to the address Marktstrasse 28, 8570 Weinfelden.

2. Conclusion of the contract

1. Offers from itl are, unless otherwise specified, always subject to change and non-binding. This shall also apply if itl has provided the customer with documents such as product descriptions or documentation, including documents in electronic form.
2. Only the order of services by the customer shall be deemed a binding contract offer. Unless otherwise stated in the order, itl shall be entitled to accept the customer's offer within five working days of receipt of the order. "Working days" within the meaning of these GTCs include all days from Monday to Friday with the exception of public holidays at the headquarters of itl.
3. Acceptance of the offer by itl can either be declared in writing in the form of an order confirmation or via the provision of the service.
4. The subject of the contract are the services listed in the order confirmation.
5. Unless explicitly agreed otherwise, itl shall be entitled to have the contract with the customer fulfilled in whole or in part by third parties. The customer's consent shall not be required for this.

3. Remuneration and terms of payment

1. Payments shall become due for payment without deduction within 14 days of invoicing ("payment period") and must be made to the itl account specified on the invoice. Even within the context of an ongoing business relationship, itl shall be entitled at any time to provide a service in whole or in part only upon receipt of an advance payment or appropriate security, e.g. in the form of a guarantee. Any reservation in this respect shall be expressed by itl at the latest upon order confirmation. This must be confirmed by the customer immediately, but no later than three working days after receipt of such a reservation from itl. The contract shall only enter into effect when this condition has been fulfilled.
2. The customer shall be in default without reminder if payments are not made within the payment term. In the event that the customer defaults on a payment, any discounts granted by itl shall cease to apply. Irrespective of further claims, the customer shall be liable for default interest of 5% p.a. itl reserves the right to assert further claims for damages due to default. 
3. If the customer does not meet its payment obligation, does not comply with the contract or fails to fulfil the contractual conditions on time, or if circumstances become known that cast the creditworthiness of the customer in doubt, itl shall be entitled to demand immediate payment by the customer of any outstanding amounts, which shall thereupon become due and payable. In addition, itl shall be entitled to immediately discontinue the services to the customer that are governed by this or another contract and to withdraw from any contract at its discretion. The same shall apply if the customer is no longer capable of conducting business in an orderly manner, in particular if bankruptcy, insolvency, debt restructuring or similar proceedings have been initiated against the customer, or if an application for initiation of such proceedings has been made.
4. The method of payment is payment upon invoice. A payment shall be deemed settled when the amount in full has been placed at the disposal of itl. Any delayed payment on the part of the customer shall only be deemed settled when the payment has been received to itl's account.
5. The customer may only offset claims against itl if the claim has been determined as legally valid or is undisputed. Any default in performance on the part of itl shall not grant the customer the right to refuse payment, nor shall warranty claims (see Point 8 of these GTCS) exempt the customer from the obligation to pay.
6. If, after conclusion of the contract, it becomes apparent (e.g. through an application to open bankruptcy, insolvency / inheritance or comparable proceedings) that itl's claim to remuneration is jeopardised by the customer's inability to perform, itl shall be entitled to make provision of the service dependent on prepayment of the order amount in full. In this case, itl shall only be obliged to provide services following payment of the order amount plus VAT. Agreed performance times shall be extended by the time between receipt of the notification from itl to request prepayment and receipt of the customer's payment to itl's account.

4. Service provision, time of service

1. itl shall provide the services listed in the order confirmation.
2. itl shall, in principle, be free to choose the place of performance and to organise its working hours. If an activity is required to be performed at a specific location, itl shall provide the service at this location on a case-by-case basis.
3. itl shall be entitled to have third parties carry out the agreed services.
4. All times specified in the order confirmation for the provision of the services are only estimates for planning purposes, unless the parties have expressly agreed binding service times. 
5. itl accepts no liability for services that are impossible to deliver or for delays in delivery that are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or pandemics) for which itl is not responsible. In the event of hindrances of a temporary duration, the delivery and performance deadlines shall be extended by the period of the hindrance plus a reasonable start-up period. itl shall immediately notify the customer of the occurrence and the removal of the circumstances that gave rise to the force majeure situation. Claims for damages by the customer shall be excluded.

5. Obligations to cooperate on the part of the customer

1. The customer shall fulfil the required obligations to cooperate in connection with the provision of the services by itl. In particular, the customer shall be obliged to immediately provide itl with all information and data necessary to provide the services and to answer any questions from itl.
2. The obligations to cooperate that have been expressly agreed between itl and the customer are the main contractual obligations. The agreed locations and dates for the cooperation services shall be binding for the customer.
3. If the delivery of service by itl requires the cooperation of the customer and this cooperation is not provided within the agreed time period, then the delivery deadlines stipulated in the order confirmation shall be extended correspondingly. The provision of full cooperation by the customer to itl or, in the event the cooperation of the customer is to be effected by a third party, the receipt of written notification to itl that cooperation has been provided, is decisive for the calculation of the extended delivery deadlines.
4. The customer shall be responsible for the actions of its employees and its authorised representatives. The customer shall also be responsible for ensuring that all data and information are made available to itl in good time and that the information is complete and correct. itl shall not be obliged to check the customer's data or information for accuracy.
5. The customer shall immediately inform itl of any concerns, misgivings or differences of opinion with regard to the services.
6. itl reserves the right to claim for damages resulting from the breach of duty to cooperate by the customer. 

6. Delivery

1. Deliveries by itl are carried out exclusively electronically. At the request and expense of the customer, itl may send services on a data carrier to a destination specified by the customer. Unless otherwise agreed, the type of shipping (in particular the transport company, shipping route, packaging) shall be at the discretion of itl.
2. itl shall be entitled to make partial deliveries, provided that the customer is not inordinately disadvantaged by this. 

7. Reservation of proprietary rights

1. itl shall reserve title to the services until payment has been made in full of all current and future claims arising from the contract and from the ongoing business relationship with the customer (secured claims).
2. Should the actions of the customer violate the contract, in particular if there is a default in payments, itl shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or, to the extent that is possible, reclaim the services on the basis of retention of title or to revoke the right of use that was already granted. A request for surrender/revocation shall not automatically constitute a declaration of withdrawal, but rather itl shall be entitled to reclaim the service or prohibit use of the work and reserve the right to withdraw. In the event that the customer fails to make the outstanding payments, itl may only assert these rights if itl previously and unsuccessfully set the customer a reasonable deadline for payment, or if setting such a deadline is not required in accordance with Art. 108 OR.
3. The intellectual property of the contract documents drawn up by itl, including these GTCs, shall not be transferred to the customer, but remain the exclusive property of itl.

8. Warranty rights of the customer

1. itl shall guarantee the agreed quality of the services. If the quality has not been agreed on, the service shall be deemed to be free of defects if it exhibits the properties that the customer can expect from the description provided by itl. itl expressly assumes no liability for public statements by third parties (e.g. advertising statements).
2. Unless expressly agreed, itl shall not guarantee that its services are suitable for the use intended by the customer. In addition, itl shall not provide any guarantee for errors in the services that have been caused

   (a)

   by application errors on the part of the customer;

   (b)

   by a virus attack or other external influences for which itl is not responsible, such as fire, accidents, power failure, etc.;

   (c)

   as a result of the service (in particular software) being used in an operating environment other than one that has been approved by itl, or as a result of errors in the hardware, operating system or software of other manufacturers, unless this type of use is based on the express recommendations of itl; or

   (d)

   as a result of the service being changed by the customer or third party.

3. If the service provided is defective, itl has the right to carry out rework within a reasonable period of time. The right of itl to refuse rework under the legal requirements shall remain unaffected.
4. itl shall be entitled to carry out the rework that is owed dependent on the customer making the payment that is due for the service. 
5. The customer must grant itl the time and opportunity required to carry out the rework.
6. The expenses required for the purpose of inspection and rework shall be borne by itl in accordance with the statutory provisions, provided that there is actually a defect. itl may demand reimbursement from the customer of any costs incurred from an unjustified request for a removal of defects (particularly inspection costs).
7. Any measures taken by itl for the purpose of reducing damage shall not constitute an acknowledgement of a defect; negotiations regarding a complaint shall not constitute a waiver of any kind of objection.
8. Claims by the customer for damages or reimbursement of futile expenses shall, even if defects have been identified, only exist in accordance with Point 10 and shall otherwise be excluded.
9. Warranty claims by the customer shall expire 24 months after the delivery of the services, even if the customer only discovers the defects at a later point. If acceptance has been agreed on, the statute of limitations shall commence upon acceptance.

9. Rights of third parties

1. During the warranty period, itl shall guarantee that the services within Switzerland do not violate the rights of third parties.
2. The customer must notify itl immediately and in writing if claims for damages are made against the customer due to the violation of third-party rights.
3. In the event that the services provided by itl violate the rights of third parties, itl shall be entitled, at its own discretion and taking due account of the interests of the customer, to replace or change the service while maintaining the agreed functionalities in order to remedy the alleged or suspected legal violation.

10. Liability

1. itl shall only be liable for direct damage caused by it or by auxiliary persons through intent or gross negligence. Any liability for indirect or consequential damage such as loss of profit and financial losses of any other kind shall be excluded.
2. The liability of itl for warranty claims or damages shall be excluded if it results from delayed information from the customer; this also includes penalty agreements in favour of the customer.
3. In the event of a breach of duty that is not attributable to a defect, the customer may only withdraw from the contract or terminate the contract if itl is responsible for the breach of duty. An unrestricted right of termination of the customer shall be excluded. 
4. Liability on the part of itl, in particular for technical documentation, language and translation services, shall be expressly excluded if the defect is due to incorrect, faulty and/or incomplete data, documents, information, etc. provided by the customer.
5. The customer shall have no recourse claims against itl from the transfer of a service to third parties if the customer has made agreements with the third party that go beyond the legally binding liability claims (in particular contractual penalties), unless itl has expressly consented to such agreements in writing.
6. The liability of itl shall in any case be limited to five times the net order amount.

11. Confidentiality

1. The customer shall be obliged to treat confidential information provided by itl in accordance with the provisions in this Point 11. "Confidential information" includes all information from itl or a company belonging to the itl group that the customer receives or becomes aware of directly or indirectly, in writing, orally or in any other way. Confidential information, regardless of whether it is provided in software or physical form,

   (a)

   particularly includes business and trade secrets, know-how, technical data, software (including source text and machine code), strategies, technologies, the identity of and information about employees, customers, suppliers, distributors, as well as

   (b)

   any information that is identified as confidential or should be regarded as confidential by its nature.

2. The customer shall be bound to

   (a)

   secrecy with respect to all confidential information provided by itl, to treat the information as strictly confidential and to use it exclusively in connection with the performance of the contract,

   (b)

   to disclose confidential information provided by itl only to those persons who are employed by or work for one of the parties and who rely on knowledge of this information to fulfil the obligations stipulated by the contract, provided that the customer ensures that these persons comply with the obligations in accordance with this Point 11 and adhere to this requirement as if they were bound by it themselves, as well as

   (c)

   to take appropriate measures to protect itl’s confidential information and to avoid disclosure, unauthorised access and unauthorised use of itl's confidential information.

3. The above-mentioned confidentiality obligation shall not apply if and to the extent that the customer can prove that

   (a)

   the information had already been publicly disclosed at the time of receipt or that it was publicly disclosed after the time of receipt through no fault of the customer, (ii) was already known to the customer at the time of receipt,

   (b)

   the information was legitimately made available to the customer by third parties after its transmission without a direct or indirect prior breach of the confidentiality obligation vis-à-vis itl,

   (c)

   itl had given its written consent to disclosure,

   (d)

   the recipient of the confidential information is professionally obliged to maintain secrecy, or

   (e)

   the customer is obliged to disclose confidential information provided by itl over the course of legal proceedings or other official proceedings. In the latter case, the customer must inform itl immediately and, to the extent permissible by law, support itl in preventing or restricting disclosure.

4. Unless further use has been expressly permitted by itl, confidential information of itl must be returned to itl by the customer without request following termination of the contract and written confirmation must be provided that copies have not been retained. All files or other types of storage must be permanently deleted with the proviso that copies required for documentation purposes and information are not included in the regular data backup. These shall continue to be subject to confidentiality. Upon request, the customer shall confirm to itl in writing that all measures have been carried out in accordance this Point 11.4.
5. itl shall have sole ownership, usage and exploitation rights with regard to all confidential information. Unless explicitly agreed, the customer shall not be granted ownership, license, usage or other rights through the contract or the disclosure of confidential information. This applies regardless of whether property rights exist with regard to the confidential information. The use and application of confidential information within the context of the business relationship between itl and the customer shall be excluded.
6. The confidentiality obligation according to this Point 11 shall not end upon termination of the contract between itl and the customer, but shall remain in force for a period of five years.

12. Use of Customer data and rights for reference purposes

     itl shall be entitled to use and link the company name and logo of the customer as a reference on the itl website.

13. Final provisions

1. Swiss law shall apply exclusively to these GTCs and the contractual relationship between itl and the customer with the express exclusion of international contractual standards, in particular the UN Convention on the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship is the headquarters of itl, currently Weinfelden. However, itl shall also be entitled to take legal action against the customer at the customer's ordinary place of jurisdiction.
3. Amendments and additions to these GTCs must be made in writing to be effective.
4. Should a provision in these GTCs become void, ineffective or unenforceable in whole or in part, or should a necessary regulation not be included, the effectiveness and enforceability of all other provisions of these GTCs shall not be affected. In place of the void, ineffective or unenforceable provision or for the purpose of closing the loophole, a legally permissible provision shall apply that, to the extent that is possible, reflects the intention of itl and the customer or what they would have agreed on in terms of the meaning and purpose of these GTCs should they have become aware of the invalid provision or loophole. 
5. The customer shall not be entitled to transfer and/or assign rights and obligations arising from the contractual relationships binding the parties to third parties without the prior written consent of itl. This assignment prohibition shall not apply to monetary claims.