Terms and conditions
§1 Scope
1.1 These general terms and conditions of devs group GmbH (hereinafter referred to as devs group) shall apply to all legal transactions, i.e. to all services provided by devs group to the contractual partner.
1.2 They shall also apply to the future business and supplementary agreements, even if not expressly referred to.
1.3 General terms and conditions of the contracting party shall expressly not become part of the contract, even if devs group does not expressly object to them.
1.4 The version of these terms and conditions valid at the time of the conclusion of the contract shall apply.
1.5 Amendments shall only be valid if expressly confirmed in writing by devs group and shall only apply to the respective individual business case.
1.6 If individual provisions of the contract or of these terms and conditions should be invalid, the validity of the remaining provisions shall not be affdeep(h2)ected. The invalid provision shall be replaced by a valid provision which comes as close as possible to the intended meaning and economic purpose.
§2 Conditions for the provision of services
2.1 The necessary preparations as well as the necessary performance of services shall be carried out for the account and at the risk of the contracting party.
2.2 The provision of partial services is possible according to the specific offer.
2.3 The devs group shall endeavor to meet the agreed deadlines for the performance of the service as closely as possible. If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as all cases of force majeure, which impede compliance with the agreed deadline for delivery or performance of services, the deadline shall be extended in any case by the duration of these circumstances. These circumstances shall also entitle to an extension of the deadline if they occur at subcontractors.
§3 Cost estimate
3.1 Cost estimates are generally free of charge.
3.2 The cost estimate shall be prepared to the best of our knowledge and shall provide information on the expected project volume and its costs. The actual costs may differ from the amount stated in the cost estimate.
3.3 By signing the cost estimate, the contractor places an order for services to the extent indicated.
§4 Offer
4.1 Quotations are in principle subject to payment and are prepared on the basis of a detailed specification. If no order is placed on the basis of this quotation within the period of validity, the costs for the detail specification and quotation shall be charged.
4.2 Our offers are subject to change.
4.3 The orders of the contractual partner are the actual offer in the legal sense. The contract shall not be concluded until devs group sends a written order confirmation. Devs group shall be entitled to accept orders or contracts even partially or to reject them without giving reasons.
4.4 devs group reserves the right to demand documents from the contracting party in the original and in written form, i.e. by sending them exclusively by mail.
§5 Fees and prices
5.1 Unless otherwise agreed in the order, the prices quoted in the offer shall apply in CHF, which, unless explicitly stated, do not include value added tax.
5.2 In case of an order deviating from the total offer, devs group reserves the right to change the price accordingly.
5.3 The prices are based as above on the costs at the time of the first price offer. If the costs should increase due to changed requirements or general conditions until the time of service provision or within the project execution, devs group is entitled to adjust the prices accordingly. However, the contractual partner will be informed of this in advance.
5.4 Appraisals and the preparation of offers shall be invoiced to the contractual partner according to actual expenditure.
5.5 Travel time shall generally be charged as working time. Costs for accommodation, meals and other travel expenses shall be shown separately and shall not be part of the costs for travel time.
5.6 If the delivery of source code (source code, libraries, etc.) is requested or required by the contractual partner for services offered in the area of software development, a surcharge of 100% on the net costs of any service shall be invoiced. This also applies in particular in the event that the delivery of source code and/or the aforementioned surcharge are not explicitly stated in the offer.
§6 Project management
6.1 All projects shall be handled by devs group in an agile manner.
6.2 The contractual partner is intensively involved in the planning and quality assurance phase in agile project management. Agile project management according to devs group's specifications shall therefore be considered as the subject matter of the contract for any cooperation.
6.3 The project will be iterative, in two-week cycles.
§7 Project duration
7.1 The project starts with the date of dispatch of the order confirmation by devs group.
7.2 Additional services or changes to an existing order always require written form and a separate order confirmation by devs group. The customer implicitly agrees to an extended project duration in case of changes.
7.3 The contractual partner agrees to accept the exceeding of the mutually agreed end date by 25% of the project duration. This will be communicated to the contractual partner immediately as soon as and insofar as it is apparent. In this case, devs group shall not incur any additional costs on the part of the contractual partner.
7.4 Devs group shall be indemnified and held harmless.
§8 Project completion
8.1 A project shall be considered completed when devs group has performed and delivered all activities defined in writing with the contracting party for the fulfillment of the order without any defects.
8.2 The verification of the defect-free delivery shall be ensured by the contractual partner by means of a user acceptance test or acceptance test, in short UAT. Devs group shall grant the contractual partner a time frame of five working days for the UAT after each partial delivery, after completion of an iteration, and after completion of all specified activities for fulfillment of the order.
8.3 The UAT shall be performed by the Contractual Partner directly after each delivery.
8.4 After the end of the UAT, the contracting party shall have a period of another five working days to send devs group a list of defects. The list of defects must be in writing and signed and sent to devs group by mail or e-mail. A company signature of the contracting party is required.
8.5 If devs group has not received a signed list of defects within 10 working days after delivery, the delivery or the order shall be deemed to be fulfilled and accepted.
8.6 The contracting party has the option to accept the order as accepted before the expiration of the above-mentioned period. However, the premature acceptance of the order again requires the written form.
§9 Contents and optimization
9.1 The contractual partner guarantees with regard to copyright that all text elements, graphics, photos, designs, copyrights or other works of art provided are the property of the contractual partner or that the contractual partner may use them.
9.2 With regard to browser optimization of Web Content, the Contractual Partner agrees that such Web Content shall be explicitly optimized only for the following desktop browsers: Internet Explorer in the most current version at the time of signing the contract; Mozilla Firefox in the most current version at the time of signing the contract; Safari in the most current version at the time of signing the contract; Google Chrome in the most current version at the time of signing the contract.
9.3 With regard to the mobile apps, the Contractual Partner agrees that, unless otherwise agreed, these will be developed and optimized to the most current version of the operating system versions publicly available at the time the contract is signed.
9.4 The contractual partner acknowledges that it is generally only possible to support other browsers or browsers with a lower version number than stated in 9.2 with considerable additional effort. This includes in particular browsers for mobile devices such as iPhone and iPad, as well as smartphones and tablets. The additional costs incurred for optimization to adapt to these devices, are not implicitly part of our offers.
9.5 Resources required and not commissioned shall be provided by the contractual partner or commissioned separately. This includes not exclusively, but in particular: Access data to existing hostings, databases or web services; Localized texts and descriptions as well as localized graphics or logos.
9.6 For the development of Android applications, three common end devices shall be used for quality assurance. These will be defined at the start of the project. Optionally, the customer can explicitly define test devices, provided they are made available by the customer at the start of the project.
§10 Terms of payment
10.1 Unless otherwise agreed, payments are due on the date of invoicing without any deductions in the agreed currency.
10.2 In the case of orders comprising several units, devs group shall be entitled to issue partial invoices, for which the payment terms specified for the overall order shall also apply.
10.3 A payment shall be deemed made on the day on which devs group can dispose of it.
10.4 The contracting party shall not be entitled to withhold or set off payments due to warranty claims or other counterclaims.
10.5 For contracting partners outside Switzerland, payment shall generally be made in advance.
10.6 If the contracting party is in default with an agreed payment or other performance from this or other transactions, devs group may, without prejudice to its other rights.
- Suspend the performance of its own obligation until such payment or other performance has been effected and claim a reasonable extension of the performance period,
- Call in all outstanding debts from this or other transactions and charge interest on these amounts from the respective due date at the rate of 5% above the base interest rate, unless the contractor proves costs exceeding this.
10.7 In any case devs group shall be entitled to charge pre-litigation costs, in particular reminder fees and attorney's fees.
10.8 If the payment date is exceeded, fees shall be charged in addition to the default interest:
- For the first payment reminder, a reminder fee of CHF 40.
- For the second payment reminder, a reminder fee of CHF 65.
- For the last payment reminder a reminder fee of CHF 120,-.
10.9 The start of the project shall be deemed to be the day on which the Contractor confirms the availability of this payment to the Customer. This confirmation shall be made in writing without exception.
10.10 It is agreed that a partial invoice may be issued every two weeks. The scope of this partial invoice shall include at least all those services that were delivered in the previous two weeks.
10.11 Delays in payment shall increase the planned lead time of the project by at least the duration of the delay.
§11 Limited warranty
11.1 Devs group shall be entitled and obligated, without regard to fault, to correct any inaccuracies and defects in its performance that become known.
11.2 This claim of the contractual partner shall expire three months after the performance of the respective service.
11.3 This limited warranty shall not apply to software and services provided free of charge. This includes updates, preliminary or test versions, websites and online services, or software or services that have been modified by the contractual partner or third parties. Devs group excludes the warranty for this completely.
11.4 The warranty claim of the customer is limited to the right of rectification.
11.5 In order to claim a rectification of defects for services or functions provided through services in the sense of agile software development, the contractual partner must prove defects in writing within five days as follows:
- The general conditions for the test environment noted in the offer as well as the operating system and the hardware at delivery shall apply as a basis.
- The technically most efficient or simplest way to fulfill a requirement is always assumed. Therefore, there are explicitly no implicitly included functions or acceptance criteria.
- Defects can be explicitly claimed only with reference to written specifications and their acceptance criteria.
11.6 Rectification services do not include repair costs or expense costs resulting from omissions or external influences such as changes in the system environment, incorrect operation, inadequate system and hardware maintenance, inadequate data backup, for which the contractual partner or third parties are responsible. Claims for rectification are completely void in case of changes in the program codes of the project result by the contract partner or third parties. Devs group is entitled to charge the contract partner for additional work performed in this context at the usual hourly rates. For software or other products of third party suppliers included in the scope of services, the warranty of the respective third party suppliers shall apply to the exclusion of any warranty or liability of devs group.
11.7 Defects asserted by the contractual partner must be reproducible at devs group on the basis of the partner's description of the defect.
§12 Liability and compensation
12.1 Devs group shall be liable to the contract partner for damages - except personal injuries - only in case of gross negligence (intent or gross negligence). The liability shall be limited to the amount of the remuneration devs group has received from the contracting party within the development cycle which has the closest connection to the damaging event. This shall also apply mutatis mutandis to damages caused by third parties engaged by devs group.
12.2 Claims for damages of the contractual partner may only be asserted in court within two months after knowledge of the damage and the damaging party, but at the latest within three months after the event giving rise to the claim.
12.3 The contracting party shall prove in each case that the damage is due to the fault of devs group.
12.4 If devs group provides the service with the help of third parties and warranty and/or liability claims arise against these third parties in this context, devs group shall assign these claims to the contracting party. In this case, the contracting party shall give priority to these third parties.
12.5 Devs group shall not be liable for compensation of indirect or consequential damages, loss of profit as well as damages to programs and data carriers. If the contractual partner interferes with the delivered project results, devs group shall not be liable in this respect. Claims for damages on the part of devs group remain reserved. Modifications of software and its decompilation are also considered as interference.
§13 Industrial Property Rights and Copyright
13.1 The copyrights to the works created by devs group and its employees and commissioned third parties (in particular offers, cost estimates, reports, analyses, expert opinions, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, presentations, etc.) shall remain with devs group. They may be used by the contractual partner during and after termination of the contractual relationship exclusively for purposes covered by the contract.
13.2 In this respect, the contracting party shall not be entitled to reproduce and/or distribute the work(s) without the express consent of devs group. Under no circumstances shall an unauthorized reproduction/distribution of the work result in any liability for devs group - in particular for the correctness of the work - towards third parties.
13.3 All documents mentioned above may be reclaimed by devs group at any time and shall be returned to devs group without delay and without being requested if the contract is not concluded.
13.4 The violation of these provisions by the contracting party shall entitle devs group to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
§14 Self-promotion & referencing
14.1 The contracting party shall allow devs group to depict the project as part of devs group's portfolio, to link to it or to use excerpts from it for the purpose of devs group's self-promotion - even after termination of the contract period - free of charge.
14.2 Devs group is entitled to place its name, logo or any other customary designation with a link to the website of devs group on contents created for the contractual partner after consultation with the contractual partner.
§15 Change of address
15.1 The contracting party is obligated to notify devs group immediately of any changes in its contact address as long as the legal transaction subject to the contract has not been completely fulfilled by both parties.
15.2 If the notification is omitted, declarations shall be deemed to have been received even if they have been sent to the address last notified to devs group.
§16 Electronic invoicing
16.1 Devs group shall be entitled to send invoices to the contracting party also in electronic form and the contracting party expressly agrees to this method of delivery.
§17 Choice of law
17.1 Swiss substantive law shall apply to this contract. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
§18 Place of jurisdiction
18.1 The place of jurisdiction for all disputes arising directly or indirectly from the contract is agreed to be the Swiss court locally and factually competent for devs group. However, devs group shall also be entitled to invoke another court having jurisdiction over the contractual partner.
18.2 For all disputes arising from this contract against a consumer who has his domicile, habitual residence or place of employment in Switzerland, one of the courts in whose jurisdiction the consumer has his domicile, habitual residence or place of employment shall have jurisdiction. For consumers who are not domiciled in Switzerland at the time of the conclusion of the contract, the statutory courts of jurisdiction shall apply.
§19 Final provisions
19.1 The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
19.2 Amendments to the contract and these General Terms and Conditions must be made in writing; likewise, any waiver of this formal requirement. Verbal collateral agreements do not exist.
§20 Severability clause
20.1 If the invalidity or unlawfulness of a provision of these GTC is established by a court, also due to changes in the law, the legal validity of the remaining contractual provisions shall not be affected thereby. The invalid provision shall be replaced by a provision that most closely reflects the meaning of the invalid provision and is valid. This also applies to loopholes.
Version from 01.05.2019