General Terms and Conditions (AGB)
Status: 30.04.2024, V1.0
For cloud, managed services, internet and hardware sales
1. scope of application and validity
These General Terms and Conditions (GTC) govern the conclusion, content and execution of contracts between customers (hereinafter referred to as "Customers") and Macrogate Robotics AG (hereinafter referred to as "Macrogate") for the provision of recurring services in the context of Managed Cloud Services, Managed Network Services, Internet and hardware sales.
One-off services provided by Macrogate in connection with the introduction of the respective service to the customer are not covered by these GTC. These are agreed and remunerated separately on the basis of the GTC for Project Services.
These GTC form an integral part of all offers and contracts between the customer and Macrogate relating to all Managed Services. The customer's GTC are expressly excluded.
2. offer/conclusion of contract
As a rule, Macrogate submits an offer to the customer in the form of a contract proposal. Macrogate's offer, including presentations, is generally made free of charge.
Unless otherwise specified in the offer, Macrogate shall remain bound by the offer for 12 weeks from the date of issue.
The contract is concluded when both parties sign the contract. The contract is deemed to have been concluded in any case upon productive use of the service by the customer.
Directed services can also be ordered by the customer by telephone or e-mail. Directed services are services provided by Macrogate that are not included in the applicable service descriptions.
3 Subject matter and components of the contract
As part of the Managed Services, Macrogate provides services in connection with the delivery, operation, maintenance and monitoring of the customer's robotics and ICT infrastructure.
The Cloud Managed Services include services in the areas of data transmission, Internet, security, system engineering, network (LAN/ WAN/ WLAN) and consulting.
The content and scope of the services to be provided by Macrogate are regulated in detail in the service descriptions of the relevant services and in the contractual document signed by the customer and Macrogate. The entire contractual agreement between the customer and Macrogate consists of the following documents:
- Addenda / contract supplements
- Service contract
- Service description per service
- GTC
In the event of a contradiction between the individual documents, the above-mentioned order of precedence applies.
4. documentation, protocol and report
Macrogate ensures that the relevant documentation is updated as necessary as part of the Managed Services. Macrogate carries out maintenance and servicing work that is necessary for smooth operation. If the maintenance is charged on a time and material basis, the customer receives a work report or the expenses are reported monthly in accordance with Macrogate's service recording system. The information includes the date, type and duration of the Macrogate service provided.
5. changes in performance
The customer has the option at any time to purchase additional services from Macrogate or more services as part of an agreed service. The customer is entitled to reduce the agreed services by up to 25% to the next billing period applicable to him after expiry of the minimum contract period in accordance with Section 9 and in compliance with the minimum requirements of the service. Any further reductions must be made in compliance with the cancellation period in Section 10.
Changes to services must be ordered in writing (letter or e-mail). If the adjustment of the services results in additional work for Macrogate, this must be remunerated separately (management service).
6 Prices and terms of payment
The contractually agreed service subscriptions are invoiced to the customer periodically in advance at the agreed flat rate. The flat rate covers the services necessary for the proper fulfilment of the service, but at most those services that are defined as standard services in the respective service description. Call charges for telephone services are invoiced in the following month.
Additional services that are not included in the applicable service description (services provided by a director or optional services) shall be invoiced at the agreed prices.
Taxes and duties levied on the conclusion or fulfilment of the contract existing between the parties, or any increase thereof, shall be borne by the customer. All prices in offers and contracts between the customer and Macrogate are quoted net, without discount, in Swiss francs. Expenses and ancillary costs incurred by Macrogate will be invoiced additionally.
Unless otherwise agreed, Macrogate's invoices must be paid within 10 days of the invoice date. After expiry of the payment deadline, the customer is in default without further reminder and Macrogate is entitled to 6% default interest as well as compensation for all reminder, collection, legal and court costs and any other damages.
Macrogate will send the customer a reminder and set a grace period of 10 days. If the customer allows the grace period to elapse, Macrogate will set a final grace period of another 10 days. If the customer still fails to pay the outstanding invoices, Macrogate has the right to suspend or terminate the provision of the agreed services without further notice. The resulting damages and costs shall be borne by the customer.
7. ownership of hardware
Unless expressly agreed otherwise between the parties, no ownership is transferred to hardware that Macrogate procures or makes available to the customer as part of the fulfilment of the contract. This also applies if the hardware is installed and operated on the customer's premises. The customer has the right to use the hardware within the scope and for the purpose of the service purchase.
Macrogate or a third party shall remain the owner of the hardware. At Macrogate's request, the customer is obliged to co-operate immediately with any measures required to protect Macrogate's or the third party's property and to fulfil all formalities necessary for the establishment and maintenance of the retention of title at its own expense. The removal of labelling and markings indicating the ownership of Macrogate or a third party is prohibited.
For the duration of the retention of title, the customer shall, at its own expense, handle the delivered items with care, protect them from damage and access by unauthorised third parties and insure them appropriately. Furthermore, the customer shall take all measures to ensure that the title of Macrogate or the third party is neither impaired nor cancelled.
8. involvement of subcontractors
Macrogate is authorised to engage subcontractors to provide its services in accordance with this contract. Macrogate shall be liable for the fault of the subcontractors as for its own.
9 Obligations of the customer
The customer is obliged to create all technical and organisational framework conditions in good time so that Macrogate can provide the agreed services correctly.
In particular, the customer is obliged to name competent and sufficiently authorised contact persons, to ensure access to data and rooms and to provide Macrogate with all necessary information in the required form and to keep it up to date. This applies in particular, but not exclusively, to the information required by Macrogate in order to correctly licence the software required for the provision of the services.
The customer is also responsible for ensuring the correct licensing of the software used by it and supported by Macrogate. If an ongoing maintenance contract with the supplier of hardware or software is required for the provision of maintenance and operating services, the customer must ensure that it has corresponding valid contracts in place.
The customer is also responsible for the protection and correct use of user passwords and passwords in his company.
The customer is solely responsible for the content of data stored on Macrogate's systems and the lawful use of the services. If unlawful use is reported by a competent authority, if it is obvious or if there is considerable suspicion of such use, in particular due to information from third parties, Macrogate is entitled to interrupt the provision of its contractual services, to suspend the service for a certain period of time and/or to terminate the contract without notice and without compensation. Macrogate is also legally obliged to hand over the customer's data on the basis of a court order or an official order.
We expressly reserve the right to take further measures and to assert claims for damages in court in the event of unlawful use.
10 Commencement and termination of the contract
Contracts commence when they are signed by both parties or when the customer receives the service.
The customer is obliged to comply with the minimum contract term. Unless otherwise agreed, the customer may terminate the contract subject to a notice period of 3 months.
Each party has the right to extraordinary termination of the contract with immediate effect if the other party continues to seriously breach important provisions of the contract despite a written warning and the setting of a 10-day grace period to restore the contractual situation. The parties recognise the following in particular as good cause:
- Default of payment by the customer
- Unlawful use of the services in accordance with section 9
- Bankruptcy, cessation of business activities or liquidation of the customer.
11 Consequences of contract termination
In the event of termination of the contract, regardless of the reason, both parties shall co-operate for the purpose of an orderly termination of the contract and transfer of the customer's data. Macrogate undertakes to return to the customer all data and hardware belonging to the customer upon termination of the contract and to support the customer in the necessary migration activities.
The customer is obliged to inform Macrogate in good time before the end of the contract of the support required for the migration activities. Upon request, Macrogate will provide the customer with an offer for the required services. Macrogate shall provide the agreed personnel resources and grant the customer or a competent third party authorised by the customer access to all necessary rooms and access to the necessary systems. Compensation for Macrogate's expenses in connection with these services shall be subject to the prices and payment terms applicable at the time of cancellation. Macrogate may demand advance payment for these services.
If the parties cannot agree on a procedure regarding the migration of the customer's data, Macrogate shall provide the customer with a copy of its data on a data carrier upon termination of the contract and uninstall the customer's software from its own systems on this date.
Upon termination of the contract or after the migration of the customer's data, Macrogate will irretrievably delete all of the customer's data that is still on its productive systems at that time, unless Macrogate is legally obliged to retain it. The customer is entitled to check the deletion of the data on the systems itself or through independent third parties at its own expense prior to the termination of the service.
In the event of a general or partial termination of the contract, irrespective of the reason for termination, the customer is obliged to return to Macrogate everything it has received from Macrogate during the fulfilment of the contract. This applies in particular, but not exclusively, to hardware that Macrogate has installed on the customer's premises in order to be able to provide the agreed services. The return by the customer must take place within 5 days after termination of the respective contract or after completion of the migration services.
The customer's hardware and software operated in Macrogate's data centre will be uninstalled by Macrogate at the end of the contract. The costs associated with the dismantling of the service will be invoiced to the customer at the agreed prices on a time and material basis.
Final provisions
12 Confidentiality, data protection and data security
The contracting parties shall treat as confidential all facts that are neither in the public domain nor generally accessible. In case of doubt, facts must be treated confidentially and there is a mutual duty of consultation.
This confidentiality obligation already exists during the contractual negotiations and continues after termination of the contractual relationship as long as there is a legitimate interest in confidentiality. Statutory duties to provide information remain reserved.
Macrogate is aware that it is acting as a commissioned data processor in accordance with Art. 10a FADP in the context of providing the services and may only process the customer's data for the agreed purposes. In particular, Macrogate will not disclose the customer's data to unauthorised third parties unless there is a legal obligation to do so, for example due to a court order or an official order.
Macrogate shall take appropriate technical and organisational measures to protect the customer's data from access by unauthorised third parties. The measures to ensure data security are described in the service descriptions of the individual services and in the security concept and correspond to the standards customary in the industry. The customer is obliged to check these and to agree additional security measures with Macrogate if these are not sufficient for him.
13 Warranty and liability
Macrogate shall provide its services professionally and carefully and in accordance with the agreed specifications. Macrogate guarantees to comply with the agreed service levels. In addition, Macrogate will deploy sufficiently qualified employees to provide the services.
However, Macrogate cannot guarantee completely error-free, undisturbed or uninterrupted operation in full or only within the scope of the agreed service level. This warranty does not apply in the event of incidents or circumstances whose causes lie within the customer's sphere of control, for which the customer is jointly responsible or which are wholly or partly attributable to the customer's fault, or in the event of force majeure.
Macrogate is dependent on the services of third parties for some of its services (e.g. internet connection / mobile data transmission). Macrogate endeavours to ensure that these supplier services are provided in perfect quality and that any defects are rectified by them within a reasonable period of time. However, Macrogate is not responsible for service interruptions or other restrictions caused by these suppliers. In particular, Macrogate cannot be obliged to provide replacement services in such cases.
Macrogate warrants that it and any third parties it engages have all rights to provide its services in accordance with the contract. All documents provided by the customer to Macrogate, including those in electronic form, may only be used and copied for the provision of services. In this respect, the customer warrants that the use of the documents by Macrogate does not infringe any industrial property rights of third parties.
Unless otherwise agreed, the place of jurisdiction is the headquarters of Macrogate Robotics AG
