appsolut gmbh in Zurich (short “appsolut”) designs, distributes and manages mobile and web-based applications in various areas to support business processes and their tasks. appsolut gmbh reserves the right to distribute further apps in the future or to accept consulting mandates which are subject to these general terms and conditions.
Current products of appsolut which are subject to these terms and conditions:
InCatch (www.incatch.ch) / Support in the construction industry
These GTC govern the rights and obligations between appsolut and customers of appsolut gmbh. Customers of appsolut are companies within the meaning of the Swiss OR.
2. Scope of application
2.1 These GTC regulate the business relationship between appsolut and appsolut’s customers, whether on a paid or unpaid basis (such as in the course of a possible test phase). appsolut provides its services on the basis of these GTC. The mere use of appsolut’s services by the customer causes the present GTC to form the basis of such a business relationship.
2.2 In addition to these General Terms and Conditions, the current license prices of appsolut, which are published on the respective product page, as well as any other individually agreed contractual provisions in written form shall apply.
2.3 Should the customer himself dispose of GTC, the customer confirms by using the services of appsolut that only these GTC apply to the contractual relationship between appsolut and the customer. If the customer has its own GTC, these deviating GTC shall only apply if appsolut expressly confirms this in writing.
2.4 Individual agreements must be made in writing (signature). Informal declarations by appsolut (also by e-mail) are not binding.
2.5 appsolut is entitled to unilaterally amend these GTC. The customer shall be notified of the change by e-mail at least three months before it comes into effect. The customer is entitled to object to the amendment in writing within four weeks of receipt of the e-mail. The change shall be deemed accepted and binding if the user has agreed to the change or has not objected to it within the four-week period. appsolut shall point out these legal consequences and the possibility of objection separately in the notification e-mail.
3. Services provided by appsolut gmbh
3.1 appsolut shall provide the customer with a system for processing business activities. The customer benefits from ongoing further development of the product and acknowledges in return that temporary maintenance times may occur in the course of updates and upgrades.
3.2 appsolut reserves the right to discontinue the product and all specifications of the product for technical or operational reasons. appsolut will inform the customer of this discontinuation at least one month before it comes into effect, at least by e-mail.
3.3 appsolut shall only be responsible for the services provided by appsolut itself. Should the customer involve a third party – for whatever reason – (such involvement requires the prior written confirmation of appsolut in any case), no claims against appsolut shall arise for the customer.
4. Obligations of the customer
4.1 The customer undertakes not to use any technical equipment, software or other data that could lead to an impairment of the appsolut system. The customer is not permitted to make changes to the product himself unless it has been explicitly agreed with appsolut.
4.2 The customer must ensure that its employees handle products made available by appsolut with care. The customer shall be liable to appsolut for any damage caused by the customer or his vicarious agents and companies wilfully or negligently.
4.3 The customer undertakes not to misuse appsolut’s products, not to transfer them to third parties, not to sell them or not to use them in any other way.
4.4 The customer must handle appsolut’s products carefully and store them in such a way that they cannot be accessed by third parties. The customer shall be liable to appsolut for all damages in the event of a breach of obligations affecting him.
4.5 If the customer’s products, which he obtains from appsolut, are blocked due to events for which he is responsible, the customer shall also be liable to appsolut for the costs incurred in accordance with the contract in addition to the costs incurred.
4.6 The customer agrees to be named by appsolut as a reference customer in the external appearance. It is stated that appsolut agrees the use of customer logos, project data, etc. with the customer prior to publication.
5.1 The customer undertakes to use the product provided by appsolut only in accordance with these GTC and not to use the service or storage space provided, in particular for storing or distributing illegal content.
5.2 The customer undertakes towards appsolut to assume sole responsibility for compliance with the legal provisions.
5.3 The customer further undertakes not to use the contractual services in any way or to have them used by others that leads to the impairment of third parties or is hazardous to appsolut’s safety or operations.
5.4 In no case shall appsolut be liable for any claims by third parties based on the breach of these obligations.
6. Service disruptions
6.1 appsolut shall make the product available to the customer. appsolut shall not be liable for any disruptions in performance and any direct or indirect damage caused thereby to the customer. In particular, service disruptions may occur due to connection errors (whether these are in the appsolut system landscape or not) or necessary maintenance work by appsolut.
6.2 The customer undertakes to assist appsolut free of charge in remedying service interruptions. The customer shall inform appsolut of possible service interruptions as soon as possible so that they can be remedied as quickly as possible.
6.3 The customer undertakes to take all necessary measures to ensure that no impairment of the services of appsolut occurs.
6.4 appsolut cannot exclude the possibility that data loss or other impairments may occur in the course of synchronization processes, in particular due to impairments in the customer’s Internet connections. appsolut is not liable for this, regardless of any fault on the part of appsolut or one of its partners.
7. Warranty and liability
7.1 appsolut does not assume any warranty or liability in the event of failure of the product, regardless of the cause of the failure.
7.2 appsolut shall only be liable in case of intent and gross negligence, in case of personal injury also in case of slight negligence.
7.3 appsolut shall not be liable for damage to the customer’s terminal equipment, third-party damage or indirect damage such as loss of profit. Warranty and liability for damages incurred by the customer as a result of delays in projects due to non-performance or defective performance of appsolut products are also expressly excluded. No liability on the part of appsolut shall also be assumed for savings not made, lost data, indirect and consequential damages as well as damages arising from third-party claims.
7.4 appsolut shall not be liable for damages and defects caused by changes to the software, changes to the necessary system settings or application errors.
7.5 If and as long as obligations due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of power supply, failure of means of transport, failure of telecommunication networks or data lines, legal changes affecting the products after conclusion of the contract or other non-availability of products cannot be fulfilled on time or properly, this shall not constitute a breach of contract.
7.6 The end devices of the customer and the Internet connection are not the subject of appsolut’s services. appsolut is not liable for damages and defects that are not within its system area (in particular disruptions of the public communication networks, lack of system requirements, etc.). Current system requirements for using InCatch can be found at www.incatch.ch.
8. Rights of use to software products and documentation
8.1 Insofar as appsolut provides the customer with products or enables the customer to use products within the scope of the services, the customer shall have the non-exclusive, non-transferable, non-sublicensable, limited right, which can be withdrawn unilaterally by appsolut at any time, to use the products in unchanged form.
8.2 For software products of third parties provided to the customer by appsolut, the respective provisions of the manufacturer of these products shall take precedence over the provisions of this Section 8.
8.3 Unless a separate agreement has been made, no further rights to products shall be transferred to the customer. In particular, the customer does not acquire any rights whatsoever to the product, in particular no trademark, patent or other intellectual property rights.
8.4 All documents provided to the customer by appsolut, in particular the documentation on products, may neither be duplicated nor distributed in any way, whether for consideration or free of charge.
9.1 The customer assures appsolut that it will treat all trade secrets made known to it in connection with this contract and its execution as such and will not make them accessible to third parties unless they are generally known, or the recipient was previously aware of them without an obligation to maintain secrecy, or the recipient has been notified or surrendered them by a third party without an obligation to maintain secrecy, or they have been demonstrably developed independently by the recipient, or they are to be disclosed on the basis of a legally binding official or judicial decision.
9.2 The partners called in by appsolut shall not be regarded as third parties insofar as they are subject to a secrecy obligation corresponding to the content of this point.
9.3 Violations of the confidentiality obligation result in the customer being liable to appsolut for all damages.
10. Duration and termination
10. duration and termination
10.1 Unless expressly agreed otherwise, contracts between appsolut and the customer shall be concluded for a limited period of time after selection of the project duration. The customer waives the right to terminate the contract for the period specified in the product descriptions or individual agreements.
10.2 Both appsolut and the customer may terminate contracts concluded for an indefinite period at the end of the invoiced period. Termination shall be effected either upon completion of the project term or in writing to appsolut by a user appointed and authorized by the customer. Depending on the method of payment, the notice period changes as follows:
– Credit card (1 month)
– Invoice or bank transfer (12 months)
10.3 An extraordinary termination by appsolut with immediate effect – if the customer is not entitled to any claims against appsolut – is particularly possible under the following conditions:
10.3.1 The customer provides incomplete or incorrect information or fails to provide the required proof.
10.3.2 The customer is in default of payment for a period of 14 days; a grace period is not necessary;
10.3.3 There is a reasonable suspicion that services are being misused – also by third parties.
11.1 All property, copyright and industrial property rights in and to the Software (including but not limited to images, photographs, animations, video, audio, music, text and “applets” contained in the Software Product), the accompanying printed materials and any copy of the Software are owned by appsolut or appsolut partners. The Software is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The Software is licensed, not sold.
11.2 Use of the App: The Customer may only use the native App, which has been installed on the end user devices, in accordance with the specifications of his contractual partner for this service and only in connection with concrete services.
11.3 Backup Copies: The customer may not make a backup copy of the native app.
11.4 Customer shall not be entitled to reverse engineer, decompile or disassemble the App unless (and only to the extent that) applicable law expressly permits this notwithstanding this limitation.
11.5 Transfer restrictions: Customer may not license, sublicense, loan, lease or otherwise transfer the Software to any third party. The End User shall not be entitled to directly or indirectly transfer or distribute the Software to any third party.
11.6 The temporary assignment of subcontractor accesses in accordance with the product description shall be granted at most.
12. Information duties
12.1 The customer shall inform appsolut immediately of any changes of address or other essential information. If the customer fails to do so, appsolut’s declarations shall be deemed to have been delivered even if they have been delivered to the last valid means of communication.
12.2 The customer accepts that appsolut may also send legally significant declarations to the customer by e-mail, SMS or other electronic media (this also applies to invoices, which may be electronically signed in order to comply with the provisions of the Value Added Tax Act). Declarations are deemed to have been received as soon as the customer can retrieve or take note of them under normal circumstances.
12.3 Non-registered mail shall be deemed received within 2 working days of posting.
13. Terms of payment and other financial conditions
13.1 Unless otherwise stated, all amounts are exclusive of the currently applicable value added tax and other levies.
13.2 Basic charges will be invoiced in advance for the respective billing unit.
13.3 Unless otherwise stated, claims for payment are due in accordance with the terms and conditions of the payment provider.
13.4 The Customer shall bear all bank charges and other fees associated with the transfer.
13.5 If the customer changes the payment data such as credit cards, PayPal or standing orders without prior notice – and if payment thus becomes impossible – appsolut may block access to the product after 14 days. A reminder or collection is deliberately waived.
13.6 A deduction of discount is excluded and will not be granted.
13.7 Payments made by the customer will always be credited against the oldest debt.
13.8 appsolut is entitled to increase the prices for its products unilaterally and appropriately and will inform the customer of this in good time, at least 1 month in advance.
13.9 Any offsetting by the customer against claims against appsolut is excluded. The customer’s right of retention is also excluded.
14. Furthers regulations
14.1 Any disposal by the customer of the rights or obligations existing on the basis of the contract requires the prior written consent of appsolut. appsolut is, however, entitled to transfer contracts to a third party even without the consent of the customer. In this case, these GTC shall continue to apply to the contractual relationship, unless otherwise unilaterally determined by appsolut.
14.2 appsolut is entitled to use third parties in whole or in part to fulfil its obligations.
14.3 Swiss law shall apply exclusively, even if the product is used abroad or any other reference is made to a foreign country. The reference standards provided for in Swiss law and the UN Convention on Contracts for the International Sale of Goods are excluded.
14.4 Any disputes shall be subject exclusively to the local jurisdiction of the competent court. The place of performance shall also be the local competent court.