These Terms and Conditions for timeSensor AG, including the software licence agreement, software maintenance contract and server maintenance contract, apply exclusively, unless a separate agreement has been expressly made with the customer in text or written form.
The receipt of the customer’s fully completed order form, whether physical or electronic, or the signed order confirmation by timeSensor AG constitutes the customer’s offer to conclude a contract. timeSensor AG accepts offers from customers within 10 days. Any offers from timeSensor AG are also valid for 10 days. In case of doubt, the order confirmation from timeSensor AG decides the contract content.
Software Licence Agreement for timeSensor® Products
Please read the following conditions carefully before using timeSensor® software. By activating or using timeSensor® software, you agree to the following provisions. If you do not agree to these terms, do not download or use timeSensor® software.
1. Scope and General Provisions
This software licence agreement regulates the conditions for downloading, installing and using timeSensor® software (hereinafter “Software”) between timeSensor AG and the user (hereinafter “Customer”). timeSensor AG hereby grants the customer the right to use the respective version of the timeSensor® software in accordance with the following conditions, regardless of the form of storage of the software. timeSensor AG reserves all rights that are not expressly granted to the customer. The licences granted under this contract are limited to the use of the copyrights of timeSensor AG and, if applicable, its licensors to the software. If the customer has received a data carrier on which the software is stored, only this data carrier becomes their property. timeSensor AG and/or the licensor(s) of timeSensor AG remain the owner of all ownership and other rights to the software. This Software Licence Agreement covers any software updates that replace and/or supplement the original software, unless such update requires a separate licence.
2.Usage Rights and Restrictions on Use
2.1 Principles
In return for payment of the corresponding licence fee, timeSensor AG grants the customer a limited or unlimited, depending on the model selected, non-exclusive and non-transferable licence to install and use the software as intended, for the purpose of processing the customer’s data.
Customers can choose between the Start Edition, Easy Edition, Smart Edition, Business Edition, First Edition and Department Edition models. The scope of services is fundamentally based on the individual agreement and, if applicable, the timeSensor® price list valid at the time of the contract, subject to other statements in these Terms and Conditions.
2.2 Application of the Start Edition and Sponsored Start Edition
timeSensor® Start Edition is made available to the customer free of charge up to a service entry/invoicing of CHF 50,000 or €40,000, or the equivalent per year. With the timeSensor® Sponsored Start Edition, this limitation does not apply, and instead the customer is shown advertising when using the software.
timeSensor® Start Edition and timeSensor® Sponsored Start Edition may only be installed on a single computer and used by a single user.
The customer is entitled to transfer the software from one computer to another, provided that the software is never installed and/or used on more than one computer at the same time. The transfer requires a renewed activation.
2.3 Application of the Easy Edition, Smart Edition, Business Edition, First Edition and Department Edition
timeSensor® Easy Edition, Smart Edition, Business Edition, First Edition or Department Edition may be used in a client/server environment, with no limitation on the number of client computers, provided that the software is in no case used by more than the permitted number of concurrent users. One workstation must be licensed for each user of the software (“named user licence”), or, if so specified in the individual contract, one workstation must be licensed for each simultaneous user of the software (“concurrent user licence”).
The customer is entitled to transfer the software from one server computer to another, provided that the software is never installed and/or used on more than one server computer at the same time. The transfer requires a renewed activation.
2.4 Software Environment
The timeSensor® software may only be used with a suitable and compatible environment, i.e., computer hardware, operating systems and any other programmes that may be required.
2.5 Further Instructions
The customer is entitled to make one copy of the software in an executable form for backup and archiving purposes only. The backup or archival copy must be marked as such.
The customer has the right to parameterise the software at their own risk, to the extent provided in the documentation, and / or to connect it to interoperable programs. Any further change or further development constitutes an infringement of the intellectual property rights of timeSensor AG and is not permitted.
If it is necessary to connect the software with interoperable programs, the customer can request the necessary interface information from timeSensor AG in writing. If timeSensor AG does not provide this information within 30 days, the customer has the right, after prior written notification, to access the information required for this purpose by converting the machine-readable program (object code) into the source language (source code). Any further return of the software to the source language constitutes an infringement of the intellectual property rights of timeSensor AG and is not permitted.
In particular, the customer is not entitled to sublicense, sell, lend, rent, lease or share the use of the software.
3. Activation
The commissioning of the software and licence expansion (increase in the number of users) or change (Sponsored Start Edition, Easy Edition, Smart Edition, Business Edition, First Edition, Department Edition) requires activation, using an activation code. The respective activation code will be sent to the customer after the order process has been completed. Activation of the software requires a functioning connection to the Internet.
4. Duration, Termination and Modification of the Contract
Depending on the model selected, this software licence agreement is concluded for a limited or unlimited period.
If a monthly licence fee is agreed, the minimum rental period is 12 months. Thereafter, the customer can terminate the lease with a notice period of three months at any time to the end of the month, in writing or by e-mail.
timeSensor AG can terminate the software licence agreement for good cause at any time and without notice in writing (i.e. also by e-mail). An important reason exists in particular if: (a) the customer violates the provisions of this contract and does not remedy this violation within ten calendar days, despite a written reminder; (b) The customer is payment arrears of any Licence Fees; (c) in the case of a licence agreement for a simple partnership under Swiss law (or an analogous foreign legal construct) as the licensee, there is a change in the composition of the simple partnership (in particular the departure of one person) or the simple partnership is dissolved or ceases its business activities; (d) the customer is declared bankrupt or the debt restructuring moratorium is granted.
Upon termination of the software licence agreement, the customer’s right to use the timeSensor® software expires. Unless otherwise stipulated in the contract, the customer is not permitted to reclaim licence fees that have already been paid if the contract is terminated, for whatever reason. Upon termination of the software licence agreement, the customer is obliged to stop using the software immediately and to immediately and irrevocably delete all copies of the software or parts thereof in their possession.
In the event of a licence extension or change, the existing contract will expire when the licence is activated again and will be replaced by a new contract in accordance with the order confirmation from timeSensor AG.
5. Licence Fees and Terms of Payment
The licence fees depend on the licence type and the number of users and are determined according to the contract with the customer or the order confirmation from timeSensor AG. Unless expressly stated otherwise, the licence fees are payable and due at the beginning of the contract for its entire term.
Unless expressly stated otherwise, all licence fees do not include the statutory value-added tax applicable at the time the contract was concluded or extended.
If timeSensor AG does not receive payment, the customer will be in arrears no later than 30 days after the due date and receipt of an invoice or payment schedule, even without a reminder.
6. Warranty
timeSensor® products are standard software and are licensed to the customer by timeSensor AG without any warranty of any kind. Due to the software licence agreement, timeSensor AG does not offer any support services for the software. These may be based on the software maintenance contract. Any warranty, in particular for the absence of obvious and hidden defects and for the non-infringement of third-party rights, is waived in full. Any errors or suggestions can be reported by the customer to timeSensor AG, whereby there is no legal entitlement to error correction.
Also, specifically excluded from the warranty are restricted access options to the computer systems of timeSensor AG while maintenance work is being carried out.
7. Software Maintenance Contract
7.1 Free Licence
If the customer obtains a free licence (Start Edition or Sponsored Start Edition), it is not possible to conclude an additional software maintenance contract. Any services will be charged at cost according to the individual agreement, or timeSensor® price list valid at the time of performance.
7.2 Monthly Licence Fee
The conclusion of a software licence agreement for the Easy Edition, Smart Edition, Business Edition, First Edition or Department Edition with a monthly licence fee includes the conclusion of a reduced software maintenance contract in accordance with the following conditions (section “Software maintenance contract for timeSensor® products”).
7.3 One-time Licence Fee
When concluding the software licence agreement with a one-time licence fee, the customer can also conclude a one-year software maintenance agreement according to the following conditions.
The licence extension during the running software maintenance contract requires an adjustment of the software maintenance contract. The software maintenance fee for the licence extension is calculated pro rata temporis up to the predetermined expiration of the software maintenance contract.
8. Limitation of Liability
timeSensor AG is liable for whatever legal reason only in the case of intent and gross negligence. Any liability for loss of profit, indirect damage, consequential damage, loss of data and damage to third parties is – to the extent permitted by law – completely excluded. In the event of non-contractual use by the customer, timeSensor AG shall not be liable.
9. Third-Party Software
Certain components of the software or the software environment can be sublicensed to the customer by timeSensor AG or licensed by timeSensor AG on behalf of the customer, but for their own account.
10. Special Provisions for Demo Versions
timeSensor AG provides the customer with demo versions free of charge. The right to use demo versions is limited to product evaluation without productive use for data processing. For the rest, the above items 2.1, 2.2, 2.3, 2.4 and 2.5 apply accordingly.
The licence agreement for demo versions is valid for 3 months after downloading the software. For the rest, the above number 4 applies.
The above numbers 1, 6, 8, 9 and 10 are applicable for demo versions. Sections 3, 5 and 7 are not applicable.
11. Privacy
timeSensor AG uses all customer data of which it is aware within the framework of the applicable national and international data protection regulations, in particular the Federal Act of June 19, 1992 on Data Protection (FADP). In terms of the DSG, timeSensor AG informs its customers of any data processing.
11.1 Scope of Data Processing
timeSensor AG collects customer data when the order is placed, either in the context of initiating a contract in direct contact or online. In addition to personal data, various data about the technical infrastructure is also recorded depending on the service, e.g. hardware serial numbers, software licences, network environment, installation routines, IP addresses.
The software itself transmits certain technical data to the timeSensor AG server at regular intervals, e.g.
- Build numbers, version numbers, licence numbers, MAC addresses of the host computer, etc.
- In connection with specific error messages: the place in the programme where an error occurred and the time the error occurred, error description, user, environment information such as the version of the database used, operating system
- In connection with updates: currently used version number of the software
- Related to the licence validity: Licence Key
11.2 Purpose of Data Processing
The data recorded by timeSensor AG is only used for the purposes of comprehensive customer support and the specific fulfilment of the contract, in particular troubleshooting, product improvement, licence validity, update maintenance and quality assurance. In addition, timeSensor AG is entitled to use the data for information purposes about other products.
11.3 Transmission to Third Parties
If timeSensor AG works with other companies to fulfil the contract (ordering hardware, software, licences, domains, etc.), it may be necessary for certain data to be made available to such companies in order to fulfil the contract. In this case, only the data necessary for the fulfilment of the contract will be transmitted. A transmission for marketing purposes to third parties does not take place.
11.4 Transmission Abroad
timeSensor AG is also entitled to transfer the data to commissioned third-party companies abroad, provided this is expedient for the data processing described in this section. They are committed to data protection to the same extent as timeSensor AG. If the level of data protection in a country does not correspond to that in Switzerland, timeSensor AG will contractually ensure this.
11.5 Data Security
timeSensor AG protects the data in accordance with the legal requirements and takes appropriate technical and organisational measures to protect, in particular, access to data, its transport, storage and input. The security measures are continuously adapted and improved in line with technological developments.
11.6 Right to Information, Correction or Deletion of Data
The customer has the right to assert their data protection rights at any time and to request information as to whether and which personal data about them is being processed. The customer can have their personal data corrected, blocked or deleted at any time with written notification and proof of identity. The customer is aware that even after a request for blocking or deletion, some of their personal data must be retained within the framework of the statutory or contractual storage obligation (e.g. for billing purposes). Furthermore, deleting the data can result in the customer no longer being able to obtain or use certain services, products, software, etc. from timeSensor AG.
11.7 Consent
By using the software, the customer agrees to the processing, use and disclosure of the data within the scope and scope of the purposes described in this section.
Software Maintenance Contract for timeSensor® Products
1. Services Provided by timeSensor AG
The software maintenance contract guarantees the customer against payment of the corresponding annual respective software updates available for a monthly fee for the software licensed by him and the use of a telephone information service (hotline) according to the following provisions:
Software updates timeSensor AG informs the customer about new updates and makes them available on request, with timeSensor AG determining the choice of medium. As a rule, updates take place online and require a functioning Internet connection on the part of the customer. The customer must update the software environment in advance if an update requires this. The software maintenance does not include an installation service by timeSensor AG.
Updates are made at the discretion of timeSensor AG for bug fixes and general improvements to the software. Major upgrades, on the other hand, are associated with new functions or extensions to the software, or take place in the software environment (e.g. in the OS or database server) in the case of upgrades. Major upgrades are not covered by the software maintenance contract. Additional charges may apply for major upgrades.
Hotline The telephone information service (hotline) supports the customer via telephone in using the programme should any problems arise. The hotline is available to the customer via a telephone connection (subject to a fee at the standard rate) every working day from 9:00 a.m. to 12:00 p.m. and from 2:00 p.m. to 5:00 p.m. (CET). For software licences with a monthly licence fee, the hotline is provided and billed according to the timeSensor® price list, valid at the time of provision. In the other cases, the telephone information service is free of charge as part of the software maintenance contract.
Information is limited to instructions lasting a maximum of 30 minutes or to references to FAQs or training videos. No training is given on the hotline. If there is a greater need for training, corresponding fee-based services (training courses or workshops) are available.
As part of the implementation of updates (installation of new versions) and to diagnose problems in connection with hotline support, the customer expressly allows timeSensor AG to access the customer’s server using the third-party software TeamViewer. TeamViewer is pre-installed when the server is delivered to the customer. At the customer’s request and for an additional charge, timeSensor AG will replace access via TeamViewer with VPN access.
2. Compensation
2.1. General
The software maintenance flat rate depends on the software to be maintained according to the existing software licence agreement, and is determined according to the contract with the customer or the order confirmation from timeSensor AG. Unless expressly stated otherwise, the software maintenance flat rates are calculated per year.
Unless expressly stated otherwise, all software maintenance flat rates are valid, plus the statutory value-added tax applicable at the time the contract was concluded or extended.
One-off and recurring payment obligations of the customer are due immediately from the start of the contract for the duration of the respective payment period, unless timeSensor AG expressly stipulates a later due date.
If timeSensor AG does not receive payment, the customer will be in arrears no later than 30 days after the due date and receipt of an invoice or payment schedule, even without a reminder.
2.2. Surcharges
Inquiries and orders that are outside of the defined availability times will be carried out by timeSensor AG as far as possible and according to capacity. The expenses are charged according to the contractually agreed regular hourly rates, plus the following surcharges:
- Monday to Friday, from 17:00 pm: +25 %
- Saturday: +50%
- Sunday: +100%
3. Duration and Termination of Contract
The duration of the software maintenance contract is determined by the contract with the customer or the order confirmation from timeSensor AG. It ends without notice after the end of the agreed period, calculated from the conclusion of the contract. This applies to the software maintenance contract as a whole, regardless of any licence changes or extensions.
If timeSensor AG sends the customer an invoice after the end of the contract period, this constitutes an offer to extend the contract. The customer accepts the offer by paying the invoice amount within one month.
If the customer does not sign the software maintenance contract at the same time as the software licence contract, or if the customer wishes to renew the software maintenance contract before or after it expires, the (new) software maintenance contract will begin in any case, even in the event of a longer interruption after the expiry or initial agreement, to the time of the expiry of the existing software maintenance contract (or, without a previous software maintenance contract, to the time of the conclusion of the software licence agreement) brought forward or backward. In this case, this time is also decisive for the calculation of the expiry time (for example: The original software maintenance contract ran from January 1st, 2013 to December 31st, 2013 and was then not extended by the customer. On June 15th, 2014 the customer would like to sign another software maintenance contract for one year up to June 14, 2015. The beginning of the software maintenance contract is related to the date of expiry of the previous contract, which means it begins on January 1, 2014 and ends on June 14, 2015. The fee is calculated according to this contract period).
If the customer is in default of payment, timeSensor AG can terminate the software maintenance contract at any time with immediate effect in writing or by email.
The customer can terminate the software maintenance contract at any time with immediate effect in writing or by email.
If the software maintenance contract is terminated prematurely, the customer is not entitled to a refund of the software maintenance flat-rate.
4. Further Instructions
Sections 6 and 8 of the above terms and conditions of the software licence agreement are also applicable to the software maintenance agreement.
timeSensor AG Server Maintenance Contract
1. Introduction
In day-to-day work with timeSensor®, it is easy to forget that the hard work of data storage lies with the “4D Server” database. This only works as well as the physical server (hereinafter timeSensor® server) that hosts it.
2. Scope of Services
Depending on the services selected by the customer (according to the individual contract), timeSensor AG provides the following services:
2.1. Basic Package
- • Monitoring of the timeSensor® servers
- Monthly monitoring of log files
- Monthly instalment of security updates and updates for the macOS operating system (minor updates)
- Monitoring of database
- Monthly testing of database integrity
- Annual reorganisation/compression of the database
- Local backup monitoring
- Monthly data backup check
- Test: annual restoration of data backups
- Installation of updates and interim updates of the 4D Server and timeSensor® LEGAL, as necessary
- Database repairs, if necessary
- Fault diagnosis; Response time within 8 working hours during on-call times (Monday to Friday, 09.00-17.00 h) as required
Orders placed outside of the defined availability times will be carried out by timeSensor AG as far as possible and to the extent possible. The expenses are charged according to the contractually agreed regular hourly rates, plus the following surcharges:
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- Monday to Friday, from 17:00 pm: +25 %
- Saturday: +50%
- Sunday: +100%
Most services are preventive in nature. In the event of a fault, timeSensor AG supports the customer in diagnosing the error. As a rule, troubleshooting (especially in the case of hardware defects) is the responsibility of a local service provider, who may have to be commissioned and compensated by the customer.
Individual maintenance work (particularly installations, database reorganisations, database repairs) can lead to temporary service interruptions. These maintenance windows are determined in consultation with the customer. timeSensor AG endeavours to keep business interruptions as short as possible. There is no entitlement to maintenance windows outside of the on-call times.
2.2. Reduction of the Maximum Response Time
The start of a fault diagnosis during timeSensor AG working hours to within 4 hours of receipt of the error message.
2.3. Enhanced Security
Remote maintenance via VPN instead of TeamViewer; Set up by customer using a local technician (not included)
2.4. Online Secondary Backup
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- Setting up an online data backup
- Monthly check of the online data backup
- Annual test restoration of the data from the online backup
- Administration
Special conditions for the secondary backup:
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- Lead time from the order until the back-up is available in an emergency: 2 weeks
- Billing of the option surcharge from the operational readiness of the online backup
2.5. 4D Server Maintenance
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- •Installation of new database versions
- • Management of the customer’s 4D licences (timeSensor AG ensures that the customer always has the correct number of 4D licence entitlements. If necessary, timeSensor AG will procure the licences directly from 4D on behalf and for the account of the customer. timeSensor AG only arranges the transaction of a maintenance contract between the customer and 4D, which guarantees the customer free access to new 4D versions. The content of this 4D maintenance contract, in particular the price of the 4D maintenance, is based on the conditions of 4D Inc. and can be adjusted.)
2.6 Online Backup Server
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- Activation of an online backup server to bridge the gap for a maximum of 4 weeks
- Setting up the database with customer data
- Instructions on how the customer can access the database in the event of a fault
- Return migration after repair/replacement of customer’s server
Special conditions for the backup server:
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- Lead time from order until the replacement is available in an emergency: 2 weeks
- Billing of the performance surcharge from the operational readiness of the online replacement server
- For technical reasons, the online backup server is slower than a local server. This can significantly reduce the working speed of timeSensor® LEGAL.
3. Common Provisions
3.1. Requirements for the Provision of Services
The following requirements apply in particular for the provision of services:
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- The customer’s server to be maintained can be reached via a permanent broadband internet connection;
- The customer’s server to be serviced is provided with a working UPS power supply;
- The customer uses 4D Server as the database;
- The customer has installed and licensed timeSensor®;
- The customer grants timeSensor AG access to their system (via TeamViewer or VPN) insofar as this is necessary for the fulfilment of the contract;
- Further requirements may be announced in individual cases.
3.2. Maintenance Time
The performance intervals of the individual maintenance measures are indicative (+/- 15 working days for monthly services, +/- 40 working days for annual services). The exact time of execution is at the discretion of timeSensor AG.
3.3. Terms of Payment/Invoicing
The price of the services depends on the respective individual contract. Payments are due annually in advance and are to be made by cash transfer. timeSensor AG issues a written invoice for this. If the customer terminates the maintenance contract, a refund of payments already made is excluded.
3.4. Reporting
timeSensor AG reports to the customer periodically on the services actually provided. Critical diagnoses, i.e. diagnoses which trigger a need for action on the part of the customer, are communicated separately in a form appropriate to the urgency (e-mail, telephone) after they become known.
3.5. Other Contract Terms
If the service is not provided or is defective, the customer must send a written reminder to timeSensor AG within 8 working days of the defect being discovered, but no later than within 8 days of the last report; otherwise the service provided by timeSensor AG is deemed to have been provided in accordance with the contract.
In the event of a timely reminder, timeSensor AG has the right to subsequent performance. The supplementary performance period is (from receipt of the reminder) 8 working days for monthly services and 20 working days for annual services. Working days and days off are based on the official calendar of the Canton of St. Gallen.
If the omitted or defective service has become obsolete as a result of time passing, timeSensor AG will refrain from subsequent performance of the service in question, unless the customer expressly insists on this.
If the provision of contractual services fails for reasons that are within the customer’s sphere of influence (in particular a lack of access authorisation, inability to reach the IT infrastructure, faulty hardware, lack of cooperation, etc.), timeSensor AG will inform the customer immediately by email. In the case of a longer-lasting hindrance to performance, a single notification is sufficient. timeSensor AG has the right, in consultation with the customer, to attempt to provide the contractual service again within 8 working days.
If the obstacles to the fulfilment of the contract that are within the customer’s sphere of influence cannot be remedied within these 8 days, the contract is deemed validly fulfilled by timeSensor AG.
If the fulfilment of the contract is made significantly more difficult for timeSensor AG due to causes that are beyond the sphere of influence of timeSensor AG and the customer (external causes), the parties will negotiate an adjustment to the contract. If the parties fail to reach an agreement, the contract in relation to the service in question is deemed to have ended from the date on which the external cause occurred. A significant aggravation of performance is assumed if the effort increases by 1/3.
3.6. Liability
Liability for late and poor performance is limited to the contractual value of the individual service.
Liability for consequential damages is excluded to the extent permitted by law.
External service providers such as 4D are not employees of timeSensor AG. timeSensor AG merely mediates a contractual relationship between the customer and the external service provider. In particular, timeSensor AG is not responsible for any defective fulfilment of the contract by external service providers.
3.7. Cancellation
The minimum contract term is one year. Thereafter, the server maintenance contract can be cancelled by the customer or timeSensor AG, and can be terminated at any time in writing or by email, with a notice period of three months to the end of a month.
More Offers and Services from timeSensor AG
1. General
timeSensor AG has other offers and a wide range of services. In principle, the individual offers and agreements are valid for such additional offers and services. In addition, the present conditions apply.
2. Individual Programming by timeSensor AG
timeSensor AG endeavours to adapt the customer’s system to the customer’s ideal vision within the scope of what is technically possible. Programme adjustments usually consist of the work packages “Analysis/offering” and “Implementation, testing and acceptance”.
2.1 The Work Package: Analysis and Quote
On the occasion of the first work package, with analysis and initial tests, the basis for the offer is created. The customer is aware that timeSensor AG will usually spend several working hours to determine whether the desired adjustment/programming is fundamentally possible and how this can best be implemented. The costs and conditions for the first work package depend on the individual offer. After completion of the first work package, timeSensor AG will submit a binding offer to the customer. If the analysis shows that it is not possible to carry out the desired adjustment, or if the customer does not wish to continue, the costs for the customer are limited to this first work package.
2.2 The Work Package: Implementation, Test and Acceptance
If the customer decides for the work to be carried out by timeSensor AG, the implementation will then be carried out according to the individual offer.
2.3 Specification Booklet
The specification booklet specifies all the requirements (including functional and technical specifications, operating conditions, performance parameters, quality standards and interfaces) that the programme adjustments to be made by timeSensor AG must meet.
The customer is responsible for drawing up the specifications. timeSensor AG will advise the customer on the creation of the specifications. Additional costs caused by a defective or incomplete specification will be borne by the customer, provided these additional costs are not due to inadequate advice from timeSensor AG.
2.4 Schedule
timeSensor AG will carry out the adjustment in phases, if necessary. The subject and goals of the individual phases, as well as any agreed deadlines and milestones, will be communicated to the customer. If an appointment has been made and timeSensor AG is unable to meet an appointment for reasons for which it is responsible, it will take all necessary measures to ensure that the obligation to be fulfilled by it can be subsequently fulfilled as quickly as possible and the duration of the overrun is as short as possible.
If a milestone has been agreed and timeSensor AG is unable to meet a milestone for reasons for which it is responsible, the customer will set a reasonable grace period, which means that the subsequent dates and milestones can be postponed accordingly.
2.5 Customer’s Duty to Cooperate
With regard to the programme adjustment, the customer will duly and punctually fulfil the obligations to cooperate as agreed in the specification.
At its request, the customer will provide timeSensor AG with the information and documents required for the programme adjustment and allow access to its buildings and technical systems to the extent necessary. The customer will make the decisions incumbent on them in connection with the programme adjustment, within a reasonable period of time, and inform timeSensor AG.
The customer’s employees or consultants used as part of the programme adjustment must be qualified according to the requirements.
2.6 Acceptance Test
The object of the acceptance test by the customer is the program adaptation (“work product”) developed by timeSensor AG in accordance with the specifications. The purpose of each acceptance test is to check whether the work product meets the requirements agreed in the specification.
The customer will be notified in writing by timeSensor AG of the readiness for acceptance. The acceptance test is completed regardless of any defects that may occur. The customer can claim two working days for an acceptance test.
An acceptance test is considered to have been successfully completed if no significant defects are found. Insignificant defects do not prevent acceptance. Deviations from the requirements agreed in the specification that significantly impair or eliminate the intended use of the work product by the customer are considered to be significant defects.
All deviations from the requirements agreed in the specification that do not constitute significant defects are considered minor defects. Insignificant defects will be remedied by timeSensor AG at its own expense within 15 working days from the date of the acceptance report.
Significant defects must be rectified by timeSensor at its own expense within 10 working days from the date of the acceptance report.
2.7 Warranty
After acceptance of the work product, timeSensor AG guarantees that it will meet the requirements agreed in the specification for a period of six calendar months from the date of acceptance.
timeSensor AG will correct deviations from the specifications that the customer identifies and complains about during the warranty period within 20 working days of notification by the customer.
timeSensor AG is released from the warranty obligation to the extent that a deviation is due to circumstances for which it is not responsible.
2.8 Liability
Liability for direct or immediate as well as indirect damage is excluded to the extent permitted by law. This exclusion applies to both contractual and non-contractual or quasi-contractual claims. The liability of the parties for damage caused by intentional or grossly negligent behaviour, as well as claims from product liability, remains reserved.
2.9 Rights to the Work Product, Licence for the Customer
timeSensor AG integrates the work product into the source code of the timeSensor® application. All rights to the work product, in particular intellectual property rights such as copyrights, are transferred to timeSensor AG in full and exclusively without further ado and remain with timeSensor AG. The customer receives a limited, non-exclusive and non-transferable licence for the intended use of the work product within the framework of the order. The customer is prohibited from using, applying, duplicating, modifying, distributing or further developing the work product in any form, in whole or in part, for third parties, or passing it on to third parties, without the consent of timeSensor AG.
3. Use of Cloud Software Services
timeSensor AG supports the customer in using Cloud services. The customer is free to choose the provider of such Cloud services (“Cloud provider”). timeSensor AG is not obliged to accept a provider chosen by the customer.
3.1 timeSensor AG as Intermediary of the Customer’s Authorised Representatives
When using services from Cloud providers, timeSensor AG acts only as an intermediary of the customer’s authorised representatives. The contractual relationship always arises directly between the Cloud provider and the customer. The customer uses the service of the respective Cloud provider at their own risk and expense. The terms and conditions of the respective Cloud provider primarily apply to the customer in relation to the Cloud provider.
3.2 Responsibility of the Cloud provider
The Cloud provider alone is responsible in particular for the provision and technical operation, any service level agreements (SLA), elimination of failures/malfunctions, availability, etc. timeSensor AG does not bear any responsibility towards the customer in this regard. The liability of timeSensor AG is generally excluded to the extent permitted by law and limited to gross negligence or intention limited. The exclusion of liability applies to contractual, as well as non-contractual or quasi-contractual claims.
3.3 Responsibility of timeSensor AG
In principle, timeSensor AG only takes care of the registration and payment of the corresponding fees for the customer, which the customer has to reimburse to timeSensor AG. The customer is generally obliged to timeSensor AG to reimburse any expenses and uses that timeSensor AG has incurred in the context of the correct fulfilment of the contract. This applies in particular to expenses and uses vis-à-vis the Cloud provider.
4. General Provisions
4.1. Surcharges
Orders placed outside of the defined availability times will be carried out by timeSensor AG as far as possible and to the extent possible. The expenses are charged according to the contractually agreed regular hourly rates, plus the following surcharges:
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- Monday to Friday, from 17:00: +25 %
- Saturday: +50%
- Sunday: +100%
Final Provisions
All communications from timeSensor AG to the customer can be sent by e-mail to the e-mail address provided by the customer. If the customer changes their e-mail address, they must notify timeSensor AG of this in writing. The sending to the last known e-mail address is considered to be legally valid in any case.
These Terms and Conditions, including the software licence agreement, software maintenance contract and server maintenance contract, as well as the contract with the customer based thereon or the order confirmation from timeSensor AG contain all agreements made between the contracting parties. Verbal collateral agreements do not exist. Changes or additions to the contractual relationship must be in writing. This also applies to a departure from the same.
The contracts with customers based on these Terms and Conditions are exclusively subject to Swiss substantive law, to the exclusion of the conflict of laws. The exclusive place of jurisdiction for all disputes arising from and in connection with this software licence agreement is the respective registered office of timeSensor AG. However, timeSensor AG is entitled to prosecute the customer at their place of residence or place of business.
Should any provision of these Terms and Conditions be or become invalid or void, the validity of all other provisions shall not be affected. The ineffective or void provision is to be replaced by an effective one that comes as close as possible to the legal purpose of the ineffective or void provision.
timeSensor AG, Museumstrasse 47, CH-9004 St. Gallen, Switzerland
