1. Application area
These General Terms and Conditions (GTC) govern the conclusion, content and execution of contracts between Screenimage Systems AG (Screenimage) and its customers (the customers or the client) and apply to all services and products of Screenimage.
These GTC shall form an integral part of any legal relationship between the client and Screenimage and any collateral agreements, amendments or supplements to these GTC shall only be binding if agreed in writing.
2. Conclusion of contract
Screenimage shall prepare a quotation for each client, which shall contain a description of services, the applicable prices and other essential aspects of the provision of services (quotation). These General Terms and Conditions shall form an integral part of this offer.
If the client agrees to the offer, he/she shall return a signed copy of the offer to Screenimage. The contractual relationship between Screenimage and the customer shall only come into existence upon receipt of the signed offer by Screenimage, whereby delivery is also possible by electronic means. The contractual relationship is subject to the individual agreements in the offer and these GTC.
Any general terms and conditions of the customer shall not apply. Services of Screenimage are in any case subject to these GTC.
3. Services of Screenimage
Screenimage provides its customers with various services, the content and scope of which are described conclusively in the offer. In particular, Screenimage may offer the following services to the customer (non-exhaustive list):
Delivery and Installation of Hardware: The sale, delivery and installation of Hardware may be performed by Screenimage or a subcontractor. Customer acknowledges that Screenimage may purchase hardware from third party suppliers and may use subcontractors for delivery and installation.
Software as a Service (SaaS): Screenimage grants the customer the technical possibility and authorization to access a centrally hosted software application of Screenimage and to use the functionalities of the software application within the scope of the contractual relationship with Screenimage. In this context, Screenimage provides the necessary server infrastructure so that the customer can access the software.
On-premise software: Screenimage provides the customer with software for installation on the customer’s own system. At the same time, Screenimage grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software.
Access to Data Feeds: Screenimage may provide Customer with access to third-party data feeds that enable information to be displayed on Customer’s screens. Customer acknowledges that Screenimage has no control over the quality, content, functionality, timeliness or accessibility of the feeds.
Provision of Other Services: Screenimage may provide additional services to Customer in the Quote, such as maintenance, support, training, graphics or other services. The specific scope of services shall be specified in the offer.
Screenimage is entitled to engage subcontractors or third-party suppliers to provide its services. Unless otherwise agreed in the offer, payment for these subcontractors shall be made through Screenimage.
4. cooperation of the customer
The customer shall ensure that the products and services which Screenimage provides or delivers to them are used in accordance with the law and the contract.
If the customer provides Screenimage with data, the customer shall ensure that such data is collected in compliance with the law and does not infringe any third party rights (e.g. copyrights). The customer shall indemnify Screenimage against all claims made by third parties in connection with data supplied by the customer. The customer is further obligated to immediately (i.e. within 5 working days) inspect the products and services obtained from Screenimage for defects. Any further obligations to cooperate (compliance with technical regulations, necessary preliminary work on the part of the customer for proper fulfillment of the contract, etc.) may result from the service description in the offer.
5. Prices and terms of payment
The prices of the services rendered by Screenimage and the payment terms shall be agreed upon in the offer. They are in Swiss francs and exclusive of the legally owed value added tax.
Screenimage may require advance payment for certain services. If the customer does not make the advance payments, Screenimage may terminate the legal relationship without notice and without compensation. The same provision shall apply in the event of a moratorium or the opening of bankruptcy proceedings, if the customers or the bankruptcy administration do not provide security for the payment of future invoices.
Any invoice amounts are payable without any deduction with a payment deadline of 14 days from the date of invoice. If the customer is in default of payment, Screenimage is entitled to block access to the software without releasing the customer from its contractual obligations. Upon expiration of the payment deadline, the customer is automatically in default without further reminder and shall pay default interest at a rate of 5% p.a.. In the event of default, Screenimage also has the right to terminate the legal relationship without notice or compensation.
6.1 Software as a Service (SaaS)
The customer receives the non-exclusive right, limited to the duration of the contractual relationship, to operate the software application by means of telecommunications and to access the functionalities associated with the software by means of a browser. The customer shall inform Screenimage of the number of software users and shall inform Screenimage of any employee changes or changes in software users.
Customer is obliged to change its passwords regularly, to keep them secret and to inform Screenimage immediately as soon as it becomes aware that a password is known to unauthorized third parties. In the latter case, Screenimage will block access to the Software and install new passwords and access codes.
The customer is not entitled to use the software beyond the contractually agreed extent or to make it accessible to third parties or to modify, copy, download, reconstruct, duplicate or publish and distribute the software in any form. In addition, the customer is not permitted to reproduce the software or parts thereof, to sell it or to make it available to third parties for a limited period of time.
The customer is further obligated to take all actions that can reasonably be expected of him to prevent the software of Screenimage from being used for illegal purposes or from being damaged.
For access to the software, the customer shall procure at its own expense the facilities it requires for such access (hardware, software). The customer shall secure its own systems in such a way that they do not become a source of danger for Screenimage or third parties and that neither the security, integrity nor availability of the infrastructure used by Screenimage for its services is impaired.
The customer shall ensure that it regularly backs up the data transmitted to Screenimage or the Software so that, in the event of loss of data and information, its reconstruction remains guaranteed.
6.2 On-Premise Software
If agreed in the offer, the customer shall receive the Software from Screenimage for installation on its own system. The Software may only be used on a single computer at any time. Use of the Software means that the Software is loaded either in a temporary memory (e.g. RAM) of a computer or on a permanent memory (e.g. hard disk, CD-ROM) of Customer.
In case the Customer purchases multiple licenses for the Software, the Customer may only ever use a maximum number of copies equal to the number of licenses purchased by the Customer. If the expected number of players exceeds the number of licenses purchased, it must be ensured that a license is purchased for each player.
The non-exclusive, non-transferable and non-sublicensable license is granted to the customer only for the duration of the contractual relationship. After termination of the contractual relationship, he is obliged to destroy the software and all access authorizations and to no longer use the software.
6.3 Update-, Maintenance und Support-Leistungen
The customer shall be provided with both major and minor releases of the software free of charge during the term of the contract. Screenimage shall ensure that reproducible program errors that restrict use or performance are corrected as far as possible.
The customer has the right to use any software updates in accordance with the provisions of these GTC. If the customer’s software version is replaced by a new version as a result of update, maintenance and support services, the rights of use granted to the customer for the previous version shall expire at the time the customer starts using the new version. The provisions of these GTC shall also apply to the new version and the customer shall confirm that it has deleted the previous version, including any backup copies.
Support and maintenance services are provided by Screenimage only for the latest available version of the Software. Support and maintenance for previous versions will be provided for a period of twelve months from the date of notification of the availability of a successor version. Thereafter, no support or maintenance services will be provided. In order for Screenimage to provide software support, the customer must ensure that at least one person is on site to perform any hardware manipulations or adjustments.
Within the scope of the following conditions, Screenimage will support the customer in the event of disruptions to the contractual use of the software and in the event of operating problems. Hardware maintenance & support (including operating system) is the sole responsibility of the customer.
If no other agreement has been made, the following processing times apply to the types of support described below: Monday to Friday from 09:00 – 12:00 and from 14:00 – 17:00. CEST (Central European Summer Time) applies in summer, i.e. from the last weekend in March to the last weekend in October, and CET (Central European Time) applies in winter, i.e. from the last weekend in October to the last weekend in March.
National holidays and holidays applicable in the Canton of Lucerne are excluded.
- Services E-mail support: E-mail inquiries from customers are answered by Screenimage within the scope of operational and personnel possibilities. The facts described by the customer via e-mail are analyzed and the problem is solved as quickly as possible by sending precise instructions for action to the customer via e-mail. The maximum response time is 24 hours.
- Services Telephone Hotline Support: Telephone inquiries are answered by Screenimage within the scope of operational and personnel possibilities. The facts described by the customer via telephone are analyzed and the problem is solved as quickly as possible with precise instructions for action via telephone and/or e-mail to the customer. As a rule, a response is given within 4 hours. However, the maximum response time is 24 hours.
- Remote support services: Remote support requests are answered by Screenimage within the limits of its operational and human resources. The issue described by the customer will be analyzed and the problem will be solved as soon as possible by remote access to the customer’s system. The customer ensures that there is a proper remote access. The maximum response time is 24 hours.
- On-site support services: Requests for on-site support services are answered by Screenimage within the scope of operational and personnel possibilities. The situation described will be analyzed and the problem – if it cannot be solved by remote access to the customer’s system – will be solved as quickly as possible by on-site support directly on the customer’s system. Customer will ensure that Screenimage has unimpeded access to Customer’s physical system. The maximum response time is 24 hours.
In addition to the above standard support services, Screenimage may provide additional services (such as conducting training and technical workshops, installations or individual customizations of the software) against additional compensation based on time and effort (according to the agreed hourly rates) and after signing a separate agreement. The corresponding services will be offered to the customer in advance. If the customer purchases update, support or maintenance services, the customer shall ensure that a contact person and a deputy are designated and that all support requests and error messages are reported to Screenimage via these persons. In addition, the customer shall create the conditions for Screenimage to be able to provide its services without hindrance. In doing so, the customer shall provide the working environment required for the contractual use of the products provided at its own expense.
Delivery and Installation of Hardware
Screenimage assigns to the customer all warranty rights (manufacturer’s warranty) with respect to the delivered hardware vis-à-vis the sub-suppliers and supports the customer in asserting any warranty rights vis-à-vis the sub-supplier.
All further warranty rights against Screenimage and in particular the statutory warranty provisions are excluded. The customer is aware that it must proceed directly against the sub-supplier in the event of any warranty claims.
7.2 Software as a Service (SaaS)
During the term of the contract, Screenimage warrants the functionality of the Software in accordance with the program description provided and aims to ensure access to the Software – to the extent possible and feasible by economically reasonable means – on seven days of the week and during 24 hours of the day without interruption. Screenimage shall keep its own systems at an appropriate and up-to-date technical level and shall perform maintenance and other work on the central server, if possible, not during normal business hours. It shall inform the customer as soon as possible of any foreseeable interruptions in service. In the event of unforeseeable service interruptions, Screenimage shall inform its customers as soon as possible and shall attempt to remedy the disruption as soon as possible within the scope of its possibilities.
Screenimage does not warrant that the Software is suitable for the customer’s purposes or that it is compatible with software already available at the customer’s site.
7.3 On-Premise Software
Screenimage warrants the functionality of the Software in accordance with the program description provided for a period of twelve months from the date of sale of the Software. Any defects must be reported immediately (within five working days) and the customer’s warranty rights are limited to the right to rectification and to delivery of a replacement product. Conversion or reduction is excluded.
Screenimage does not warrant that the software is suitable for the customer’s purposes and compatible with software already existing at the customer.
In all other respects, all warranty rights of the customer with respect to the Software shall be excluded.
7.4 Access to Data Display Feeds
Screenimage only provides the customer with access to the data display feeds. It has no influence on the quality, functionality and technical accessibility of the feed. The information in the feed is provided by a third party provider who may change the content and structure of the feed at any time and also ensures the functionality and timeliness.
Screenimage therefore does not warrant the functionality, timeliness, content, accessibility and or other characteristics of the Feed. Screenimage’s warranty is completely excluded.
7.5 Other services
For all other services, Screenimage warrants careful performance of the services. Any defects must be notified immediately (within five working days) and the customer may request Screenimage to remedy the defect free of charge within a reasonable period of time.
The right to rectification shall expire within one year from the date of performance of the relevant act and shall require immediate notification of the defect. With the exception of the aforementioned defect rights, Screenimage completely excludes the warranty of quality and title.
Screenimage shall be liable for any damage caused by it or by a third party commissioned by it arising from the contractual relationship, provided that it is proven that Screenimage or the third party commissioned by it is at fault. Screenimage’s liability is excluded for slight and medium negligence. In addition, Screenimage’s liability is capped. The upper limit corresponds to the last annual turnover (i.e. the turnover of the last calendar year before the act triggering the liability) of the customer with Screenimage.
Excluded from this limitation of liability is the liability for personal injury and property damage. In all other respects, Screenimage’s liability is completely excluded.
The customer agrees to indemnify and hold Screenimage harmless from and against any and all third party claims based on or arising out of the customer’s unlawful use of the products provided by Screenimage. If the customer recognizes or must recognize that such an infringement is imminent, the customer has the obligation to notify Screenimage of this immediately.
The software provided to the customer as well as documents belonging to the software are protected by copyright. It is prohibited to decompile, reverse assemble or otherwise convert the software into generally readable form, as well as to modify, adapt, translate, rent, lease, lend, pass on or manufacture software or parts of the software as well as products derived therefrom. The copyright refers in particular to the program code, the documentation, the appearance, the structure and organization of the program files, the program name, the logos and other forms of representation within the software. Any copying, use, transfer, modification or reproduction of the contents of the software or other works protected by copyright that have not been expressly authorized is prohibited.
10. Term of Contract and Termination
If a continuing obligation is concluded between the customer and Screenimage, it shall last for an indefinite period of time. It may be terminated by either party with three months’ notice to the end of a contract year, unless the offer provides otherwise (e.g. a minimum contract term or an extended notice period). The contract year corresponds to the period indicated on the offer or invoices.
If a one-time service provision is agreed between the customer and Screenimage (e.g. one-time sale of hardware or other products), an order can no longer be cancelled after the contractual relationship has come into existence (see section 2 above). The customer must bear these costs in any case.
If the legal relationship between the customer and Screenimage can be terminated by law without notice, the customer undertakes to compensate Screenimage in full for the work performed up to the date of termination. Any product orders shall be fulfilled by Screenimage in any case and shall be paid in full by the client in any case.
11. general provisions
11.1 Changes to the contract
Screenimage shall notify the customer of changes to these GTC as well as changes to the service descriptions or prices in a timely manner so that the legal relationship with Screenimage can be terminated within the notice period if the customer does not agree with the change. If the customer does not terminate the legal relationship despite a change in the general conditions, the change shall be deemed approved by the customer.
11.2 Assignment, transfer and pledge
Rights and obligations arising from the contractual relationship as well as the contract as a whole may not be assigned, transferred or pledged, in whole or in part, to third parties without the prior written consent of the contractual partner.
11.3 Prohibition of set-off
Customers are prohibited from setting off any counterclaims against claims of Screenimage.
11.4 Partial invalidity
Should individual provisions or parts of these contractual terms and conditions prove to be null and void or ineffective, the validity of the remainder of the contract concluded between the parties on the basis of these contractual terms and conditions shall not be affected thereby. In such a case, the parties shall adapt the contract in such a way that the purpose intended by the void or ineffective part is achieved as far as possible.
11.5 Applicable law, place of jurisdiction
The contract concluded between the parties on the basis of these GTC shall be governed exclusively by Swiss law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG). The exclusive place of jurisdiction is the registered office of Screenimage. Screenimage may also initiate legal action against the customer at the customer’s registered office or place of residence.
Screenimage Systems AG