General Terms and Conditions
1. Scope
These General Terms and Conditions (GTC) govern the contractual relationships between SilentCreation GmbH, In der Wässeri 44, 8047 Zurich (hereinafter “Contractor”), and its customers (hereinafter “Customer”) for all services in the areas of software development and custom development, hosting on own servers, domain and DNS zone management, automation, audits, interim CTO/CDO mandates and consulting.
These GTC form part of every contract between the parties. Deviating or supplementary agreements must be in text form unless written form has been expressly agreed. The Customer's general terms and conditions apply only insofar as they have been expressly recognised in writing by the Contractor.
2. Provision of services
The Contractor provides the agreed services on the basis of the respective mandate, project or service contract with professional care. The type, scope and timeframe of the services are agreed individually.
Depending on the type of service, the provisions on mandate (Art. 394 et seq. CO) or on contracts for work and services (Art. 363 et seq. CO) apply. The Contractor is entitled to involve qualified third parties such as freelancers or partner companies in fulfilling its services. It remains responsible to the Customer for the quality of the services provided.
3. Hosting, domains and availability
Where the Contractor provides hosting on its own servers, domain management or DNS zone management, the following applies: The Contractor endeavours to ensure the highest possible availability of the systems, but does not owe any specific availability without an expressly agreed Service Level Agreement (SLA).
Binding availability, response and recovery times as well as maintenance windows are regulated in a separate SLA if desired. Planned maintenance work is announced to the Customer in advance where possible.
Domains are registered and managed in the name and for the account of the Customer or on behalf of the Customer. The Customer is responsible for complying with the registration conditions of the respective registries and for domain fees unless otherwise agreed.
4. Processing on behalf and data protection
Where the Contractor processes personal data of the Customer or of the Customer's customers in the course of providing services, in particular in hosting, domain and DNS management as well as software and automation development, it acts as a processor within the meaning of Art. 9 FADP.
The Customer remains the controller. The Contractor processes personal data exclusively on the Customer's instructions and for the contractually agreed purposes, ensures an appropriate level of data security and subjects any sub-processors to the same obligations. Their involvement requires the Customer's prior consent.
The details are regulated in a separate data processing agreement, which becomes part of the contract when personal data is processed.
5. Customer cooperation obligations
The Customer provides the Contractor with all information, documents and system access required for the provision of services in a timely manner and free of charge.
The Customer names a responsible contact person and reports disruptions, in particular outages of hosted systems, without delay. Delays or additional expenses caused by missing, late or faulty cooperation by the Customer are borne by the Customer.
6. Confidentiality
Both parties undertake to treat all confidential information obtained in the course of the collaboration as strictly confidential and not to disclose it to third parties. This includes in particular trade secrets, technical specifications, financial data and personal data.
This obligation continues beyond the end of the contractual relationship. Separate non-disclosure agreements (NDAs) are concluded separately on request.
7. Fees and payment terms
Remuneration is based on the individually agreed daily or hourly rates or as a fixed price for defined projects. Recurring services, for example hosting, domain management or maintenance, are invoiced periodically.
Expenses and disbursements are invoiced according to actual expenditure plus statutory value added tax. Invoices are due for payment net within 10 days from the invoice date.
In the event of late payment, the Contractor is entitled, after prior reminder, to suspend the provision of services and to charge default interest of 5% p.a.
8. Warranty
The Contractor warrants that the services provided are performed professionally and in accordance with the agreed specifications.
For individually developed software, the Contractor remedies defects reported within the agreed warranty period by rectification within a reasonable period. This requires that the Customer reports defects immediately after discovery in writing and in a comprehensible manner.
No warranty exists for defects attributable to specifications provided by the Customer, unauthorised interventions by the Customer or third parties, improper use or changes to the system environment.
To the extent permitted by law, the above warranty provisions take precedence over further statutory warranty rights.
9. Intellectual property
Software, concepts and documentation individually developed for the Customer may be used by the Customer to the agreed extent after full payment. Unless otherwise agreed, the Customer receives a non-exclusive right of use for its own business operations, unlimited in time and territory.
Pre-existing frameworks, libraries, tools, SaaS products and reusable components of SilentCreation GmbH remain the property of SilentCreation GmbH. The Customer receives only the rights of use required for the agreed purpose.
10. Liability
The Contractor is liable for damage caused by intentional or grossly negligent conduct. Liability for slight negligence is excluded to the extent permitted by law.
Liability for indirect damage, consequential damage, loss of profit and data loss is excluded to the extent permitted by law. The Customer is responsible for appropriate own data backup unless this has been expressly agreed as a service.
To the extent permitted by law, liability is limited to the amount of the respective mandate. Mandatory statutory liability, in particular under the Product Liability Act, remains reserved.
11. Contract duration and termination
The contract duration is governed by the individual agreement. Open-ended contracts may be terminated in writing by either party with 30 days' notice to the end of a month unless otherwise agreed.
The right to terminate without notice for good cause remains reserved. Services already provided must be remunerated in any case.
12. Data and documents after the end of the contract
After termination of the contractual relationship, the Contractor returns or deletes all data, documents and access credentials received from the Customer, depending on the Customer's instructions.
For hosted systems, the Contractor supports the Customer to an appropriate extent with data migration. The Contractor confirms complete return or deletion in writing on request. Statutory retention obligations remain reserved.
13. Force majeure
If the provision of services is rendered impossible or substantially impeded by force majeure, in particular natural disasters, pandemics, war, strikes, official orders, cyberattacks, outages of upstream providers or comparable events, the Contractor is released from its obligation to perform for the duration of the impairment.
If the impairment lasts longer than 30 days, either party may terminate the contract in writing.
14. Severability clause
Should individual provisions of these GTC be wholly or partially invalid, the validity of the remaining provisions remains unaffected.
The invalid provision shall be replaced by a legally permissible provision that comes closest to the economic purpose of the original provision.
15. Applicable law and place of jurisdiction
Swiss law applies exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC is Zurich, Switzerland.