General Terms and Conditions of Business of thuinformatik GmbH

Valid from 01. January 2017
1. Scope and application
1.1 In its capacity as a distributor, thuinformatik GmbH, hereinafter called «thuinformatik», offers its specialist retailers, resellers and customer hereinafter called «the customers», a broad range of products and services in the fields of IT, communications and technology.

1.2 The present General Terms and Conditions of Business, hereinafter called “GTC”, govern the rights and obligations in the relationship between thuinformatik and its customers, and replace the previous agreement. They apply to all products and services offered by thuinformatik. General terms and conditions of business of the customer shall not be applicable, even if the customer cites these in conjunction with the order.

1.3 Should any of the individual provisions of these GTC be or become ineffective or invalid, then this shall not affect the validity and effectiveness of the remaining provisions. In such an event the respective provision shall be replaced by a provision which approximates as closely as possible to the economic objective of the Parties.

1.4 thuinformatik reserves the right to amend or to supplement the GTC at any time. thuinformatik shall inform customers by suitable means in advance about changes to the GTC. In the event of significant contractual changes, the customer shall be entitled to terminate the business relationship in writing, whereby this shall not affect existing orders. If he fails to do so, then he shall be deemed to have accepted the amendments. The respective current GTC of thuinformatik may be accessed via the internet under www.thuinformatik.ch.

2. Special duties and obligations of the customer
2.1 In the event of goods being purchased, the customer shall perform the supply and delivery of the products to the end customers in his own name, on his own account and at his own risk. The customer is not entitled to act vis-à-vis end customers or other third parties in the name or as a representative of thuinformatik, and may furthermore not conclude any possible transactions or legal agreements on behalf of thuinformatik.

2.2 In the event of goods being purchased, the customer undertakes the responsibility to secure the authorisations from the respective manufacturers and suppliers which are required to resell the products, and to adhere to the provisions and conditions of the manufacturers/suppliers for the resale thereof. Should thuinformatik be the subject of legal proceedings brought by a manufacturer/supplier on the grounds that the customer has failed to adhere to such provisions and conditions, then the customer shall comprehensively indemnify thuinformatik.

2.3 The customer acknowledges the Code of Conduct of thuinformatik and undertakes to act correspondingly in conjunction with the cooperation with thuinformatik and its employees. The Code of Conduct may be accessed under www.thuinformatik.ch.

3. Minimum annual sales and terms and conditions for purchasing goods
3.1 The annual sales generated by the customer with thuinformatik must be at least CHF 10,000.00. The annual sales shall be calculated per calendar year. In the first year the calculation shall be performed at the end of the year pro rata temporis.

3.2 Depending upon the level of the annual sales planned by the customer and the terms and conditions of payment chosen by him, thuinformatik may agree for more favourable terms and conditions with the customer. However, thuinformatik reserves the right to amend the terms and conditions at any time, in particular if manufacturers or suppliers amend their own contractual terms and conditions.

4. Credit limits / Duty to provide information
4.1 thuinformatik shall stipulate the credit limit on the basis of the anticipated annual sales planned by the customer as well as his creditworthiness. thuinformatik may at any time demand securities from the customer equivalent to the credit limit.

4.2 In the event of signs of insolvency or other doubts about the creditworthiness of the customer, thuinformatik reserves the right to reduce the credit limit at any time and/or at its own discretion to make performances conditional upon advance payments or other securities. At the request of thuinformatik, the customer shall assign his claims against end customers arising out of the resale of the products delivered by thuinformatik to thuinformatik by way of payment (Art. 164ff. of the Swiss Code of Obligations – “OR”).

4.3 The customer undertakes to report to thuinformatik without delay any significant changes to his enterprise, e.g. concerning shareholders, legal form, business address as well as any possible financial problems which could jeopardise the existence of the business.

5. Orders and contractual conclusion
5.1 Offers made by thuinformatik are non-binding. By the same token, images, descriptions, dimensions, weights etc. shall be deemed to represent approximate values and do not constitute warranted characteristics.

5.2 The customer shall be bound by his orders placed by telephone, in writing or by electronic means. Insofar as the customer places the order electronically using the thuinformatik internet sales / information system (SIS), or causes this to be placed by thuinformatik using this system, then the “e-Business Terms and Conditions of Use” shall thuinformatik be applicable. The customer must report to thuinformatik without delay any possible inconsistencies between the content of the order placed by the customer and the delivery data recorded in the thuSIS.

5.3 A legal agreement shall be established with the consent of thuinformatik, which shall be reported to the customer under thuSIS “Order Tracking” together with an order confirmation, or at the latest at the time of the delivery to the customer. The legal agreement shall in under all circumstances be established subject to a positive creditworthiness check of the customer.

5.4 Order amendments or cancellations requested by the customer shall be subject to the written confirmation of thuinformatik. thuinformatik may pass costs which have already been incurred on to the customer.

6. Delivery and goods checks
6.1 When ordering goods, the customer must specify how he wishes the goods to be delivered. thuinformatik shall essentially deliver the ordered products ex warehouse. In this event, loading, insurance, export or customs formalities etc. shall be the responsibility of the customer. The customer may collect the goods or arrange for the goods to be collected from thuinformatik during business hours. Of relevance in each case is the respective current price list “Service Prices and Postage Options.”

6.2 At the request of the customer the goods shall be forwarded by thuinformatik or by a third party commissioned by thuinformatik. thuinformatik shall take out a transport insurance policy at the expense of the customer, which is already included in the forwarding charges. The maximum liability of thuinformatik for damages associated with the transport is:

- Fraglie recorded-delivery letter CHF 1'500.00
- Domestic recorded-delivery letter CHF 500.00
- Non-domestic recorded-delivery letter CHF 150.00

6.3. If the customer specifies in the order that he is planning to collect the goods from thuinformatik, then he must within 5 days from the invoice date either collect the goods or arrange for these to be collected. During this period thuinformatik shall hold the goods for safekeeping at the expense and at the risk of the customer. Once the deadline has passed, the customer shall be deemed to have defaulted on the collection. In this event thuinformatik shall be entitled either to store the goods or to arrange for these to be stored, to forward the goods to the customer or to withdraw from the Agreement. Storage and forwarding shall be performed at the risk and expense of the customer. thuinformatik shall charge the customer the effective storage and forwarding costs. The same arrangement shall apply to unforeseen interim storage, insofar as the goods are not collected by the recipient at the place of destination or insofar as these are held up for a reason for which the transporter is not responsible.

6.4. Delivery deadlines and delivery periods are not binding, insofar as it has not been expressly agreed otherwise in writing. The information shall be provided in good faith, although without warranty, and shall be subject to the punctual delivery of thuinformatik by the manufacturer/supplier. Should a delivery be delayed beyond a delivery deadline which thuinformatik expressly affirmed in writing, then the customer may declare thuinformatik to be in default after an additional period of at least 3 weeks imposed by the customer in writing, and following the fruitless expiry of a reasonable period of grace may then withdraw from the respective order. In this event thuinformatik shall be liable vis-à-vis the customer only for direct damages, if and to the extent that the default or the inability to perform the delivery is demonstrably attributable to a grossly negligent contractual breach on the part of thuinformatik.

6.5 As a rule, thuinformatik shall be entitled to make partial deliveries. The current pricelist “Service Prices and Postage Options” shall be applicable to pooled and scheduled deliveries.

6.6 In the event of delivery disruptions caused by force majeure and other unforeseen events beyond the control of thuinformatik, such as e.g. strike, lockout, material shortage, forwarding or business disruptions at the manufacturer or transport disruptions, thuinformatik shall be entitled to annul the order.

6.7 The customer must check the products immediately after delivery or collection in respect of completeness, correspondence with the delivery documents and defects, and must report any identifiable deviations and defects in writing without delay. Insofar as a complaint is not issued within 6 days following receipt of the products, the delivery shall be deemed to have been contractually compliant, unless the deviation was not identifiable notwithstanding thorough examination. Transport damage or missing quantities which are apparent at the time of delivery must furthermore be recorded on the receipt certificate of the haulage contractor.

6.8. In the event of delivery shortfalls, the customer shall be obliged to report this to thuinformatik within 10 days of this having been identified, and must keep the goods ready for collection by thuinformatik or by a third party commissioned by thuinformatik for at least 10 days. If the customer does not report a faulty delivery, or does not report this within the specified period, then he shall be deemed to have accepted the delivery and shall owe thuinformatik the corresponding purchase price.

7. Involvement of third parties
For the purpose of fulfilling its obligations, thuinformatik may engage auxiliaries and third parties (in particular subcontractors) or employees of these third parties.

8. Prices
8.1 Unless otherwise agreed, the prices of the products and services of thuinformatik are denominated in Swiss francs (CHF), excluding value added tax, customs paid and ex the distribution centre of thuinformatik. The prices may be amended at any time. The supplementary and forwarding terms and conditions are set out in the respective current price list “Service Prices and Postage Options”, which constitutes an integral part of these GTC. Unless otherwise agreed, accessories are not included in the price.

8.2 The customer shall be charged the prices valid at the time of the recording of the order. In the event of manufacturer/supplier price increases, higher public duties or higher prices attributable to currency fluctuations, thuinformatik shall reserve the right to pass these on to the customer in respect of goods which have not yet been delivered or for services which have not yet been rendered. On the other hand, thuinformatik shall correspondingly pass price cuts pledged by the manufacturer/supplier on to the customer. Of relevance in every instance are the prices specified by thuinformatik in the order confirmation.

8.3 When performing project-related transactions (e.g. SBO, OPG), thuinformatik shall grant the customer project prices which deviate from the price list, subject to the approval of the respective manufacturer. The customer shall be obliged to adhere to the respective terms and conditions imposed by the manufacturer on the project-related transaction. This shall apply in particular to proof of end-customer verification by the customer. If the manufacturer refuses to issue its approval, or if the customer contravenes the project terms and conditions of business, thuinformatik shall be entitled, irrespective of the assertion of further claims, to charge the customer the difference between the special price and the regular sales price applicable at the time of the order. thuinformatik reserves the right to collect this difference itself, or to assign the claim to the manufacturer.

9. Terms and conditions of payment
9.1 Unless otherwise agreed in writing, all thuinformatik invoices are due with immediate effect and must be paid net within 14 days of the invoice date. Once this payment period has expired, the customer shall automatically be deemed to be in default. thuinformatik may claim default interest amounting to 7%.

9.2 If the customer falls into arrears with his payments, thuinformatik shall be entitled without a specific reminder to make the rendering of further performances dependent upon the full payment of outstanding invoices and, at its own discretion, on payments in advance or other securities. thuinformatik shall be entitled to interrupt the e-Services of the customer following one reminder. All consequences of a cessation of performances of this nature shall be borne exclusively by the customer. In particular, thuinformatik shall be entitled to claim the reimbursement of all reminders, collections, legal and court costs as well as further damages. thuinformatik may demand an administrative charge of CHF 50.00 for a reminder.

9.3 All claims of thuinformatik, including those for which payment by instalments has been agreed, shall fall immediately due for payment if (a) the customer repeatedly fails to adhere to terms and conditions of payment, or (b) following the request of thuinformatik does not without delay provide the securities required to remove justified doubts on the part of thuinformatik about his liquidity/solvency, such as e.g. in the case of compulsory enforcements or other signs of payment difficulties on the part of the customer.

10. Assignment/setting-off/right of retention
10.1 In the absence of the written consent of thuinformatik, the customer shall not be entitled to assign any possible claims against thuinformatik or to set-off these against claims which thuinformatik has against the customer.

10.2 Any possible right of retention of the customer in respect to the property of thuinformatik is comprehensively excluded.

11. Reservation of title
11.1 The products delivered by thuinformatik shall – so long as these are under the control of the customer – remain the property of thuinformatik until thuinformatik has received the purchase price in full and in accordance with the contractual provisions. Up to this date thuinformatik shall thuinformatik be entitled, pursuant to Art. 715 of the Swiss Civil Code (“ZGB”), to record the reservation of title in the reservation of title register at the respective place of residence of the customer. The customer undertakes at the demand of thuinformatik to issue his written consent without delay to the recording of the reservation of title in all respects which are of relevance to the recording thereof (cf. Art. 4 Para. 4 of the Ordinance of the Federal Court).

11.2 So long as the purchase price has not been paid in full, the customer shall be obliged to maintain the products delivered by thuinformatik, to treat these with care and to insure these against all standard risks.

12. Return of products
12.1 The exchange as well as the return of products is essentially not possible. An exchange or a return shall be possible only on an exceptional basis and following consultation with thuinformatik. The customer must demand a “returns number” from thuinformatik within 20 days of the invoice date and before the respective product is sent back. This “returns number” shall be valid for 10 days. The products must be returned to thuinformatik or to the specified place of return within these 10 days in undamaged and unopened packaging, and must thuinformatik include a copy of the purchase receipt, on the account and at the risk of the customer. If prices have changed in the interim, thuinformatik shall credit the goods value on the basis of the lower price in form of a voucher. The customer shall be charged a flat-rate administrative fee for the handling of the return consignment in accordance with the price list.

12.2 thuinformatik reserves the right to return products to the customer which lack original packaging or whose original packaging is defective or damaged, or if products are returned without a returns number or are returned after the specified deadline. These returns shall be made at the expense and on the account of the customer. If thuinformatik accepts the return of the product at its own discretion, notwithstanding the lack of original packaging or notwithstanding defective or damaged original packaging, then thuinformatik shall in every instance reduce the purchase price when calculating the refund.

12.3 When returning defective products, the customer must in every case adhere to the set procedures for handling returns defined by thuinformatik or by the respective manufacturer/supplier. The products must be returned to the specified place of return within the specified deadline together with a copy of the purchase receipt as well as enclosing a detailed description of the fault/defect, on the account and at the risk of the customer. In the case of returns which do not include a description of the fault, thuinformatik may conduct a fault analysis at the expense of the customer (minimum workload: one hour).

13. Warranty and guarantee
13.1 Responsibility for the selection, the configuration, the deployment as well as the use of products and the results thereby achieved lies with the customer or with the purchaser of the products, i.e. with the endcustomer. The customer acknowledges that thuinformatik does not conduct incoming goods checks of the products delivered by manufacturers or suppliers.

13.2 In respect of products from third parties thuinformatik shall provide a warranty and be answerable only to the extent that the third party (e.g. manufacturer, licensor) is answerable vis-à-vis thuinformatik. The customer waives further warranty claims against thuinformatik and the third party. The only obligation of thuinformatik is to assign any possible own warranty and/or guarantee claims against the third party to the customer.

13.3 The customer acknowledges that on account of the respective applicable provisions of the manufacturer/supplier, as a rule the warranty shall be limited at their own choice to defect rectification, the delivery of fault-free replacement goods or a credit note. The replacement of parts, defect rectification or the delivery of fault-free replacement goods shall not establish any new warranty obligations. Defects which are covered by the warranty shall not entitle the customer to withdraw from the purchase or to declare that this has been rescinded.

13.4 The customer furthermore acknowledges that a defect shall in every case be deemed to exist only if this is reported to thuinformatik in detail in writing immediately following the discovery thereof and constitutes a relevant and reproducible defect.

13.5 The warranty shall be excluded in the event of defects attributable to one of the following causes: a) inadequate maintenance (unless thuinformatik contractually undertook to perform maintenance); b) failure to observe the operating or installation instructions; c) improper use of the products; d) use of unapproved parts and accessories; e) natural wear; f) improper handling or treatment; g) unauthorised interventions by the customer or third parties; h) external influences, in particular force majeure (e.g. failure of the electricity supply or air conditioning, natural hazards) as well as other reasons for which neither thuinformatik nor the manufacturer/supplier are answerable.

13.6 A guarantee constitutes a voluntary contractual performance by the manufacturer/supplier. The customer shall be invoiced in respect of guarantee performances which are not covered by the manufacturer/supplier, as well as for additional costs attributable to the customer when settling any possible warranty claims or guarantee performances. In the event of an absent or deficient fault description, the fault analysis shall be performed by thuinformatik at the expense of the customer.

14. Warranty of the customer
The customer undertakes to indemnify thuinformatik in respect of any possible liability and in respect of any possible damages, insofar as third parties assert claims against thuinformatik which are attributable to delivered products and data, the non-contractually-compliant utilisation of the products or services by the customer or third party.

15. Liability of thuinformatik
15.1 thuinformatik shall be liable only for direct damages up to the respective purchase price, and only if the customer demonstrates that these were caused wilfully or by a grossly negligent action or omission by thuinformatik. The transport liability of thuinformatik is limited in every case in accordance with Fig. 6.2.

15.2 In the case of services, thuinformatik shall be liable in each case for the diligent and professional rendering of its services. Defective contractual performances shall be subsequently rectified by thuinformatik.15.3 All further liability of thuinformatik, its auxiliary personnel and the third parties commissioned by thuinformatik for damages of all kinds and brought on any possible legal grounds shall be excluded to the greatest possible statutory extent. In particular, the customer shall under no circumstances be entitled to claim compensation for damages which were incurred not by the product itself, such as specifically production downtime, utilisation or data loss, loss of orders, loss of earnings as well as other indirect or consequential damages.

15.4 The products are intended for normal commercial or private utilisation in accordance with the operating instructions. The use thereof for security systems, nuclear power stations, military installations, medical equipment (in particular those with a life-support function) as well as for the manufacture of weapons is not intended. All possible liability for use in these fields is herewith rejected.

15.5 Further mandatory statutory liability provisions remain unaffected. 16. Proprietary rights and utilisation entitlement

16. Proprietary rights and utilisation entitlement
16.1 All proprietary rights to products or services are and shall remain the property of the manufacturer, supplier, thuinformatik or of the licensor.

16.2 thuinformatik and/or the licensor shall grant the customer and/or his endcustomers the right to use the performances agreed in the special legal agreements of the licensor.

16.3 If a third-party brings or asserts claims against the customer or against his end-customers on the grounds of a breach of a patent, copyright or other industrial property right by delivered products, then the customer shall inform thuinformatik in writing and without delay about any such breaches or asserted claims. thuinformatik shall forward this information to the supplier and/or manufacturer without delay, and shall demand that these take measures to settle the situation. Vis-à-vis thuinformatik the customer waives any possible warranty or liability claims.

17. Supplementary provisions for software
17.1 The utilisation and guarantee conditions concerning the software products, digital content, manuals and other documents delivered by thuinformatik shall be in accordance with the special provisions of the respective licensor which are contained in particular in the software licence agreement concluded between the software manufacturer and the user/end-customer. The same circumstances shall be applicable if thuinformatik makes digital content available electronically for downloading.

17.2 thuinformatik excludes any liability for open source software.

17.3 When reselling or otherwise forwarding the software products or digital content, the customer undertakes to impose the obligations arising out of the utilisation and guarantee conditions of the software manufacturer upon the respective acquirer together with the obligation to pass these on to any subsequent acquirer.

17.4 The customer shall establish suitable organisational measures to ensure that software products and digital content cannot be unlawfully copied. The customer undertakes to adhere to the corresponding instructions of the licensor.

18. Re-export
The re-export of products or software is subject to international export control provisions. In particular the Swiss (SECO, State Secretariat for Economic Affairs, Export Controls/Industrial Products Department), European and US export provisions must be observed. The customer undertakes to ensure that he is informed about the relevant foreign trade regulations and export control provisions, and if necessary to obtain the permits which may be required to export the products. Each further delivery of products by the customer to third parties (i.e. to endcustomers), with or without the knowledge of thuinformatik, shall thuinformatik be subject to the transfer of the export approval conditions. If claims are brought against thuinformatik on the grounds that the customer failed to obtain the export permits required for the products delivered by thuinformatik, then the customer must comprehensively indemnify thuinformatik in this respect.

19. Test products and approval
19.1 Under certain circumstances thuinformatik may place test goods (goods/software) at the disposal of the customer. The customer shall assess the test products during the agreed test period. This shall commence on the day after the complete delivery. Once the agreed test period has expired, the test product shall be deemed to have been approved if the customer does not declare that these have been rejected. In the event of a rejection, the customer shall be obliged to send the equipment back to thuinformatik undamaged and within the deadline specified by thuinformatik.

19.2 The deadline for the rejection shall be deemed to have been adhered to if the customer hands the declaration over to the post office on the final day of the test period.

20. Confidentiality
The customer undertakes to keep confidential the thuinformatik price list as well as other confidential data and information of a commercial nature, e.g. discounts, retailers’ margins, bonuses, configurations or other advance performances, and to use these only for the purpose of the contractual relationship with thuinformatik.

21. Data protection / manufacturer reporting
21.1. thuinformatik undertakes to adhere to the statutory data protection provisions. thuinformatik shall collect, save and process data only if this is necessary for the rendering of the performances, for the settlement and maintenance of the customer relationship, for insurance solutions as well as for invoicing purposes.

21.2 The customer agrees that in order to safeguard his own rights as well as to adhere to his own obligations, in particular including those pertaining to project-related business transactions (manufacturersupported end-customer business), thuinformatik shall have the right to provide detailed information about the quantities, articles, generated sales as well as the name and address of the customer and of the end-customer to manufacturers in Switzerland and abroad (manufacturer reporting).

21.3 The customer furthermore agrees that in conjunction with the contractual fulfilment, to monitor payment behaviour and collection as well as for the needs-based structuring and development of its services and products, thuinformatik may forward the data to third parties and may use this data within the thuinformatik Group. In this conjunction the customer thuinformatik agrees to the forwarding of data abroad, insofar as thuinformatik considers this to be necessary.

21.4 The customer is responsible for ensuring that corresponding data protection rules are established in the contractual relationship with the respective third parties and with his end-customers, and must inform the respective third parties about the processing, storage and forwarding of data as well as if necessary about the commissioned data processing by thuinformatik. The customer shall be responsible for obtaining the associated necessary approvals from the respective third parties, and for presenting these to thuinformatik if required.

22. Supplementary provisions for thuinformatik services
22.1 thuinformatik offers the customer a variety of different services, eservices, data and publications. In respect of the use of these services, e-services, data and publications, the customer accepts in addition to the present GTC the special “e-Business Terms and Conditions of Use” as well as the respective specific Service Conditions of thuinformatik. In the event of a contradiction, the special Terms and Conditions of Use and the specific Service Conditions shall have precedence over the present GTC.

22.2 The prices in accordance with the respective current price list of thuinformatik shall be applicable to the utilisation of services which incur charges. Services requested by the customer whose prices have not been specially agreed shall be charged in accordance with the effective costs pursuant to the respective valid standard rates of thuinformatik.

23. Copyright notice
23.1 These GTC are protected by copyright. In particular, the use of these GTC in unmodified as well as in amended form by other commercial enterprises is prohibited.

23.2 The use or exploitation of the name or logo of thuinformatik in any possible form by the customer shall be subject to the prior written consent of thuinformatik. Unless otherwise expressly stipulated, the application of these GTC cannot under any circumstances be interpreted to mean that the customer shall secure any possible rights to the intellectual property belonging to thuinformatik or for which thuinformatik owns a licence.

24. Assignment
The customer may assign the rights and/or obligations of these GTC only with the prior written consent of thuinformatik.

25. Applicable law / Place of jurisdiction
This Agreement is governed by Swiss law, whereby the UN Sales Convention shall be excluded. The exclusive place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationships is the court or courts with jurisdiction for Buelach (ZH). thuinformatik furthermore reserves the right to take legal action against the customer at ordinary places of jurisdiction.

26. Bank
26.1 Traditional Account
Zürcher Kantonalbank, Switzerland
IBAN#: CH59 0070 0110 0052 8798 9 BIC (SWIFT): ZKBKCHZZ80A

26.2 Bitcoin (BTC)
Wallet: 1A1jiqK1jcrpjJW9cMzYWB56KGpWjmzgbh