1. Scope of validity
These General Terms and Conditions are valid for all Services (“Services”) and any related Deliverables (“Deliverables”) rendered by Demodia GmbH (“Demodia”) to Customer. Demodia will provide to Customer the Services and/or the related Deliverables that are described in the Proposal as attached to these General Terms and Conditions. The Proposal and any other annexes form an integral part of these General Terms and Conditions.
2. General
The contract shall be deemed to have been entered into upon receipt of the Customer’s written acknowledgement stating its acceptance of the Proposal.
Demodia will provide such as it deems necessary to perform the Services as specified in the Proposal. The manner and means used by Demodia to perform the Services desired by the Customer are in the sole discretion and control of Demodia and includes the possibility to contract 3rd party suppliers. Demodia shall use reasonable efforts to meet the schedules and times of performance for the Services as set forth in the Proposal.
3. Obligations of the Customer
Customer agrees to provide Demodia with such information, materials, and technology owned or controlled by Customer (the “Customer’s Technology”). as Demodia reasonably requires in order to perform the Services.. Customer hereby grants Demodia a royalty-free, non-exclusive, world-wide license to use the Customer’s Technology, and all Customer IP Rights in order for Demodia to perform the Services and to develop or prepare the Deliverables during the term of this Agreement. As between the parties, Customer shall retain all ownership rights in and to the Customer’s Technology, and Demodia shall gain no rights in or to the Customer’s Technology except for the license set forth above. Customer agrees to obtain for Demodia the right to use, for the purpose of performing the Services and preparing the Deliverables, such third party information, materials and technology, and the intellectual property rights (“IP Rights”) therein, as Demodia reasonably requires in order to perform the Services and/or prepare the Deliverables.
Customer and Demodia agree to co-operate in good faith to achieve completion of the Services in a timely and professional manner. Customer understands and agrees that Demodia’s provision of the Services may depend on the completion of certain Customer tasks or adherence to Customer schedules within Customer’s control; consequently the schedule for completion of the Services or any portion thereof may require adjustments or changes in the event such Customer tasks or schedules change or are modified or are not completed as planned and agreed. Demodia shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by Customer’s failure to complete in a timely manner, a Customer task or adhere to a Customer schedule.
4. Right to Perform Consulting Services for Others
Customer acknowledges that Demodia has extensive experience and expertise in a specific field. Subject to Demodia’s compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit Demodia from performing consulting or other services to any other entity in any industry. Customer agrees that, except as otherwise agreed in this Agreement, Demodia and its employees may provide consulting services similar in nature to the Services for any third parties both during and after the term of this Agreement.
5. Intellectual Property Rights
As used herein, the term “IP Rights” shall mean recognised protectable intellectual property such as: patents and applications, copyrights, trademarks, trade secrets, mask works, industrial design rights, rights of priority, know how, design flows, methodologies and any and all other legal rights protecting intangible proprietary information.
In providing the Services, Demodia may exercise and utilise certain of its own IP Rights. In addition Demodia may utilise certain of Customer’s Technology and IP Rights to perform the Services. Except as otherwise set forth herein, neither this Agreement (contract between Demodia and Customer), nor the provision of Services hereunder, shall give either Demodia or Customer any ownership interest in or rights to the IP Rights of the other party.
Between the parties, Customer shall retain all ownership rights to any and all innovations, inventions or developments (Innovations”), whether or not jointly conceived, and IP Rights arising therefrom, that derive directly from the Customer’s Technology, and/or the Customer IP Rights therein, provided by Customer to Demodia during the term of this Agreement. As between the parties, Demodia shall retain all ownership rights to all other Innovations, whether or not jointly conceived, and all IP Rights arising therefrom, including, but not limited to, those Innovations that (i) derive from Demodia’s proprietary information, materials and/or IP Rights, and/or (ii) relate to the business of Demodia. Customer shall have a royalty-free, non-exclusive license to use any Demodia-owned Innovations made during the performance of the Services to the extent necessary to permit Customer to use the Deliverables.
To perfect ownership of either party’s IP Rights, the other party agrees to assign to that party all rights they may have in those Innovations to be owned by the other party as provided herein, and to assist and cooperate with the party in all reasonable respects, and execute all documents and, subject to reasonable availability, give testimony and take all further acts reasonably necessary to acquire, transfer, maintain, and enforce such party’s IP Rights.
For design projects Demodia retains ownership of all draft materials not used in the final design. Unless otherwise stated, Demodia retains IP Rights for any master files used for production of the agreed Deliverables and these will not be released to Customer.
6. Service Fees and Expenses
For the Services and Deliverables provided by Demodia, Customer agrees to pay Demodia the fees set forth in the Proposal attached hereto plus any applicable sales or use taxes or other charges. In addition to the fees charged for the Services, Customer shall reimburse Demodia for all reasonable travel and other expenses as stipulated in Annex “Standard Rates and Expenses” attached hereto unless expressly stated otherwise in the Proposal.
7. Payment Terms
Demodia shall invoice Customer in principle on a monthly basis for fees for Services and expenses owing as laid out in the Proposal or in accordance with the following terms:
- For Project-based engagements, 50% of the contract value will be invoiced upon acceptance of the Proposal. On-going invoicing will occur for work performed in the month in arrears at the end of each month, or at services completion.
- For other Services and Consulting engagements, invoicing will occur for work performed during the month in arrears at the end of each month, or at services completion.
- For Subscription-based engagements, invoicing will occur, in advance, at the start of each month.
- Payments are due 15 days from the date of invoice.
All invoices shall be due and payable when invoiced, and shall be deemed overdue if they remain unpaid fifteen (15) days after the date of the invoice. Overdue amounts shall accrue interest at the rate of two (2)% per month or at the highest legal interest rate if less, and Demodia may, at its option suspend any on-going work until any overdue account is brought current.
If Customer’s procedures require that an invoice be submitted against a purchase order before payment can be made, Customer will be responsible for issuing such purchase order fifteen (15) days before the payment due date.
Method of payment should be by bank transfer.
8. Confidentiality
By virtue of this Agreement, each party hereto may disclose to the other party information that is confidential and otherwise proprietary. Unless governed by the terms of an existing or contemporaneously executed Non-Disclosure Agreement (“NDA”) the following terms shall apply: Subject to the exceptions listed below, a party’s “Confidential Information” shall be defined as information disclosed by the party to the other party under this Agreement and clearly marked or otherwise clearly designated as “confidential” or the equivalent. However, a party’s Confidential Information shall not include any information that:
- (a) is or becomes a part of the public domain through no act or omission of the other party;
- (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or
- (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or
- (d) is independently developed by the other party by employees or agents without access to the party’s Confidential Information.
Each party agrees, for the term of this and for five (5) years after its expiration or termination, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not being authorised by the disclosing party to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take reasonable steps to protect the other party’s Confidential Information to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent certain Confidential Information is required to be disclosed by the receiving party as a matter of law or by order of a court.
9. Limitation of Liability
Demodia and its related persons shall have no liability to Customer or any third party whether in contract, tort (including negligence) or otherwise for any of the following losses or damage (whether such losses or damages were foreseeable, known or otherwise):(i) loss of revenue, (ii) loss of actual or anticipated profits (including loss of profits on contracts), (iii) loss of the use of money, (iv) loss of anticipated savings, (v) loss of business, loss of opportunity, (vii) loss of goodwill, (viii) loss of reputation, (ix) loss or damage or corruption of data, or (x) any indirect or consequential loss or damage howsoever caused.
Demodia’s total liability arising out of or in connection with this Agreement shall in no event exceed the amount that is one hundred (100) % of the total amount of payments made by Customer to Demodia under such Proposal within the last six (6) months.
No action, regardless of form, arising out of this agreement may be brought by Demodia or Customer more than six (6) months after the cause of action has arisen.
10. Press Releases
Customer and Demodia shall be entitled to disclose the existence and nature of the relationship between the parties for publicity purposes, provided that such publicity does not criticise or demean the other party. Solely for this purpose, Customer and Demodia permit the other party to make reasonable use of its name and trademarks.
Customer also hereby agrees the use of Customer’s name and logo by Demodia for the purpose of promoting its own products and services on its website and other marketing materials.
11. Termination of this Agreement
This Agreement shall commence on the date of acceptance of the Proposal by the Customer (“Effective Date”) and, unless terminated earlier pursuant to the terms of this Agreement, shall continue in force unless terminated by the parties. This Agreement may be terminated by either party upon thirty (30) days’ prior written notice in the event the other party materially breaches or fails to perform any material term hereof and the breaching party fails to cure such breach within the thirty (30)-day period; notwithstanding the foregoing, the cure period for any failure of Customer to pay service fees and expenses due hereunder shall be ten (10) days from the date of receipt by Customer of any notice of breach relating thereto.
If Demodia terminates the Agreement for failure of Customer to pay any amounts owing to hereunder, the rights of Customer to use the Deliverables including any express or implied licenses which may have been granted herein shall immediately terminate.
12. Governing Law and Jurisdiction
This agreement shall be governed by Swiss substantive law and the place of jurisdiction for both Demodia and the Customer shall be St. Gallen.
