Version 2.5 vom 22. Januar 2021.
Mediabeat GmbH (hereinafter “Company”) offers digital communication solutions. In addition to the services sold/offered through the cloud-based portals of the Company and/or its partners represented by the Company, this also includes also all software, hardware and other services related to the Company’s PSO (hereinafter „Offered Services“). All Mediabeat GmbH Offered Services are governed by the following terms and conditions. Special conditions additionally apply for certain Offered Services.
1. Conclusion of Contract
The contractual relationship shall begin with the Company’s acceptance of the Customer’s contractual declaration, but at the latest – as far as applicable – with the Company sending or activating the software.
2. Services Provided by Third Parties
Quoted prices are non-binding estimates. The price stipulated in the contract is subject to statutory sales tax. Packaging and office cost rates as well as travel rates shall be charged additionally. Hotline service and remote maintenance is not included in a flat rate and will be charged separately on a time and material basis. Hotline services and remote maintenance outside of regular business hours shall also be charged on a time and material basis. On-site user support will be charged on a time and material basis in ¼ hour increments and based on the Company’s rates valid at the time of Customer claiming the service, plus any travel costs and other expenses incurred. The remuneration for training and consulting days is based on the agreed fixed price. A day is understood to have eight hours and includes breaks. Additional time and additional costs will be remunerated separately. If, due to a special agreement, services are provided outside of the normal Monday-Friday business hours between 8am and 5pm, the Company is entitled to demand an additional surcharge of 25% per hour on top of the agreed hourly rate. On Saturdays, Sundays and public holidays at the place of performance, the overtime surcharge is 50%.
The Customer agrees to an electronic transmission of the invoice. Payments for hardware and other physical products are due upon receipt of invoice. The remuneration for recurring services is due as follows: 80% when placing the order, 10% before fulfillment/installation, 10” 5 days net. Company is not obliged to send the invoice electronically, and a change of invoice transmission method is possible at any time. Invoices sent by post do not lead to any additional costs.
5. Form of Declaration
Any declaration (e.g. contract termination, notice of defect) made by one party to the other party must be made in text form (e.g. postal transmission, email, etc.) in order to be effective.
6. Cooperation of the Customer
The Customer is obliged to carry out a complete data backup both prior to updating of the contractual software as well as before other measures (maintenance, supplementary performance, etc.) are carried out on the software. For the duration of the provision of services, the Customer provides the technical infrastructure (hardware, software, technical infrastructure, internal network) required by the Company to establish a functional condition and with sufficient capacities at his own expense, unless provided by the Company. Furthermore, in order to facilitate the execution of the contract, the Customer provides all necessary data or data records – in the form agreed between the parties in each case – and is responsible for its completeness and unrestricted usability. In the case of defect rectification, the Customer is obliged to provide all information and documents required for the removal of the defect.
7. User Support
User support is available via telephone (hotline) and internet (remote maintanance) at the times indicated on the Company’s website on a best effort basis. Specific maintenance contracts are offered to Customer on request, by which the SLA is agreed separately. Remote maintenance may include the installation and setup of a chargeable remote maintenance software license for the respective PC workstation.
8. Contract Duration and Termination
Contracts containing a contractual period are entered into for the period specified in the contract. These contracts are renewed for a further year if they are not terminated by a party at least three months prior to the end of the contractual year in written form.
9. Extent of Use and Granting of Rights
The Company grants the Customer the non-exclusive, perpetual, irrevocable, non-transferable and non-sublicensable right to use the services within the scope of the contract as set out therein. These rights include agreed interim results, training materials, and resources.
10. Software Updates and Maintenance
Program updates and maintenance of software developed by the Company include the updating of software with program enhancements and changes. As far as possible and necessary, a yearly release will take place. Only the most recent software version shall be maintained, such version being regularly offered by the Company with the conclusion of a software service contract. Warranty rights remain unaffected. For the installation of third party software the terms and conditions of the specific vendor apply, whereas Company acts as transmitter/agent between the Customer and the software manufacturer.
11. Purchase and Lease of Software
a. Usage Rights/Licenses
If the Company provides the Customer with software for purchase (as file/on data medium) or for lease (Software as a Service), the Customer is only entitled to use the software within the scope of the respective End User License Agreement (EULA) of the specific vendor/third party, which is to be agreed to prior to the software use. For Pixellot products please refer to the Pixellot SPTC here.
b. Initial Defects
As far as services under a lease agreement are provided, liability without fault is excluded.
c. Software Requirements
The Company does not warrant that its content is compatible with (third party) software of the Customer.
d. Changes to Provided Services
The Company is entitled to change or discontinue software functions when leasing software. The change or discontinuation is communicated to the Customer with a notice period of four weeks. If a function is discontinued without a replacement, the Company will recalculate the lease price for the remaining software functionality. If the Customer does not give extraordinary and immediate notice of termination within the four-week notice period, or if he continues to use the software during this period, the contract will continue under the amended terms communicated by the Company.
12. Data Backup
The customer is obliged to perform a complete data backup in regular intervals or assign this responsibility to Company. A continuous data backup is recommended whenever applications have generated records that cannot be restored or records that cannot be restored without great effort in the event of data loss without backup.
13. Damages for non-acceptance
If the contract cannot be fulfilled for reasons for which the Customer is accountable, the Customer is obliged to pay a lump sum of 15% of the order value. The Customer is free to prove lower damages.
The warranty period for hardware varies according to the specific vendor. As far as the company is liable pursuant to the below clause, the statutory limitation period shall apply.
The Company is fully liable for intent and gross negligence in accordance with the Swiss statutory provisions. In the event of damages resulting from injury to life, limb, or health, the Swiss Product Liability Act or fundamental contractual obligations, the Company is liable for every negligence. Fundamental contractual obligations are those whose fulfillment characterizes the contract and on which the customer may rely. Any further liability does not exist. In particular, the Company is not liable if the Customer fails to back up the data in violation of his obligations to cooperate. In the event of loss of data, the Company is only liable for the effort that would have been necessary to restore the data if the customer had properly backed up the data.
16. Payment Methods and SEPA Direct Debit
The bank information of the Company is as follows:
Accounts Mediabeat GmbH:
CHF IBAN CH20 0070 0110 0006 0378 5
The account is in CHF and accepts payments in any currency. Payments need to be issued according to the amounts due in the business contract between the parties / invoices sent to the customer. The company offers three different payment methods:
(a) Bank Transfers Switzerland
(b) Bank Transfer SEPA Direct Debit
In future, the Company may bill by credit card. Credit card statements are carried out by its future partner.
(c) Online purchases, credit card billing
If the Customer has granted the company a SEPA mandate, the Company will collect the invoice amount from the designated account at the earliest one working day after receipt of the invoice in the SEPA direct debit procedure. The direct debit payment with reference to the issued SEPA mandate will be announced to the customer 1 day prior to collection. The collection of recurring payments with equal amounts is announced once a year.
17. Retention of Title
The products shall remain the property of the Company until payment of all debts resulting from this contract has been made in full. Upon Customer’s request, the securities the Company is entitled to will be released insofar as their value surpasses all claims to be secured by more than 25%.
18. Data Protection
Responsible for the processing of data between the Company and its customers is Mediabeat GmbH, Im Schossacher 19, CH-8600 Dübendorf, provided that such data are not on systems or accessed by third parties. The Company processes personal data for the processing of orders as well as for its own marketing purposes to the extent permitted by law. The interests of a third party are not tracked with the processing of data. Receivers of the data are IT and service providers and delivery companies for the purpose of contract execution and credit bureaus for the purpose of credit checks in the event that the Company is obliged to advance payment (eg purchase on account, direct debit). There is no obligation for the Customer to provide the data, however data provision is necessary for the fulfillment of contractual obligations.
19. Offsetting and Assignment
The assignment of rights is not permitted to the Customer without the consent of the Company. Unless the claim results from the same contractual relationship, the Customer can offset effectively only with a claim that is undisputed or legally binding.
20. Force Majeure
For all unforeseeable events which are not attributable to the parties (strike, disruptions in operations and/or transportation, delivery malfunctions, natural phenomena, riots, war, etc.) the Company shall be released from its obligation to perform for the duration of the impediment.
21. Export Control
The conclusion of the contract is subject to the condition precedent that no impediments arise due to national or international regulations, in particular export control regulations and embargoes or other sanctions. Deliveries and services for the fulfillment of concluded contracts are also subject to the above provison.
The parties undertake to keep confidential all business and trade secrets they receive from the other party or which become known to them in fulfillment of the contract or which have been designated as confidential information. The information and documents may not be made available to third parties. The confidentiality obligation does not cover information and documents which were in the public domain and generally accessible at the time of disclosure, or which were already known to the receiving party at the time of disclosure, or which were rightly disclosed to the receiving party by a third party. Exempt hereof is the disclosure of information and documents to consultants of the parties, who are obliged to maintain confidentiality in accordance with current laws.
Swiss law shall apply, with the exclusion of the UN Convention of the International Sale of Goods (CISG). Applicable mandatory consumer protection laws shall remain unaffected by this choice of law. The exclusive place of jurisdiction is Zurich in Switzerland, insofar as applicable law does not state a different exclusive jurisdiction. Should individual provisions of these terms and conditions be invalid or incomplete, the validity of the other provisions remains in full force and effect.