Terms and Conditions and Service Level Agreement of cabtus.com AG
1. Scopethe following General Terms and Conditions (T&C) and Service-Level-Agreement (SLA) are basis for all acts of legal significance between cabtus.com Ltd (thereafter “cabtus”) and its clients (both referred to as “parties”). All amendments, changes and removals of clauses other than defined in these T&C/SLA require written approval by both parties.
2. Contract negotiationsThe parties remain free to leave negotiations without financial obligations before signature of a legal contract them. However, the parties agree to return all documents to the issuing party and to keep informations obtained in a confidential manner.
3. Scope and place of service performanceThe contract is the relevant basis for the scope of works and the place of performance. Such definitions are to be taken from the quotation issued by cabtus in case no separate contract was signed. Any works and services not explicitly mentioned are not part of the scope to be provided, for example documentation, customising, installation, commissioning, training and operations support. cabtus will provide its services at its domicile in case the location was neither defined nor can it be derived from the nature of business.
4. Project organisationThe client designates a responsible manager. cabtus will assign a contact person and project manager, responsible for the services to be provided by cabtus. The project manager can delegate works to other employees, as well to third parties. Both parties can suggest changes at any time. cabtus checks the feasibility and the impact on prices and milestones. Changes to the scope of supply require mutual agreement from both parties. If the parties fail to agree, the project continues unchanged.
5. Client contributionThe client has to fulfil and ensure all pre-conditions (staff, organisation and technical) required by cabtus in order to be able to provide its services. The client provides all, correct and complete information needed to achieve the task. The client further informs about technical, legal and administrative conditions to be considered. The client hands over respective documentation and electronic data to cabtus. Both remain property of the client and will be only used in relation to the contractual services and handed back to the client upon request and after completion of the respective task.
6. Milestones and deadlinesMilestones and deadlines are only binding when they are defined in the offer, the project schedule or the written agreement. Milestones and deadlines are binding for both parties. They are reasonably extended in the following cases: The required information comes in with delay or the client decides to change it sub-sequently; the client is delayed with his works or other contractual obligations, notably payments to be made; obstacles arise, which are not in within the responsibility of one of either party, such as natural disasters, accidents and medical conditions, loss of key personnel, late or faulty supplies, as well as official actions. If one party is in delay, it is given a reasonable grace period to fulfil the task retrospectively. The non-defaulting party has the right to declare breach and cancel the contract unilaterally if the task cannot be accomplished within the grace period and another delay cannot be reasonably accepted. If one party is verifiably responsible for the delay, the non-defaulting party has the right on actual damages, regardless of achievement or cancellation of the respective task. The damages are limited by, for the client, the already paid portion of the project and, for cabtus, by the not yet paid part of the project.
7. Quality and Warrantycabtus guarantees to apply the necessary care in order to achieve the contractual quality of its products and services. cabtus will only warrant applicability and suitability of its services if agreed or if naturally given by the nature of business. Pre-condition to provide guarantees is a complete information by the client about the usage of the products or services. In case of severe supply problems by assigned third parties and based on problems beyond control of cabtus (e.g. problems with the original manufacturer), cabtus will have the right to cancel the contract without obligation to pay damages.
8. Project-Sign-OffThe project sign off certifies the complete and free-of-faults provision of the contractual products and services by cabtus. The sign-off procedure is in the responsibility of the client, unless it has been agreed otherwise. Points to resolve have to be stated in the sign-off protocol. The client has to inform cabtus immediately about missing points. cabtus will correct the points as quickly as possible in order to achieve all contractual obligations. The client can refuse to sign off the project only in case he cannot make use of the provided products or services, as initially offered.
9. Defects and their resultsThe client cannot claim damages for insignificant defects. They are considered insignificant if the usage of the provided products and services is not significantly affected. In case of significant defects, the client will have to grant a reasonable grace period for correction or replacement. The length of the grace periods are according to the law and remain uninterrupted, regardless of defect recognition or elimination. The client can ask for a reasonable price reduction in case the defect cannot be eliminated. A cancellation of the contract is only possible if the products and services are reasonably unacceptable. If cabtus is verifiably responsible for the defect, the client has the right on actual damages, regardless of defect elimination, price reduction or contract cancellation. The right on damages is capped at ten percent of the deficient part of the contract. Claims on non-realised profits, financial or economic losses are totally excluded.
10. Liabilitiescabtus is liable, within its obligations defined by the third party insurance, for damages due to actions, verifiably caused by cabtus. Other liabilities, especially in relation to actions by auxiliary parties, are excluded.
11. Prices / payment termsThe prices to be paid are defined in the offer, the contract or possibly tariff schedules. If nothing else is stipulated, prices are net of VAT and travel expenses. Invoices are to be paid within 20 days. License and service fees (SLA) have to be paid in advance for a minimum period of one month. Clients defaulting in payment will be advised once before all services are interrupted by cabtus without compensation. The client is not allowed to offset his claims with the payment that is due.
12. Work results and softwareThe client can use the work results, software, electronic data and documentation within the framework of the agreed usage and license conditions (according to SLA). The client is limited to his own use of the system if such conditions are missing and cannot be derived from the nature of business. Selling, broadcasting, duplicating, extending and changing of the products and services are not allowed. The intellectual property rights and the rights of use of the work results and software remain with cabtus, independently from protectability and independently from possible changes made by or for the client or third parties. If independent intellectual property rights (patents, copyrights) arise out of a joint development, where cabtus was involved (co-invention, co-authorship) or if cabtus agrees to cede such rights, then cabtus is entitle to receive additional, adequate compensation. Such compensation is generally to be paid out as a lump-sum. If the parties fail to agree on the amount of the lump-sum, it is to be set by an independent arbitrator. In any case, all work of results and software carry the annotation “powered by cabtus”.
13. Services by cabtus: Service Level Agreement (SLA)cabtus offers to its clients services and products in the field of application service providing (ASP) and Software-as-a-Service (SaaS). These services are provided within the framework set by the following conditions, forming a Service-Level-Agreement (SLA).
14. SLA: Availabilitycabtus guarantees 99.8% availability of the cabtus system. The availability is given, when server, websites and APIs are reachable, measured with independent third-party monitoring tools, designated by cabtus. Maximum continuous downtime: 2 hours. Excluded from this guarantee is the breakdown of other systems, connections and devices used or designated by the client. The following pro-active measures are put into place in order to increase security and availability:
- Daily backup: Operating systems, applications and data
- SQL Dump on harddisk (restore of database inconsistencies)
- Real-Time Monitoring with notification to the engineer on duty
- Redundant locations and & infrastructure setup
- Firewall and host-based intrusion detection
- Up-to-date anti-virus software
15. SLA: Hotlinecabtus clients have access to a special hotline as part of the SLA and within defined reaction times. The hotline makes sure that the concern is forwarded directly and without unnecessary delay to the contact person in charge. Any fault report receives a reference number (ticket), serving as reference for the whole process.
16. SLA: Software updates and maintenanceScheduled software updates and maintenance windows are normally announced with 5 days notice, in any case with a minimum of 48 hours:
- Max. 1 update per month
- Max. downtime of 1 hour
17. SLA: client notificationMaintenance works following short-term incidents (e.g. viruses, patches, attacks) can also be performed during working days (Monday - Friday). In case of a problem, cabtus informs its clients via e-mail within 45 minutes about the cause of the interruption and its consequences.
18. SLA: Incident categoriesThe reaction time for the fault repair is depending on the incident category:
- Cat. 1 / Reaction time 2 hours / Critical incident: Operation is not possible in the long-term
- Cat. 2 / Reaction time 1 working day / Significant incident: Operation may be affected but still possible
- Cat. 3 / Reaction time 3 working days / Insignificant incident: Operation is not affected
- Cat. 1 / by phone (hotline number)
- Cat. 2 / by e-mail or by phone (hotline number)
- Cat. 3 / only by e-mail
19. SLA: Contract duration and terminationThe SLA is a binding contract of unlimited duration, as from project sign-off by the client. The SLA can be terminated by both parties with one month notice period at the end of each month.
20. SLA: Service interruptioncabtus can interrupt its services temporarily or permanently, if the client defaults to pay for the services or violates provisions of the General Terms & Conditions (T&C) of cabtus. The client remains bound by the SLA and the T&C and keeps its obligations even after interruption of services.
21. Client obligationsThe client undertakes to ensure to use the system appropriately and according to the instructions given. The client is responsible for the content set up, transmitted or offered, either by him or by his customers. The client agrees to hold cabtus harmless of claims and damages arising out of violations of intellectual property rights of third parties, e.g. due to the improper use of trademarks and violation of copyrights. The client is responsible to handle electronic keys and other electronic data deserving protection (e.g. logins and passwords) very restrictively and safe from unauthorised access. The client takes all measures, also in relation to his system in place, to avoid unauthorised access and intrusion into the cabtus system, propagation of viruses and other malware and to comply with the legal provisions.
22. No-robots clauseThe cabtus system given at disposition to the client, is designed to be used by humans. The client is not allowed to make changes or software connections to the system and to use software or scripts that interact with the cabtus system, unless approved by cabtus in writing.
23. DiscretionBoth parties will not disclose any information about the other party’s business to third parties that is not commonly known or part of the public domain. Furthermore, both parties will take the necessary measures to avoid that third parties gain access to such information. The parties transfer the obligation to confidentiality to their employees, partners and assigned subcontractors who may gain knowledge of the confidential information. The obligation to confidentiality remains as long as the concerned party may have a real interest in keeping the information confidential.
24. Data protection and backupPersonal data, particularly data about companies, customers and employees can be processes as along as required to fulfil the contactual task. The parties undertake all necessary technical and organisation measures to comply with the legal provisions concerning data secrecy. Each party is responsible for its own secure data backups of its own data and data received in relation to the contractual tasks. The client will make sure to backup its data before a cabtus employee will be given access to it.
25. Enticement of employeesClients will refrain from enticing cabtus employees away, during the project period and until one year after project sign-off, neither for its own use nor for the benefit of third parties. Clients offering employment or asking a cabtus employees to offer services without written approval by cabtus are liable to pay CHF 20,000 indemnifications.
26. Means of communicationThe parties communicate orally, in writing and via electronic data communication means. Mail, protocols, drawings, plans, telefax and e-mail or any form providing evidence as text or picture are considered written communication. Original written signatures by the respective person or a qualified electronic signature are accepted as signatures.
27. Salvatorian clauseIf any of these Terms and Conditions (T&C) and Service Level Agreement (SLA) are determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which these provisions are intended to be effective, then to the extent and within the jurisdiction which that provision is illegal, invalid or unenforceable, it shall be severed and deleted from this clause and the remaining provisions shall survive, remain in full force and effect and continue to be binding and enforceable.
28. Court of jurisdictionThe contract between the client and cabtus is exclusively subject to Swiss Law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Place of jurisdiction is Zurich. cabtus shall also be entitled to sue at the Court competent for client’s registered office.
Zurich, January 1st - 2012