Terms & Conditions
Agreement on Provision of Ad-Hoc Support Services
Please read the terms and conditions of this Agreement on provision of Ad-Hoc Support Services (“Agreement”) before you opt using the Services. This is a legally binding contract entered into by and between KompiTech GmbH, a company incorporated in Switzerland, ID number CHE-272.063.992, with its registered office at Thurgauerstrasse 40, Zürich, Post Code 8050, Switzerland (“KompiTech”) and the entity agreeing to those terms (“Customer”). This Agreement is effective on the day when both of the following conditions are fulfilled: (i) the Customer assents electronically hereto and (ii) the Customer’s intention to conclude this Agreement is confirmed by KompiTech as indicated in clause 1.2 hereof (“Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to the terms and conditions hereof; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not agree with the terms and conditions hereof or if you do not have the legal authority to bind Customer, please do not click the “I Accept” button below. This Agreement governs Customer’s access and use of the Services and is effective as of the Effective Date.
- Subscription to one of the Platform Services packages – ‘Basic’, ‘Business’ or ‘Corporate’ as offered by KompiTech (“Package”) provides the Customer with access and a non-exclusive, time limited right to use KompiTech’s ticketing tool (platform) called BLiTS (“Platform”), which enables the Customer to submit individual requests for provision of IT Services according to its needs.
- Once the Customer makes a selection of the Package and the Subscription Plan that is the most convenient for its needs, KompiTech validates such Customer’s request and when approved, the Customer will be provided with a confirmation summarizing all the details.
- Starting from the Effective Date KompiTech shall: (i) assure Customer’s access to the Platform and proper functionality of the Platform (“Platform Services”) and (ii) provide the Customer with IT Services that the Customer seeks as defined in its requests for provision of IT Services submitted to the Platform (“IT Services”) (Platform Services and IT Services jointly the “Services”).
- When seeking provision of IT Services, the Customer shall provide the description, urgency as well as other details such as its location (or as the case may be any Customer’s site where IT Services are to be provided) that are necessary for provision of IT Services in each of its requests for provision of IT Services submitted to the Platform (“Ticket”).
- Any Ticket submitted by the Customer must be confirmed by KompiTech. Once the Ticket has been submitted and confirmed by KompiTech it becomes binding and cannot be recalled. Any changes to such Ticket are allowed based on mutual agreement with KompiTech’s Service Desk. Should the Ticket changes mentioned in the preceding sentence have any direct or indirect adverse impact on the Service Levels, the Customer accepts that KompiTech cannot guarantee meeting respective levels in such case and it shall not be deemed a breach hereof.
- KompiTech shall assure the following IT Services Service Levels (“Service Levels”). In no case KompiTech shall be held liable for not achieving the Service Levels if not achieving these is caused by the Customer’s acts and/or non-fulfilment of Customer’s obligations hereunder.
- The Customer hereby accepts that KompiTech may use subcontractors, in whole or in part, on its sole discretion when performing the Services, provided that the subcontracting party remains fully liable for all such subcontracted obligations and accepts full liability as between the Parties for the actions and/or inactions of its subcontractors as if such actions and/or inactions were its own.
- Fees and Payment
- There is a fixed fee for the Platform Services (“Platform Services Fee”), which is charged monthly or as a one off payment annually (“Subscription Plan”). The exact amount of the Platform Services Fee and charging of this fee depends on the selection of the Package and Subscription Plan made by the Customer.
- Besides the Platform Services Fee, the Customer is also obliged to pay fees for requested IT Services (“IT Services Fee”) that is payable monthly. The exact amount depends on Customer’s choice as the Platform offers certain price range depending mainly on the urgency of the Ticket. The IT Services Fee is inclusive of all required travel and expenses.
- Based on the Customer’s Package and Subscription Plan, KompiTech shall invoice the Customer annually or monthly for the Platform Services and monthly for the IT Services which have been properly performed in accordance with the Tickets submitted and resolved in the respective month. The data pertinent Customer’s activity within the Platform shall serve as the basis for invoicing.
- The Customer shall make payments of all undisputed invoices within 30 days of receipt of such invoices.
- The currency of invoices shall be Euro.
- The payments are to be made exclusively into the bank account stated on the invoice.
- All fees under this Agreement are exclusive of the applicable taxes (including VAT and any other sales taxes) now or hereafter levied or imposed thereon. KompiTech’s invoices will separately state all applicable taxes. Customer shall not be liable for any taxes not included on the applicable invoice and KompiTech shall fully defend and indemnify Customer from any liability arising from such omission.
- Any invoice disputes must be submitted prior to the invoice due date. If the Customer disputes the invoice, it shall be entitled to withhold payment of the disputed amount until the dispute is resolved. The Parties shall work in good faith to resolve such issues within 14 days of the notification of the dispute.
- In case the Customer fails to fulfil the payment obligation in respect of an undisputed invoice or unjustifiably disputed invoice within the payment period set out above and does not pay it even within additional period provided by KompiTech, the Customer accepts that KompiTech may proceed according to the Clause 4.2 (i) hereof.
- Delinquent payments may bear interest at the rate of 0.5 % per month from the payment due date until paid in full. The Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by KompiTech in collecting such delinquent amounts, except where such delinquent amounts are due to KompiTech’s billing inaccuracies.
- Obligations of the Parties
- KompiTech will, in accordance with this Agreement:
- secure Platform’s operation and provide the Customer with IT Services according to the Customer’s Tickets dully and in a timely manner. The Services will be accurately and efficiently rendered in accordance with the current and highest professional and industry standards;
- perform the Services with staff that is suitably trained and qualified for the particular purpose;
- be responsible for complying with any applicable laws, statutes, regulations and codes of practice relating to the provision of the Services and all of its obligations hereunder;
- work and co-operate with Customer’s personnel and with any other personnel notified to it by the Customer;
- take out and maintain at its own cost comprehensive insurance, including professional indemnity insurance and general liability insurance to cover its liabilities and potential liabilities;
- at all times ensure that its employees, agents and sub-contractors comply with any applicable law and market standards relating to the environment, corporate social responsibility, conduct, security and health and safety while they are at the Customer’s sites.
- Customer will, in accordance with this Agreement:
- provide KompiTech promptly with all reasonable co-operation, information and inputs required by KompiTech to perform its obligations under this Agreement;
- pay the Platform Services Fee and IT Services Fee, provided that KompiTech has performed and/or provided the relevant Services to which the fees relate in accordance with this Agreement;
- if applicable, provide KompiTech with all necessary access to the sites required by KompiTech for the purposes of Services provision;
- keep KompiTech reasonably informed regularly and promptly of any material facts which may affect the provision of the Services.
- Either Party may terminate this Agreement upon a written notice that shall be effective at the end of Customer’s Package subscription period – i.e. for the annual Subscription Plan the cancellation shall be effective as the end of the year in which the termination is made and for the monthly Subscription Plan at the end of the month in which the termination is made.
- KompiTech may suspend performance of Services or terminate this Agreement with immediate effect if: (i) the Customer is in material breach of the Agreement and fails to cure that breach within the cure period provided by KompiTech; (ii) Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 60 days; (iii) declares its inability to pay its debts as they become due or files for liquidation or dissolution.
- Upon termination of this Agreement for any reason: (i) the Parties will use good faith and reasonable efforts to implement, as quickly as possible, a smooth termination that minimizes the adverse impact on the Customer; (ii) KompiTech will deliver all pending Services to the Customer; (iii) the Customer will pay all amounts due to KompiTech for Services performed in compliance with this Agreement and (iv) each Party will promptly return the confidential information to the discloser. Upon termination of this Agreement, the provisions of this Agreement that by their nature are intended to survive (such as confidentiality, intellectual property rights, indemnification, liability, governing law and dispute resolution) will survive.
- Intellectual property rights
- Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the Parties, Customer owns all intellectual property rights in Customer’s data, and KompiTech owns all intellectual property rights in the Services. However, if there is a disclosure of materials containing intellectual property rights, then the originating Party will allow the receiving Party to use its intellectual property rights by granting to the receiving Party a non-transferable, non-exclusive and royalty-free license to use such intellectual property rights solely to the extent necessary for purposes related to the Services.
- Each Party will: (i) protect the other Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (ii) not disclose the Confidential Information, except to affiliates, employees, agents and contractors who need to know it and who have agreed in writing to keep it confidential. Each Party (and any affiliates, employees, agents and contractors to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfil its obligations hereunder, while using reasonable care to protect it. Each Party is responsible for any actions of its affiliates, employees, agents and contractors in violation of this Clause.
- Confidential Information does not include information that: (i) the recipient of the Confidential Information already knew; (ii) becomes public through no fault of the recipient; (iii) was independently developed by the recipient; or (iv) was rightfully given to the recipient by another party.
- Each Party acknowledges that monetary remedies will be inadequate to protect the Confidential Information and that injunctive relief will be appropriate to protect such rights. Each Party acknowledges that the disclosing Party will be irreparably damaged to the extent that any of the terms of this Agreement are violated and agrees that such terms shall be enforceable through: (i) issuance of an injunction restraining the authorized copying, duplication, use, dissemination or disclosure of any Confidential Information, or (ii) any other remedies, whereas remedies shall be cumulative with and not exclusive of any other remedy or remedies.
- Each Party may disclose the other Party’s Confidential Information when required by law but only after it, if legally permissible: (i) uses commercially reasonable efforts to notify the other Party; and (ii) gives the other Party the chance to challenge the disclosure.
- The obligations set forth in this Clause 6 shall survive the termination of this Agreement for a period of two 2 years from the date of the last disclosure of Confidential Information hereunder.
- At the conclusion of the relationship between the Parties, all Confidential Information, including any reports, data, documents, files or other information resulting therefrom, shall be returned to disclosing Party or destroyed, and if destroyed, receiving Party shall provide written certification upon destruction.
- Data Protection
- Should the Parties process personal data obtained on the basis of this Agreement they are obliged to comply with the provisions of the Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and any other applicable national legislation.
- KompiTech hereby informs the Customer that it will process any personal data obtained from the Customer or on its behalf as a processor of personal data, in which case Annex 1 hereto shall apply.
- Under no circumstances shall either Party be liable to the other for any special, incidental, indirect, or consequential damages (including loss of data, profits, or revenue, cost of capital or downtime costs), or any exemplary or punitive damages arising out of any performance of this Agreement, regardless of whether such damages are based in tort, warranty, contract or any other legal theory, even if advised of the possibility of such damages. Notwithstanding any other provisions of this Agreement, any purported limitation on Party’s liability, either as to type or amount of damages shall not apply to any claim arising from Party’s breach of its obligations, or Party’s defence and indemnity obligations.
- Dispute resolution
- Any dispute or a claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be resolved as follows:
- either Party may submit a dispute for resolution by providing the other Party a written notice of the dispute. The notice shall contain a brief statement of the nature of the dispute, the relief requested and other relevant information;
- in the event of a dispute, the Parties shall attempt to use best endeavours to consult and negotiate in good faith (through their duly appointed representatives with authority to settle the same) and attempt to reach an amicable, just and equitable settlement satisfactory to the said Parties;
- If the dispute is not resolved through consultations and negotiations pursuant the process mentioned above, it shall be referred to the exclusive jurisdiction of the courts of Switzerland.
- Books and Records. KompiTech shall maintain complete and accurate accounting records to support and document all charges under this Agreement. Such records shall be retained for a period of at least 10 years following completion of the Services. Customer (or an accounting organization retained and authorized by the Customer) shall have the right to request access to such records, for purposes of audit, for so long as such records are required to be maintained. Each Party shall bear its own costs of an audit as per the preceding sentence. In any event, KompiTech shall have the right to dispute audit findings and shall have no liability for audit costs, other than its own, until the dispute is resolved.
- Non-Solicitation and Non-Competition. Neither Party will actively seek to employ, directly or indirectly, any personnel of the other Party or their subcontractors who has been engaged in connection with the Services for 12 months following termination of the Agreement. This Clause does not restrict either Party from recruiting through the normal process of advertising, interview and acceptance. If either Party does employ staff in breach of this Clause, that Party shall pay to the other Party by way of liquidated damages for such breach EUR 30,000 per person employed in breach of this Clause.
- Force Majeure. Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder arising from any cause beyond its reasonable control, including but not limited to: an act of God, war or civil war (whether declared or not), hostile or warlike action in time of peace and armed conflict; acts of terrorism; fire, flood, explosion or extraordinary act of nature; sabotage; pandemics; nuclear, chemical or biological contamination unless the source or cause of the contamination is the result of the actions of either Party; or acts of governmental authority (“Force Majeure Event”).
The Party claiming to be prevented or delayed in the performance of any of its obligations by reasons of Force Majeure Event shall give notice in writing of such delay or prevention to the other Party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration.
The Party claiming to be prevented or delayed in the performance of any of its obligations by reasons of Force Majeure Event shall take all reasonable steps to bring the Force Majeure Event to a close or to find a solution by which the Agreement may be performed despite the continuance of the Force Majeure Event.
- Anti – Bribery & Corruption. In connection with or in the performance of the obligations under this Agreement neither KompiTech nor any KompiTech’s personnel, shall directly or indirectly make or attempt to make any payment, offer for payment, or offer or promise to make any payment or take or attempt to take or agree to take in currency, property or anything else of value including any commission, payments, share in profits or commission, loans, or services to any government official, third person, client or potential client, firm, entity, individual, organization of Customer or any third parties in seeking or for making a favour in the course of conduct of business, in violation of any statute or regulation in any country of the world which has the objective of prevention of corruption of any nature whatsoever.
- Severability. Any provision of this Agreement which is declared void or unenforceable by any competent authority or court will, to the extent of such invalidity or unenforceability, be deemed severable and will not affect the other provisions of this Agreement. In lieu of the invalid provision or to fill the unintentional gap a legally valid and enforceable provision agreed between the Parties shall apply which corresponds as closely as possible to the intentions of the Parties according to the purpose of this Agreement.
- Waiver. No failure, delay, relaxation or indulgence on the part of either Party in exercising or partial exercise of any right hereunder shall operate as a waiver of such rights.
- Each notice required to be given pursuant to this Agreement shall be in writing and be deemed effective when delivered via the Platform, via registered or certified mail or in person.
- Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of Switzerland, without regard to the conflict of law provisions of such laws. The place of jurisdiction shall be Zurich, Switzerland
“Agreement” means this Agreement on Provision of Ad-hoc Support Services;
“Confidential Information” means with respect to either Party, all information relating, directly or indirectly, to such Party (or its affiliates) or its (or its affiliates’) business, products, markets, customers, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects which is delivered, disclosed or furnished by or on behalf of such Party to the other Party or its representatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished;
“Effective Date” means the date both of the following conditions are met: (i) Customer assents electronically hereto and (ii) the Customer’s intention to conclude this Agreement is confirmed by KompiTech as indicated in Clause 1.2 hereof;
“Force Majeure Event” means events and situations as described in Clause 10.3 hereof;
“IT Services” means part of the Services provided by KompiTech hereunder – i.e. any and all activities related to assurance of IT Services that the Customer seeks as defined in its requests for provision of IT Services submitted to the Platform;
“IT Services Fee” means a fee payable for IT Services provided hereunder as described in Clause 2.2 hereof;
“Package” means one of the Platform Services packages ‘Basic’, ‘Business’ or ‘Corporate’ as offered by KompiTech available or such other URL as may be provided by KompiTech;
“Platform” means KompiTech’s ticketing tool called BLiTS (platform), via which the Services are provided;
“Platform Services” means part of the Services provided by KompiTech hereunder – i.e. any and all activities related to assurance of Customer’s access to the Platform and proper functionality of the Platform;
“Platform Services Fee” means a fee payable for the Platform Services provided hereunder as described in Clause 2.1 hereof;
“Service Levels” means Service Levels of the IT Services as defined in Clause 1.6 hereof;
“Service Desk” means KompiTech’s Service Desk for any Services’ related matters and issues that is available.
“Services” means Platform Services and IT Services provided hereunder;
“Subscription Plan” means monthly or annual charging for the Platform Services depending on the Customer’s choice;
“Ticket” means Customer’s request for provision of IT Services submitted to the Platform, in which the Customer specifies details relevant for provision of IT Services such as the description, urgency, its location (or as the case may be any Customer’s site where IT Services are to be provided);