For the provision of services and delivery of products by Skillplan GmbH, as of 02/2024.

1. scope of application

These General Terms and Conditions (hereinafter referred to as “GTC”) govern the mutual rights and obligations between Skillplan GmbH (hereinafter referred to as “Skillplan”) and its customers and sales partners. They shall automatically apply to all contracts between the parties, in particular with regard to the provision of products (hardware and software) and services, unless otherwise agreed in writing.
These GTC apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as Skillplan has expressly agreed to them.
Products and Services means the hardware and software products sold, licensed or distributed by Skillplan in accordance with the provisions of the GTC and other contractual documents (product descriptions, service descriptions, license agreements with manufacturers, third-party providers, etc.). Services include all IT-related project, consulting, maintenance, cloud or other services that Skillplan offers and provides on a time and material basis or for an agreed fee.
The GTC may be amended or updated by Skillplan from time to time.
All agreements that contain a modification, extension, dissolution or specification of these General Terms and Conditions or the contractual relationship based on them – in whole or in part – must at least be recorded in writing.

2. offer, conclusion of contract and delivery times

Offers from Skillplan are non-binding and subject to change, even if catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards) and other product descriptions or documents (including electronic) are provided to the customer. All documents provided to the customer in connection with the placing of the order shall remain the property of Skillplan and may not be made accessible to third parties unless Skillplan gives its express written consent.
A contract is concluded by the customer placing an order or signing an offer from Skillplan and the corresponding order confirmation from Skillplan. These documents, together with the GTC and other contractual documents, such as product or service descriptions, end user license agreements and service level agreements, form part of the contract. In the event of contradictions between the documents, the following order of precedence applies: 1. order form / accepted offer / accepted contract 2. general terms and conditions 4. service level agreement
The scope and execution of the delivery are determined by the contract. Skillplan reserves the right to provide security. The availability or deliverability of the products at the manufacturer remains reserved.
The deadlines specified by Skillplan are for guidance only, unless expressly agreed otherwise in writing. Skillplan is not liable for delays in delivery.
If Skillplan is unable to meet contractually agreed delivery deadlines for reasons for which Skillplan is not responsible (e.g. strike, lockout, material failure, transportation problems), Skillplan shall inform the customer of the circumstance without delay and provide an estimated or new delivery deadline. If late delivery is not possible even within the new delivery period, Skillplan may withdraw from the contract in whole or in part and reimburse the Customer for the purchase price already paid.
Changes or cancelations of orders by the customer require the written consent of Skillplan. Skillplan may claim agreed costs as well as costs already incurred due to change requests.
Skillplan shall be entitled to make partial deliveries and to involve third parties in the provision of services without obtaining the Customer’s consent. Skillplan is liable for the services of third parties as for its own services and transfers corresponding rights and obligations under the contract to third parties.

3. licenses

Unless otherwise contractually agreed, the customer shall receive a non-exclusive, perpetual or time-limited, non-transferable right to use the software, documentation, etc. in accordance with the licensor’s license terms. Please note: The corresponding end user license agreements (EULA) provided apply to the respective software products.
If the customer purchases software or services from third parties via Skillplan or uses Skillplan’s own licenses, the customer is generally responsible for correct licensing and must conclude contracts directly with the licensor (e.g. Microsoft).
The number of licenses or other units purchased is stated on the invoice in the case of usage-based licenses and is regularly adjusted in accordance with the other contractual provisions. The customer has no right to object to these adjustments.
When reselling or otherwise passing on the software products, the customer undertakes to transfer all obligations arising from the software manufacturer’s terms of use and warranty conditions to the purchaser, insofar as the resale is contractually or legally permissible.

4. rights and obligations of the customer

The Customer is responsible for providing all administrative, organizational and technical requirements so that Skillplan can provide the agreed service. This includes providing all the necessary information, resources, contact persons and technically skilled employees, as well as guaranteeing the technical framework conditions and access to the relevant premises, hardware and/or software. In particular, the Customer is obliged to store and use access data securely and to comply with all of Skillplan’s security guidelines.
Skillplan backs up customer data in accordance with current standards, but assumes no responsibility for error-free and continuous data backup and recovery. The customer is generally responsible for backing up the data, unless additional services have been ordered.
If the customer fails to comply with its obligations, it shall bear the risk of delays and additional costs arising from such non-compliance, without exception.

5. acceptance and testing

Upon receipt of the notification of readiness for acceptance or delivery of the products, the customer shall be obliged to inspect the services supplied by Skillplan GmbH without delay. Any defects must be reported to Skillplan in writing immediately after their discovery, but at the latest within 10 days of notification, delivery or collection. The defect must be described in as much detail as possible.
If the customer fails to report a defect, the subject matter of the contract shall be deemed to have been accepted.
A hidden defect must also be reported to Skillplan immediately after discovery, otherwise the item shall also be deemed to have been accepted with regard to this defect. This provision does not apply to defects fraudulently concealed by Skillplan.
Skillplan undertakes to rectify serious defects as quickly as possible. Should it be necessary to replace the delivered product, Skillplan will inform the customer immediately. All other defects will also be rectified by Skillplan accordingly. Any further claims by the customer, such as a price reduction, are expressly excluded.
If a defect is not reported in good time, all warranties and claims of the customer shall lapse, unless the damage or defect was not recognizable during the appropriate acceptance inspection.

6 Delivery and transfer of risk

Responsibility and risk are transferred to the customer upon handover, commissioning or active use of the delivered service. Recurring services will also be charged from this date. Ownership of the service is transferred to the customer after full payment, if applicable.
Liability for accidental loss and deterioration shall be transferred to the customer when the subject matter of the contract is handed over to the customer. In the case of a sales shipment, the customer assumes the risk of accidental loss, accidental deterioration and delay upon handover to the forwarding agent or carrier.

7. return of products

The return of purchased products by the customer is only possible with the prior consent of Skillplan and is at the customer’s expense. The products must be returned in their original packaging and must be accompanied by a detailed written description of the fault or defect and the proof of purchase. Otherwise, Skillplan reserves the right to refuse the return and to return the product at the customer’s expense. The return of products that are no longer in their original packaging or of software is generally excluded.

8 Prices and payment agreements

All agreed prices for Skillplan products and services are exclusive of VAT, other public charges, packaging and shipping costs. Unless otherwise agreed, accessories and spare parts are not included in the price.
Services are invoiced to the customer either at a flat rate or on a time and material basis in accordance with the rates in the relevant price list or in accordance with the contract. For usage-based services, the number of users, capacities used, licenses, etc. stated on the invoice shall be binding. Expenses are shown separately and invoiced as agreed.
The flat-rate fees are due from the date of acceptance or productive use of the agreed services and are invoiced in advance in accordance with the other contractual provisions.
Subject to price increases imposed by the manufacturer of hardware or software and passed on to the customer without delay. A right of termination due to price increases on the part of the manufacturer is excluded.
Skillplan reserves the right to adjust prices once a year in line with the consumer price index, up to a maximum of the annual inflation rate. There is no obligation to reduce the price. Skillplan informs the customer of the new prices in good time. A right of termination due to price increases is excluded.

9 Terms of payment and default

Unless otherwise agreed, the purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, Skillplan reserves the right, even during an ongoing business relationship, to make deliveries in whole or in part only against advance payment, in particular in the case of continuing obligations such as support. The applicable terms of payment will be announced at the latest with the order confirmation.
If the customer falls into arrears after expiry of the payment deadline, this shall occur without a reminder. Skillplan may then claim default interest of 5%.
In the event of default of payment by the customer, Skillplan shall be entitled, without further notice, to suspend services in whole or in part or to make them dependent on the provision of security until the claims have been settled or secured. Skillplan can have products that have already been installed but not paid for collected at any time after a warning has been issued. All consequences of such a suspension of delivery shall be borne exclusively by the customer. We reserve the right to assert further claims for damages.
If the customer does not pay his invoice or does not ensure fulfillment even after a grace period set by Skillplan has expired, Skillplan shall be entitled to refuse further services to the customer and to terminate contracts extraordinarily and to assert all further claims.
The Customer is obliged to inform Skillplan if liquidity bottlenecks are foreseeable. Skillplan also reserves the right to transfer and/or assign the claim and the associated documents and information to third parties for collection purposes
At Skillplan’s request, the customer assigns his claims from the resale of the products supplied by Skillplan to Skillplan GmbH on account of payment (Art. 172 OR).

10 Retention of title and right of retention

The products or copies of works delivered by Skillplan remain the property of Skillplan until full payment has been made, including all interest, fees or taxes. Skillplan reserves the right to enter the retention of title in the retention of title register in accordance with Art. 715 ZGB at the Customer’s expense and/or to notify third parties thereof. The Customer undertakes to give his written consent to the registration of a reservation of title in all relevant points immediately upon request by Skillplan.
As long as the purchase price has not been paid in full, the Customer shall be responsible for keeping the products delivered by Skillplan in proper condition, handling them with care and insuring them against all usual risks. The customer is not authorized to offset any counterclaims against the claims of Skillplan GmbH and is expected to waive any rights of retention against Skillplan.

11 Warranty and rectification of defects

The customer is responsible for the selection, configuration, deployment and use of products and the results achieved with them. The Customer is aware that Skillplan does not carry out incoming inspections of products supplied by manufacturers or suppliers.
Skillplan provides its services in accordance with recognized standards in the best possible way. However, Skillplan cannot guarantee the continuous uninterrupted and fault-free functioning of its services, nor can it guarantee access to the Customer’s or third parties’ data at all times. The occurrence of such an event does not constitute good cause. Skill plan not guaranteed
1. certain transmission times and capacities,
2. access to data created by third parties or retrievable from third parties at any time,
3. absolute protection of the customer’s data held by Skillplan
4. the prevention of unauthorized access to this data at all times, etc.
Material defects and defects of title shall be remedied at Skillplan’s discretion either by rectification of the defect or by replacement delivery, insofar as this is possible and appropriate. The Customer is obliged to grant Skillplan the necessary time and opportunity to remedy the defect. If necessary, the Customer must hand over the defective subject matter of the contract to Skillplan for inspection purposes. Alternatively, defects can also be rectified by remote maintenance, if this is possible.
Defective software can also be rectified by Skillplan by informing the Customer of ways to avoid the effects of the defect or by using a different software version, provided this is reasonable for the Customer.
If the defect cannot be remedied or can only be remedied under unreasonable conditions, Skillplan reserves the right to take back the subject matter of the contract against reimbursement of the purchase price less a reasonable amount for the period of use. In this case, the customer is obliged to return the subject matter of the contract.
Skillplan GmbH shall provide the services owed in accordance with the General Terms and Conditions and the other contractual terms and conditions by qualified specialist personnel with due care. The aim is to ensure the agreed quality and quantity of services and maintenance work. This includes, in particular, compliance with guaranteed availability, specific response and/or troubleshooting times and compliance with an escalation procedure or other measures to restore proper availability after disruptions.
The warranty and product liability of Skillplan GmbH for the delivered products are subject to the warranty provisions of the respective manufacturer/supplier. These are generally limited, at the manufacturer’s/supplier’s discretion, to the repair or replacement of the defective product when used in Switzerland and the Principality of Liechtenstein. The customer waives any further warranty claims against Skillplan GmbH and the manufacturer/supplier. Skillplan GmbH is only obliged to assign its own warranty claims against the manufacturer/supplier to the customer. For other services, a warranty period of 3 months applies, insofar as legally permissible.
A defect shall only be considered as such if it is reported in writing and in detail immediately after its discovery and if it shows a relevant and reproducible fault.
The warranty is excluded in particular for defects that are due to the customer’s failure to fulfill his obligations, such as insufficient maintenance on the part of the customer, non-compliance with operating or installation instructions, improper use of the products, use of unauthorized parts and accessories, natural wear and tear, transport, improper handling or repair attempts and modifications.
The warranty is also excluded for external influences, in particular force majeure (e.g. power supply or air conditioning system faults, damage caused by the elements), as well as other reasons for which neither Skillplan GmbH nor the manufacturer/supplier are responsible.
Costs for defect rectification services that are not covered by the manufacturer/supplier, as well as additional costs caused by the customer, shall be charged to the customer. If the error description is missing or insufficient, Skillplan shall diagnose the error at the customer’s expense. In any case, the Customer is obliged to comply with the procedures defined by Skillplan or the respective manufacturer/supplier for processing warranty claims.

12 Exclusion and limitation of liability

Skillplan shall only be liable for damages and compensation for futile expenses in the event of intent or gross negligence or culpable breach of a material contractual obligation in accordance with the statutory provisions. In the event of a breach of a material contractual obligation, Skillplan’s liability shall be limited to the typically foreseeable damage, except in cases of intent or gross negligence.
Any liability for indirect or consequential damages such as loss of profit or damages from loss of data is expressly excluded in full.
Skillplan GmbH is not liable for damage caused by force majeure (fire, water, power cuts or fluctuations in the power supply, earthquakes, strikes, intervention by third parties, etc.). Should a state of force majeure last for more than four weeks, Skillplan GmbH shall be entitled to withdraw from the contract without further ado. Any additional expenses will be invoiced in accordance with the then applicable rates.
The limitations of liability do not apply to personal injury and to statutory liability in accordance with the Product Liability Act.
The customer accepts that in the event of liability on the part of the rights holder and/or its partners, liability is limited to the cost of the subject matter of the contract. Under no circumstances will the liability of the rights holder and/or its partners exceed the costs paid for the subject matter of the contract.
The above limitations of liability also apply directly in favor of Skillplan’s employees, representatives and vicarious agents.

13. confidentiality

The Customer undertakes to keep confidential all confidential information relating to any subject matter of the Contract and to use such information only for the purposes for which Skillplan has disclosed it and to take reasonable steps to ensure confidentiality.
Confidential information is all information about facts relating to a business operation that is only known to a narrowly defined group of people, i.e. is not in the public domain and should be kept secret due to a legitimate interest of the business owner, regardless of its nature and form. This includes, in particular, oral information, letters, memoranda, reports, documents, studies, analyses, drawings, letters, computer printouts, software programs, specifications, data, graphical representations, tables, sound recordings, visual reproductions and any kind of copies of the aforementioned information.
Skillplan undertakes to treat confidential information made available to it by the other party or its suppliers or auxiliary persons as confidential and to protect it from access by third parties.
Insofar as the customer is subject to additional statutory confidentiality obligations (e.g. banking secrecy, attorney-client privilege, medical confidentiality, etc.), Skillplan also undertakes to keep all information and data covered by these confidentiality obligations secret and to instruct and train its employees and auxiliary persons accordingly. Generally known or publicly accessible information is not considered confidential.
Skillplan reserves the right to disclose and forward data to authorities in Switzerland and abroad in the context of civil, administrative and criminal proceedings, provided there is a legally binding and enforceable judgment, an order or a legal obligation to do so.

14 Patents and other industrial property rights

Intellectual property such as know-how, registered trademarks, copyrights and patent rights of Skillplan GmbH and its suppliers must be recognized and protected by the customer. Product names and/or copyright marks may not be removed from the products.
The products must be used by the customer exclusively in accordance with the areas of application and configuration guidelines described by the manufacturer or licensor. Furthermore, the customer undertakes not to modify, reverse engineer, further develop, translate, lease or otherwise make available the software. The license terms of any open source components in Skillplan software remain unaffected.
All trademarks, logos and service marks (“Marks”) displayed on a Contractual Item are the property of Skillplan or other third parties. Users are prohibited from using these trademarks without the prior written consent of Skillplan or the third party that owns the trademark.
“SPSA Foundation”, “SPSA Pro” and “SPSA Enterprise” are either registered trademarks or trademarks of Skillplan GmbH.
The names of companies and products mentioned may be trademarks of their respective owners.
Should a third party assert claims against the Customer or its end customer due to infringement of a patent, copyright or other industrial property rights by delivered products, the Customer must inform Skillplan immediately in writing of such indications or claims made. Skillplan will immediately forward this information to the supplier or manufacturer and ask them to resolve the situation. The customer waives any guarantee, warranty or liability claims against Skillplan and must contact the manufacturer. Any claims of Skillplan against the manufacturer shall be assigned to the customer. Skillplan excludes any liability for infringements of intellectual property rights.

15. compliance with laws, including import/export laws

The customer is advised that the products may be subject to the export regulations of Switzerland and the countries of origin; detour contrary to the laws and regulations is prohibited.
The customer undertakes to comply with all applicable international and national laws that apply to the products as well as the end-user, end-use and destination restrictions issued by Switzerland and other governments. In particular, the customer undertakes to apply for a special export license from the competent authority before any re-export of the products. This obligation is to be transferred to the respective purchaser with the obligation to pass on the obligation when selling or otherwise transferring the products.
By downloading or accessing software or technical information, the customer agrees to comply with these export and customs regulations as well.
Further information on export controls can be found at https://www.eda.admin.ch/eda/de/home/aussenpolitik/sicherheitspolitik/exportkontrolle.html.
Skillplan assumes no responsibility or liability for any failure by the Customer to obtain the necessary import and export permits and licenses
Skillplan reserves the right to terminate or suspend deliveries, services and support if Skillplan has a reasonable suspicion of an import or export violation.

16. data protection

Skillplan GmbH undertakes to comply with the relevant data protection regulations and to process data conscientiously(see Skillplan’s privacy policy).
Personal data may be transferred abroad within the framework of the above-mentioned provisions. Customer data stored on Skillplan’s infrastructure is not transferred abroad and is protected in a special and customer-specific manner. Should a transfer nevertheless take place, the applicable data protection requirements will be observed in accordance with the applicable federal law on data protection. However, the transmission of data is possible for telecommunications services (e.g. Internet connections, voice services) within the framework of the statutory regulations.

17. misuse

When using Skillplan’s services, the customer is obliged to comply with these General Terms and Conditions (GTC) as well as all other contractual provisions and statutory regulations. In particular, the services may not be misused to commit criminal acts, such as unauthorized use like uploading copyrighted content or illegal content. Misuse also includes repeatedly exceeding capacities and limits, the undeclared resale of the services by the customer to third parties and/or the use of the services with undeclared use of Skillplan’s infrastructure.
Any resale of services to third parties requires the prior written consent of Skillplan. Third parties shall also include companies affiliated with the customer, unless otherwise agreed. The provision in section 4 of these GTC remains reserved.
The customer is solely responsible for the content of information which he makes publicly accessible on the Internet and which is hosted on the infrastructure of Skillplan GmbH and is accessible to third parties via telecommunications networks. The Customer must refrain from carrying out abusive and illegal activities on the Internet using Skillplan’s infrastructure, such as the publication of erotic, pornographic, racist or violence-glorifying content, generally illegal or offensive content and the misuse of copyrighted works. If Skillplan receives a warning from a third party due to illegal content or improper use, Skillplan reserves the right to suspend services and/or issue a warning to the customer.

18. transmission

The Customer may only transfer rights and/or obligations under individual contracts with the prior written consent of Skillplan. However, Skillplan reserves the right to transfer rights and/or obligations and/or the entire contract to third parties without the Customer’s consent.

19 Miscellaneous provisions

Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be incomplete.
All agreements, amendments, additions and legally relevant declarations must be recorded in writing in order to be effective. Amendments to the GTC or other standard contractual documents may be made without the customer’s consent. Skillplan GmbH shall inform the customer in good time of any changes to the GTC or other standard contractual documents in advance. In the event of a significant deterioration in the conditions for the customer, the customer has the right to withdraw from the individual contract or the individual order at the time of the change to the GTC or the standard contract documents. The changes are tacitly accepted without notice from the customer.
Should individual provisions be or become invalid or void, the remaining provisions shall remain valid and effective. In such a case, the invalid provision must be interpreted or supplemented in such a way that the intended regulatory purpose is achieved as far as possible.
In the event of a migration to or from Skillplan, the current prices for the corresponding services apply.

20 Applicable law and place of jurisdiction

This contractual relationship shall be governed exclusively by Swiss law with the express exclusion of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on April 11, 1980).
The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of Skillplan. Skillplan shall also be entitled to sue the Customer at the ordinary places of jurisdiction.

Merlischachen, February 2024