Subject: Software development (contract for work)
Edition: Version 4.1 | 01.09.2020
These General Terms and Conditions (GTC) apply to the software development services provided by Bitforge to the customer and govern the rights and obligations under the framework and individual contracts between the parties, unless these contracts have already made a binding arrangement. These GTC shall also apply without a framework and/or individual contract if the contract for work is concluded by accepting the offer.
In the case of contracts for the production of software, the developer owes the customer a success in the sense of an executable and properly functioning program / software by a certain date. Contracts for the production of software are concluded by signing the framework agreement and an “individual contract for the production of software” or by the customer’s acceptance of Bitforge’s offer. The following shall be regulated in the individual contract:
If the contract is concluded by means of an offer and without the conclusion of an individual contract, the offer shall contain the necessary specifications and the provisions on remuneration.
Offered modules and content or the associated technologies are evaluated to the best of our knowledge and belief at the time the offer is submitted. Regulatory or technological changes may result in changes to the schedule and costs.
The client may specify the agreed service or propose a change to the agreed services at any time during the provision of services. This will usually entail cost consequences. Bitforge shall subsequently inform the customer as soon as possible whether the change is possible and what effects it will have on the contract, in particular on deadlines and costs. Silence on the part of Bitforge shall not be deemed consent without cost consequences for the customer. Bitforge’s consent shall be given in writing, stating any additional costs and changes to deadlines within a reasonable period of time. The expenses for the clarification of the change or specification may be invoiced by Bitforge at the usual daily rate and may lead to delays in the project depending on the scope.
The deadlines agreed in the individual contract for the provision of the service and, if applicable, for the delivery of work results are binding for both parties. They can only be changed with the consent of both parties. If one party is unable to meet a deadline or fails to meet its obligations to cooperate, the other party shall not be obliged to meet the subsequent deadlines if it is no longer able to do so due to these circumstances. In this case, the other party undertakes to communicate a new deadline for the subsequent dates as soon as possible.
The type of remuneration and its amount are agreed in the respective individual contracts. The main options are remuneration on a time and material basis, with or without a cost ceiling, or a flat-rate fixed price, possibly with a performance-related component.
Remuneration on a time and material basis is invoiced monthly with detailed reporting. Any provisions relating to reporting are set out in the individual contract. Daily rates agreed in the individual contract apply to a net service provision time of 8.0 hours. In the event of an effectively shorter or longer net service provision time, the agreed daily rates shall be adjusted pro rata temporis.
Services at an all-inclusive fixed price are invoiced in accordance with the payment plan agreed in the individual contract. The agreed lump-sum fixed price covers all expenses incurred by Bitforge for the services described in the individual contract. Expenses and ancillary costs shall only be reimbursed to the extent agreed in detail in writing in the individual contract.
For clients domiciled / resident in Switzerland or the Principality of Liechtenstein, the following applies with regard to VAT:
Unless otherwise agreed in the individual contract, VAT is neither included in the rates for the reimbursement of expenses nor in the flat-rate fixed price and will be charged additionally. Bitforge shall show the VAT separately on the invoice, stating its VAT number.
All other domestic and foreign, direct or indirect taxes in connection with this contract and the associated individual contracts, in particular foreign value added taxes, shall be borne exclusively by the client.
Bitforge’s invoices must be paid in full by the customer within 30 days of receipt.
Unless otherwise agreed in the individual contracts, the customer shall receive the non-exclusive and non-transferable rights of use to the deliverables developed by Bitforge. The customer may use the software within the scope of the agreed service. Any further use requires the prior consent of Bitforge. All rights shall remain with Bitforge until full payment has been made.
Bitforge shall ensure that the rights to the service and work results cannot be claimed by its employees, auxiliary persons and subcontractors under any circumstances.
Bitforge shall ensure that it and its employees, auxiliary persons and subcontractors do not infringe any rights of third parties in the performance of their activities. In the event that Bitforge is nevertheless sued for infringement of Swiss or Swiss-recognized patents, copyrights or other intangible rights through possession and/or use of the service and work results produced by Bitforge, the customer shall be obliged to notify Bitforge immediately. Bitforge shall have the right to conduct the proceedings at its own expense and/or to make changes at its own expense in order to eliminate the infringement or to acquire the corresponding rights. In this case, the contracting parties shall be mutually obliged to provide each other with all information that may serve to defend the action free of charge upon first request.
If the customer is prohibited by court or other official order – even in proceedings in which Bitforge is not itself a party to the proceedings – from the unrestricted use of the work results produced by Bitforge due to alleged or existing rights of third parties, Bitforge shall not be liable for claims for damages or other claims for payment arising from the restricted or impossible use.
The party acting vis-à-vis the third party (Bitforge or the customer) shall obtain the written consent of the other party to the contract for the admission of the claim, withdrawal of any counterclaims, judicial and extrajudicial settlement, provided that the other party is at least indirectly affected. Consent may not be refused if the continuation of the dispute with the third party cannot reasonably be expected of the party wishing to terminate the contract in good faith in view of all the circumstances.
Bitforge’s liability under the title of warranty of title is limited to the obligations mentioned in this clause and is limited to a maximum of 20% of the order volume. Any further liability, in particular for consequential damage to the customer itself or to third parties, is excluded.
Bitforge shall be released from the above obligations if a claim under intellectual property law is based on the fact that the result of the services rendered was changed by the customer or by third parties not commissioned by the agent, or that its use takes place under conditions other than the specified conditions of use.
After delivery of the work, the customer shall inspect its condition as soon as feasible in the ordinary course of business and notify Bitforge of any defects. If the customer fails to do so, the work shall be deemed approved. The work shall also be deemed accepted if it is loaded into the official app stores and/or delivered to a productive system.
If the delivered work is expressly or tacitly approved by the customer, Bitforge shall be released from its warranty obligation unless the defects were not recognizable at the time of acceptance and proper inspection or were intentionally concealed. Bitforge shall be liable for such defects for 2 years from the date of acceptance.
If a defect occurs and is reported within 6 months of acceptance, the customer shall have the exclusive right to rectification instead of the warranty claims under the Swiss Code of Obligations. The right to rectification is excluded if this results in unreasonable costs for Bitforge in relation to the claim for remuneration of the service.
If a defect occurs and is reported after 6 months, the customer may either demand that Bitforge rectify the identified defects within a reasonable period of time, provided that this does not result in unreasonable costs in relation to the remuneration claim for the service, or claim a deduction from the total remuneration corresponding to the reduced value.
Unless otherwise contractually agreed, the executability of:
which are available on the market at the time the project is launched. The executability of AR applications requires an AR-capable device or, in the case of web AR applications, operation via the native mobile browser.
Bitforge shall be liable for damages attributable to the present contractual relationship in the event of fault at most in accordance with the following principles:
This limitation of liability only applies insofar as the exclusion of liability is permitted by law. The limitation does not apply to damage caused by gross negligence or intent.
To the extent permitted by law, Bitforge shall not be liable for indirect damages or consequential damages such as loss of profit or for third-party claims against the customer or indirect consequences of data loss.
Bitforge’s liability for auxiliary persons is excluded to the extent permitted by law.
Furthermore, Bitforge shall not be liable for any damages arising from the customer’s failure to comply with its contractual obligations (in particular its obligations to cooperate and provide information).
Bitforge undertakes to carry out all activities with the utmost care and in perfect quality using state-of-the-art technology.
Bitforge undertakes to keep a report on the time spent on its work, which can be made available to the customer at any time upon request within 3 working days.
Bitforge undertakes to provide information about all relevant circumstances that have a significant influence on the provision of the service.
The customer shall support Bitforge in the provision of the service essentially by providing timely and clear instructions, the necessary information and software in the format requested by Bitforge and at the right time. The customer shall ensure that Bitforge has permanent access authorization to all components of the customer’s IT system required to fulfil the contractual obligation and shall provide a sufficient number of suitable employees to be able to fulfil its contractual obligations to cooperate.
The customer is obliged to inform Bitforge of all circumstances that may affect the provision of the service.
The client shall ensure that all relevant stakeholders and decision-makers can be consulted within a reasonable period of time.
Breaches of these obligations to cooperate can have a significant impact on the schedule, which in extreme cases can lead to the project deadline not being met.
Should individual provisions of these GTC prove to be void or ineffective, this shall not affect the validity of the remaining GTC. In such a case, the contracting parties shall adapt the GTC in such a way that the purpose intended by the invalid or ineffective part is achieved as far as possible.
The contractual relationship between Bitforge and the customer shall be governed exclusively by Swiss law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 and to the exclusion of the conflict of laws rules of the Swiss Federal Act on Private International Law (IPRG).
The exclusive place of jurisdiction for any disputes arising from this contractual relationship consisting of the aforementioned contractual documents is Zurich.