General Terms and Conditions
These General Terms and Conditions govern the entering into, the content and the performances in particular of contracts for the sale of goods by CTModule AG to customers / resellers / distributors, in the following text summarized under the single term ‘customers’.
By accepting an offer, the customer declares that he accepts the terms and conditions set out hereunder. The terms and conditions at hand may be varied by terms in personalized offers, contract documents or any other part of the contract.
The customer explicitly accepts that these General Sale Conditions shall apply and that the customers General Terms and Conditions are completely excluded. Any supplementary or conflicting terms shall have effect only if confirmed in written form by both CTModule AG and the customer. Different provisions quoted in correspondence, purchase conditions or other documents shall only apply if explicitly confirmed by CTModule AG in written form.
CTModule AG grants customers the usufructuary right on its products contractually agreed in accordance with the regulations of these General Terms and Conditions.
The term ‘Products’ means the entirety of the products, services, license material and other materials, including names, trademarks, documentations, hardware, software, manuals, instructions, further know-how etc. provided to the customer by CTModule or at its request. It is clarified that all further products, materials etc. provided to the customer during the term of the contract automatically form or become part of the GTC.
In case of an order through a distributor of CTModule AG’s products, the General Terms and Conditions of this distributor apply additionally to these of CTModule AG. For the proceeding of an order the General Terms and Conditions of the distributor have major priority.
The customer may make its order in written form (post mail, fax, e-mail, etc.) or by telephone. These General Sale Conditions shall be deemed as accepted if the customer submits an order.
An order made by the customer may or may not be accepted by CTModule AG at its sole discretion.
In the event that CTModule AG accepts the order of the customer, CTModule AG will confirm the particular order with a confirmation letter, which states the type of the products to be sold as well as their pricing.
These terms and conditions will be enclosed with the order confirmation or can be viewed at any time on the CTModule website.
The price of the ordered product by the customer and, if applicable, the maintenance will be listed in the order confirmation from CTModule. Other price quotations, e.g. in brochures, lists or other documents, are not valid.
The Delivery terms are EXW Berne, Switzerland (INCOTERMS 2000) and all price indications exclude VAT.
All taxes, duties or other charges in connection with the sale and delivery of CTModule’s products to the customer shall be borne by the customer. All costs and expenses in connection with the packing, insurance and transportation of CTModule’s products to the customer shall be borne entirely by the customer.
Any delivery periods indicated by the customer or CTModule orally or in written form shall be non-binding unless explicitly accepted by CTModule AG in written form included in an offer, in a confirmation letter or in the contract.
All risks related to the transport or delivery of the products are borne by the customer.
The customer undertakes to check the quality and completeness of the delivered products upon receipt of the products and to notify CTModule in writing of any missing or defective products within 30 days of receipt of the products.
Before returning defective hardware products, the customer must receive an RMA (Return Material Authorization) number from CTModule (see also section 15).
Should the acceptance test reveal defects that do not render the functionality and/or proper use of the Licensed Materials impossible or unreasonably difficult, the Customer shall issue the respective acceptance without claiming a reduction in price, provided that the defects are remedied on time. The Licensor agrees to remedy such defects as soon as possible, but no later than within the warranty period set out in Section 15. In the event of material defects that make the proper use and/or functionality of the Licensed Material impossible or unreasonably difficult, the Customer may refuse to grant acceptance and set the Licensor a reasonable deadline to remedy the defects. If, despite two attempts, the third acceptance test fails, the customer shall be entitled to continue to demand rectification or, exclusively in the case of defects which make the use of the Licensed Material impossible or unreasonably difficult, to withdraw from its order in whole or in part with respect to the defective Licensed Material.
Acceptance shall be deemed to have been granted in any case if the Customer does not accept the Licensed Material within 30 days of delivery or provision for call-off or if the Customer starts the productive use of the Licensed Material.
CTModule products are partly delivered in a basic version without options. If necessary, an enhanced license can be requested via e-mail address. The request must contain following information: product and version, startup code, desired number of voice lines, desired number of fax lines, desired options, the name of the partner company and/or the purchaser, as well as a valid e-mail address to which the license key shall be sent.
CTModule AG’s products may consist of hardware and software or only software. These clauses regulate the license terms for all software incl. additional products of CTModule. The hardware delivered by CTModule to the customer becomes the property of the customer according to the provisions of these GTC.
The usufructuary right for CTModule AG software shall be understood as single, non-exclusive and non-transferable licenses, with use at the contractually defined location, on that (or those) defined computer system(s) of the customer.
The licensed products, including manuals, documentations etc., represent business secrets, are protected by copyright law and may only be used on the system(s) as defined previously between the contract partners. The software may only be copied with remark of the copyright and patent law notes and only for usage on the previously declared computer system(s) of the customer. The use of the licensed products at to the customer affiliated or co-operating enterprises or partner companies etc. requires a previous agreement by CTModule in written form for each case.
The software may not be distributed, copied, translated, disassembled, decompiled, reverse engineered, built up or merged with other software, adapted, modified or changed. All manuals and documentations are property of CTModule and may not be distributed, neither completely nor partly, in some way copied, be converted into any electronic form, translated or in any other way reproduced.
If a temporary limited operating time was contractually agreed, the customer may not use the licensed products, as well as all directly or indirectly related things and rights, any longer after the expiration of the contract. The customer has to hand back all products to CTModule AG on the last day of the term of contract at the latest, without being requested. Furthermore, the customer ensures that all software copies and installations are deactivated and deleted within the last day of the term of contract.
The Software and the Licensed Products can’t be used or transferred outside the territory of the agreed area.
6.1 License material
The software and the available documentation for it in printed or machine-readable form, as well as disks are hereinafter collectively referred to as the “Licensed Material”.
The use of the Licensed Material is only permitted for the Customer and only on the computer unit on which it was first installed. The license material is provided to the customer without granting any copyrights only for use during the term of the contract, there is no transfer of ownership. There is no right to delivery or use of the source code (even if this, for whatever reason, is located at the customer).
6.2 Additional Services
Services in connection with the development and adaptation of the Licensed Material to special needs of the customer, consulting, installation, commissioning and use of the Licensed Material as well as introduction and training of customer personnel are provided by CTModule according to a separate agreement. In the absence of such an agreement, the customizations shall be deemed to be the sole component of the Licensed Material.
6.3 Securing of Source Code
A possible security deposit of the source programs and the development documents by transferring them to an agent against payment can be agreed upon under a separate software escrow agreement.
The responsibility for the selection, the installation and the use of the products and the problem solution aimed by its use is with the customer, provided that CTModule has not provided paid advice for it. The customer is also responsible for the selection, use and maintenance of the IT systems, further programs and data systems used in connection with the product as well as the services required for this and provides the organization suitable for the use of the product. The customer is furthermore responsible for the compliance with the instructions given by CTModule in connection with the use of the Licensed Material, takes appropriate precautions for the control of the generated results as well as for the data backup and is responsible for the compliance with the legal regulations applicable in the area of the use of the Licensed Material.
Subject to deviating regulations, the following regulations shall apply with regard to the right of use:
8.1 Proper use
“Proper use” within the meaning of CTModule is the complete or partial loading, saving, transferring, converting, running and reproducing of the programs in machine-readable form for the purpose of executing the program instructions for processing the customer’s data, as well as the temporary production of copies required for this purpose and the related use of the documentation.
The proper use also includes the right of the Customer to make archive and backup copies. The use of such copies may not be used to extend the granted right of use. Archive and backup copies shall be designated as such. Furthermore, the customer shall have the right to use the licensed material temporarily on an alternative system in the event of a failure of the designated computer system and to test this potential use.
8.2 Increased or extended use
An increased or extended use of the licence material compared to the specifications in the licence, e.g. on one or more IT systems of larger capacity or higher performance, on additional devices, by a larger number of authorized users, at additional locations of use, by affiliated companies or for an increased use in terms of type, scope and intensity is not permitted without prior consent by CTModule and leads to a corresponding adjustment of the licence fee. If the increased or extended use takes place without CTModule’s consent, CTModule may demand immediate cessation or, in case of subsequent consent, retroactively charge the customer the then applicable additional license fees.
Unless permitted by law (Art. 21 copyright), decoding is not permitted.
8.4 Revocation of the right of use
CTModule grants the customer a right of use to the license material ordered by the customer. This right of use can be withdrawn by CTModule at any time if the customer does not pay for this use in due time.
9.1 Deployment and installation
The type, place and time of deployment of the license material to the customer are specified in the order confirmation. Unless otherwise agreed, the deployment for use shall be effected, at CTModule’s option, by granting the electronic retrievability of the Licensed Material or its delivery on a data medium.
Unless otherwise agreed, the Licensed Material shall be delivered in its latest version released by CTModule for distribution.
If CTModule does not comply with the delivery date stipulated in the order confirmation, the customer has the obligation to set CTModule a grace period of at least 30 days for delivery by registered letter.
If the delivery of the license material does not take place within this period, the customer has the right to withdraw from the contract with written notice to CTModule against refund of already paid license fees.
This does not apply in cases of force majeure (section 17).
9.3 Replacement delivery
If the license material is accidentally damaged or deleted by the customer, CTModule shall provide a replacement upon the customer’s request, if possible and available. In this case, the customer has to bear the effective costs for replacement, transmission and possibly installation of the license material.
Unless otherwise agreed, payment must be made within thirty (30) days after CTModule AG’s date of invoice. CTModule AG has at all times the right to request a prepayment (invoice and payment before delivery).
If the customer’s payment is not made within the payment deadline, CTModule AG reserves itself the right to charge interest at a rate of one-point-five (1,5) percent per month.
CTModule remains owner of the hardware until the full amount has been paid to CTModule by the customer. CTModule reserves the right to register the reservation of ownership at the respective commercial register at the registered office of CTModule or the customer.
Until the hardware has been paid for in full by the customer, the products may not be modified, pledged or sold by the customer.
The customer hereby acknowledges and confirms that all intellectual property originated in connection with the ordered products shall turn into exclusive property of CTModule AG.
The customer shall treat all information obtained from CTModule AG which is marked as “confidential”, or which is in a general manner called differently, or which has the necessary quality of confidence, strictly confidential.
This obligation shall remain in force, as long as there is a legitimate interest in it, even after the termination of the cooperation.
CTModule and the customer are aware that a cooperation may lead to the processing of personal data about the contracting parties, their employees, subcontractors, etc. They agree that such data may be used for the processing and maintenance of their business relations and may also be disclosed for this purpose to third parties such as manufacturers, suppliers, holders of intellectual property rights, subcontractors, forwarding agents, credit institutions in Switzerland or abroad. In such cases, the disclosing party shall take appropriate organizational, technical and contractual precautions to ensure data protection.
The customer hereby acknowledges that certain products sold hereunder may be subject of the export control laws and/or regulations of the Unites States, the European Union or other countries. The customer agrees to adhere these laws and regulations in their fully entirety.
The customer is aware that the export of IT equipment (in particular hardware and software, but also associated know-how) from Switzerland may be subject to export controls and undertakes to comply with the relevant regulations.
CTModule AG ensures the functional efficiency of the products in accordance with the current manuals and technical specifications of CTModule AG and/or the manufacturers of third-party hardware products, under the condition of a professional installation of the product, with consideration of the technical specifications and instructions of CTModule AG, as well as to the exclusion of the claim on further properties and services.
The liabilities of CTModule AG are related and/or limited to the software versions officially supported by CTModule AG.
CTModule AG is liable to solve immediately reported and reproducibly documented software errors. It’s CTModule AG’s sole discretion to either fix software errors or to name counteractive or bypass measures to solve the error. A software error is present, if the software does not render the contractual defined performance or only in a substantially decreased way, although the product was installed and performed professionally, with consideration of the current manuals and technical specifications of CTModule AG, as well as under exclusion of the requirement on further properties and services.
The period of warranty of customized provided software amounts thirty (30) days. It begins with the delivery date of the software and does not extend due to services of CTModule AG in the context of the warranties.
Any further assert of claims of the customer is impossible, including the liability for direct, indirect or coincidental damage and consequential damages, lost data or programs, etc.
If the reported error or problem is not caused by CTModule AG and/or its products, the activities and services arisen by CTModule AG for debugging and bug fixing goes on the account of the customer, in accordance with the valid tariffs of CTModule AG.
In case of a defective hardware CTModule AG supplies up to a max. of three (3) spare license keys per end user installation free of charge. The customer must submit to CTModule AG a confirmation of the defective hardware from the end user in written form and without special request.
CTModule AG’s warranties regarding the products preinstalled to hardware are limited to furnish a replacement product or parts thereof or, to CTModule AG’s sole discretion, to repair defective parts, free of charge and for a maximum period of twelve (12) months after delivery of the products to the customer. CTModule AG shall be granted an appropriate period of time in order to have such replacement or repair properly effected.
To the extent to which it may be legally applicable, there is no warranty on customized provided software products without hardware.
No warranty shall be given to the customer if the defects result from improper or inadequate installation, use or maintenance of the products.
The customer needs to request a RMA (Return Material Authorization) number before sending any products back to CTModule AG.
Furthermore, CTModule AG declines any other liability or warranties for faulty products or damages caused by the products as a result of faulty material or manufacturing, or damages occurring as a result of the commercial use of the products or pure financial damages (i.e. any damage which does not result out of physical harm to a person or its property), or other indirect or consequential damages.
For a fee according to current CTModule price lists for the respective products, special maintenance agreements can be obtained from CTModule
End customers address their support requests to the CTModule partner (customer). CTModule partners have contact details available as part of the support and maintenance agreement. Requests by customers are to be started with the following information: product and version, start code, exact error description, configuration of the surrounding system (e.g.: TVA, soft PBX, router configuration, etc.), urgency, contact person with contact details. Support is provided according to the maintenance agreements during office hours.
As far as not contractually agreed to deviating regulation, the maintenance agreement begins with the date of the order of the CTModule AG maintenance services, with a firm maintenance period of twelve (12) months. The contract automatically renews for a further period of twelve (12) months, if it is not cancelled in written form ninety (90) days before the beginning of the new maintenance period.
The customer does not have the right to demand from CTModule free of charge the latest version of the software and the latest modifications of existing versions. Special conditions according to the price list apply in this respect.
Further regulations particularly for Callisto products are to be taken from the Service Level Agreement (SLA) for Callisto products of CTModule AG.
A breach of the contract caused by the customer, in particular an offence against the property and patent law, authorizes CTModule AG to cancel the agreement between CTModule AG and the customer without notice or compensation. The assertion of amends remains expected.
The compulsory treaty indemnity of CTModule AG stands under the reservation of the service provision and/or supply by its suppliers/contract parties.
Force majeure shall be deemed to exist if an event beyond the control of one or both contracting parties prevents or makes it impossible for one or both contracting parties to perform the contract in whole or in part.
Force majeure shall not be deemed to exist if the event or events of such nature could have been foreseen with the expected commercial prudence and reasonable measures could have been taken against such events, at the time of the conclusion of the agreement or later, in order to avert them in whole or at least in part.
The effects of force majeure relate exclusively to the respective subject matter of the contract.
Force majeure shall temporarily or permanently release the contracting party from its obligation to perform the contract. The contracting party hindered or prevented from fulfilling the contract due to force majeure shall not owe the other contracting party any compensation for damages or other expenses. However, the contracting party invoking force majeure shall take all reasonable measures to mitigate the negative consequences of the force majeure that have occurred or threaten to occur at the other contracting party.
Force majeure shall not constitute an automatic reason for termination of the contract. If force majeure means that the contract can probably no longer be definitively fulfilled, both contracting parties shall each have an extraordinary right of termination with immediate effect, subject to mandatory legal provisions and a longer notice period appropriate to the specific circumstances.
The invalidity or unenforceability of any provision of these General Sale Conditions shall not affect the validity or enforceability of the reminder of such provision or paragraph. The void or unenforceable provisions shall be replaced by valid, enforceable provisions to be agreed upon by the parties hereto which shall accomplish as precisely as possible the purpose and intent of the void and invalid provisions.
These General Terms and Conditions shall be governed by and construed in accordance with the laws of Switzerland, the Vienna Convention on Contracts for the International Sale of Goods being excluded.
All disputes shall be exclusively resolved by the ordinary courts of the city of Berne, Switzerland.
The General Terms and Conditions are subject to change by CTModule AG without notice.