Terms of Service

General Terms and Conditions (GTC) of James Solutions AG

Contract language is German.
I. Scope
1. The following provisions apply to all business relationships of JAMES SOLUTIONS AG, regardless of the content and legal nature of the contractually accepted services. These general terms and conditions (hereinafter also referred to as "GTCs") apply exclusively, which the contractual partner (hereinafter also referred to as "customer" or "client") on the Internet pages of JAMES SOLUTIONS AG underhttp://www.james-solutions.ch/agbsonline if they are not included in offers or order confirmations from JAMES SOLUTIONS AG. These terms and conditions apply exclusively, which are accepted at the latest when the customer accepts the first delivery and apply for the entire duration of the business relationship.
2. The conditions of the contractual partner do not become part of the contract even if they are not expressly contradicted. Deviating or conflicting purchasing or other general terms and conditions of the customer will not be recognized unless JAMES SOLUTIONS AG has expressly agreed to their validity in writing; The present General Terms and Conditions also apply if JAMES SOLUTIONS AG concludes a contract with the customer or executes his order without reservation while being aware of conflicting or deviating general terms and conditions of the customer.
3. Assurances, ancillary agreements, changes to the contract and declarations by representatives require written confirmation from JAMES SOLUTIONS AG to be effective. Its requirement cannot be waived.

II. Offers / subject matter of the contract
1. The subject of the contract is the delivery of hardware, electronic devices, accessories and other devices. If own software or third-party software is part of the delivery, the license conditions of JAMES SOLUTIONS AG or the corresponding third-party provider apply in addition to these GTCs. Also subject of these terms and conditions are consulting services, development of hardware and software as well as programming work for the additional special provisions in Section XIII. be valid.
2. All offers are non-binding and subject to change with regard to price and delivery options.
The information and descriptions, illustrations, drawings, dimensions, performance and weight data contained in documents, brochures, price lists or other electronic media, as well as the information provided with an offer, are not binding.
3. The contract comes about either with the written confirmation of JAMES SOLUTIONS AG or with the corresponding delivery. JAMES SOLUTIONS AG is entitled to refuse acceptance of the order, for example after checking the customer's creditworthiness. If a delivery is made immediately without confirmation, the invoice is also valid as an order confirmation.
4. All suggestions, concepts, information, drawings, program explanations, trial versions, samples, examples, manuals, etc. (all together hereinafter also referred to as "documents") made available to the customer in offers or other forms of communication remain the intellectual property of JAMES SOLUTIONS AG, to which JAMES SOLUTIONS AG reserves all ownership and copyright exploitation rights without restriction. The documents may only be made accessible to third parties with the prior consent of JAMES SOLUTIONS AG and, if the order is not placed, must be returned immediately upon request and may not be used.
5. If the contractual partner is a reseller, he is exclusively and solely responsible for the content of his contractual relationship with his customer (end customer), such as in particular the selection of the products for this end customer and the project planning. JAMES SOLUTIONS AG does not guarantee that the products offered by the contractual partner and its project planning correspond to the content of the contractual relationship with the end customer.
6. JAMES SOLUTIONS AG reserves the right to change the function, design and form of the subject matter of the contract without prior notice during the delivery period, provided that the subject matter of the contract and its appearance are not subject to any changes that are commercially unreasonable for the customer. In particular, technical changes, improvements and adjustments to the latest state of the art in operating systems, science and technology, improvements in construction and the choice of materials are reasonable. All quantities, dimensions, colors and weights are subject to the customary tolerances.
7. JAMES SOLUTIONS AG reserves all property rights and copyrights to images, films, illustrations, data sheets, drawings, calculations, information material and other documents. This also applies to such written documents that are marked as "confidential". The non-exclusively private use, in particular the transfer to third parties, by the customer requires the express prior written consent of JAMES SOLUTIONS AG. The contractual partner is solely liable if the execution of his order on the basis of documents provided by him violates rights, in particular industrial property rights of third parties.
The following also applies to the use of images, in particular those of JAMES SOLUTIONS AG, texts, films, illustrations, data sheets and drawings: The use of images, in particular of JAMES SOLUTIONS AG products, texts, films, illustrations, data sheets and drawings, which on the Internet pages of JAMES SOLUTIONS AG or elsewhere, such as in data sheets, presentations or catalogues, represents an infringement of copyrights without the consent of JAMES SOLUTIONS AG. Any unauthorized use of images can give rise to a justified warning.

III. Delivery, delivery time and delay in delivery
1. Agreed delivery periods begin with the conclusion of the contract. Compliance with the delivery obligation of JAMES SOLUTIONS AG presupposes the timely and proper fulfillment of the customer's obligations and that the customer fulfills his contractual obligations and any agreed payment obligations that are essential for the order. The exception of the unfulfilled contract remains reserved.
2. JAMES SOLUTIONS AG endeavors to meet the delivery dates and deadlines specified to the customer. The agreement of delivery dates and deadlines must be in writing. Subsequent requests for changes and additions by the customer extend the delivery time appropriately. We are also not responsible for the aforementioned circumstances if they occur during an already existing delay.
3. Delivery, test and commissioning deadlines, particularly in connection with project and development services, begin at the earliest after receipt of all documents, test devices, etc. required for the execution of the orders and the fulfillment of any agreed test and installation requirements by the customer , any agreed down payment by the customer and, if the customer's hardware is used, the timely provision of the necessary hardware by the customer. If the necessary prerequisites are not created by the customer by the agreed handover or installation date and JAMES SOLUTIONS AG has appeared on the agreed date for the handover/commissioning of the contractually agreed solution/system, a flat-rate compensation of CHF 2' will be charged for this use. 000.– due per appointment. If the customer is more than four weeks in arrears with the conditions to be created, JAMES SOLUTIONS AG is entitled to withdraw from the contract after setting a reasonable grace period. In this case, a lump-sum compensation of CHF 7,000 is due in favor of JAMES SOLUTIONS AG. If JAMES SOLUTIONS AG is in default of delivery or if JAMES SOLUTIONS AG is unable to deliver for whatever reason, the customer is not entitled to any claims for damages of any kind.
Any liability for damages of JAMES SOLUTIONS AG from services related to the commissioning is limited to CHF 0.05 million. Delivery or commissioning deadlines are also deemed to have been met if they are exceeded by a period of time that is irrelevant to the interests of the customer. All reminders and deadlines must be in writing. Grace periods must be at least 20 working days.
4. JAMES SOLUTIONS AG is liable in accordance with the statutory provisions insofar as the underlying purchase contract in the sense of OR 184 ff. JAMES SOLUTIONS AG is also liable under the statutory provisions if, as a result of a delay in delivery for which JAMES SOLUTIONS AG is responsible, the customer is entitled to assert that his interest in further fulfillment of the contract has ceased to exist.
5. JAMES SOLUTIONS AG is also liable under the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which JAMES SOLUTIONS AG is responsible; fault on the part of representatives or vicarious agents of JAMES SOLUTIONS AG is attributable to JAMES SOLUTIONS AG. If the delay in delivery is not due to an intentional breach of contract for which JAMES SOLUTIONS AG is responsible, the liability for damages of JAMES SOLUTIONS AG is limited to the foreseeable, typically occurring damage.
6. JAMES SOLUTIONS AG is also liable under the statutory provisions if the delay in delivery for which JAMES SOLUTIONS AG is responsible is due to the culpable violation of a material contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
7. Otherwise, JAMES SOLUTIONS AG is liable in the event of a delay in delivery for each completed week of delay within the framework of a flat-rate compensation for delay amounting to 0.5% of the delivery value, but no more than 5% of the delivery value.
8. Further legal claims and rights of the customer remain reserved.
9. A period of grace set by the customer for performance or supplementary performance must not be less than two weeks.
10. JAMES SOLUTIONS AG is entitled to fulfill its obligations to subcontract to third parties or to use hardware and software as well as services of third parties in whole or in part.

IV. Reservation of self-supply, force majeure and other hindrances
1. JAMES SOLUTIONS AG does not assume any procurement risk unless this is expressly agreed. If, for reasons for which JAMES SOLUTIONS AG is not responsible, JAMES SOLUTIONS AG does not receive the delivery or service from its suppliers, or does not do so correctly or on time, or if events of force majeure occur, JAMES SOLUTIONS AG will inform the customer in writing in good time. In this case, JAMES SOLUTIONS AG is entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled, insofar as JAMES SOLUTIONS AG has complied with the above information obligation and has not assumed the procurement risk. The following are equivalent to force majeure, for example: strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks through no fault of our own, operational hindrances through no fault of ours, e.g. through water, fire, machine damage, failure of the communication lines and all other hindrances which, from an objective point of view, were not caused by our fault have been.
2. If a delivery date or a delivery period has been agreed as binding and is due to events according to IV.1. If the agreed delivery date or the agreed delivery period is exceeded, the customer is entitled, after a reasonable period of grace has expired without result, to withdraw from the part of the contract that has not yet been fulfilled. The customer has no further rights. JAMES SOLUTIONS AG is also responsible for the aforementioned circumstances if they occur during an already existing delay.

V. Default of acceptance by the customer
1. If the customer is in default of acceptance or culpably violates other duties to cooperate, JAMES SOLUTIONS AG is entitled to demand compensation from JAMES SOLUTIONS AG for any damage incurred, including any additional expenses. Further claims remain reserved.
2. If JAMES SOLUTIONS AG meets the necessary legal requirements for withdrawing from the purchase contract as a result of the customer's default of acceptance and JAMES SOLUTIONS AG makes use of its right of withdrawal, JAMES SOLUTIONS AG is entitled to claim damages due to default of acceptance at a flat rate of 15% of the agreed net invoice amount to be requested from the customer. The assertion of an actually higher damage remains reserved. In this case, the flat-rate claim for damages is to be offset against the further damage caused by the delay. The customer is entitled to prove that no damage or less damage has occurred.

VI. transfer of risk
1. The risk passes to the customer as soon as the ordered goods are handed over to him or a third person carrying out the transport. If the shipment is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer from the day the goods are ready for shipment.
2. Transport and all other packaging in accordance with the packaging regulations will not be taken back. The customer is obliged to ensure that the packaging is disposed of at his own expense.
3. If the requirements of Section VI.1. are present, the risk of accidental loss or accidental deterioration of the purchased item is transferred to the customer at the point in time at which he is in default of acceptance or a debtor.

VII. Prices - Terms of Payment
1. Unless otherwise stated in the order confirmation from JAMES SOLUTIONS AG or any other written agreement, the prices of JAMES SOLUTIONS AG apply net "ex Weinfelden". In addition:
- The applicable statutory value-added tax.
- The shipping costs depending on the shipping method.
- A flat-rate packaging fee of 0.5% of the value of the goods.

Furthermore, for additional services, e.g. concepts, design proposals, commissioning, installation, programming work, training and instruction, production of interfaces, program modules, evaluation schemes, samples, etc. by JAMES SOLUTIONS AG, unless these are in separate agreements with Fixed and flat-rate prices are defined, the customer will be invoiced separately according to the time spent plus any travel costs and expenses incurred according to the currently valid price list plus statutory sales tax.
2. JAMES SOLUTIONS AG calculates the prices agreed upon when the contract was concluded, which are based on the cost factors valid at that time. If these cost factors, in particular material, wages, freight, taxes, currency conversion rates, etc., change between the conclusion of the contract and the agreed delivery time, JAMES SOLUTIONS AG is entitled to make a corresponding price change. If the customer does not accept the price adjustment requested by JAMES SOLUTIONS AG, both parties are released from the delivery or acceptance obligation for the part of the delivery contract that has not yet been executed.
3. Unless otherwise stated in the order confirmation or other written agreement, the full purchase price is due immediately and net (without deductions) to JAMES SOLUTIONS AG. For development services, an advance payment of 50% of the order value is due when the order is placed and the remaining payment is due upon delivery of the prototype to JAMES SOLUTIONS AG. The day of payment is the date of receipt of money by JAMES SOLUTIONS AG or the credit to our account. License or maintenance conditions may provide for other payment due dates. JAMES SOLUTIONS AG reserves the right to deliver all deliveries (especially at the beginning of a business relationship) against cash on delivery or prepayment. Such deliveries can also be made by parcel or postal services for a fee.
4. Payments must be made in cash, by bank transfer or by cheque. Payment transfers must be made to the bank accounts specified in our invoice. In the case of check payments, JAMES SOLUTIONS AG's claim is only deemed to have been paid when the countervalue unencumbered by recourse claims has been credited to JAMES SOLUTIONS AG's bank account.
5. The customer is only entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or have been recognized by JAMES SOLUTIONS AG. The customer can only assert a right of retention on the basis of counterclaims from the same delivery/service.
6. If the customer is in arrears with a payment, default interest of 5% above the base rate of the Swiss National Bank per calendar month will be charged without further reminder, unless JAMES SOLUTIONS AG can prove higher damage caused by default. JAMES SOLUTIONS AG is entitled to offset all payments against the oldest claims.
7. Are circumstances known or recognizable which, according to JAMES SOLUTIONS AG's due commercial discretion, give rise to reasonable doubts about the creditworthiness of the customer, including facts that were already available at the time the contract was concluded but were not known or should not have been known to JAMES SOLUTIONS AG , or became apparent after the conclusion of the contract, JAMES SOLUTIONS AG is entitled, without prejudice to further rights in these cases, to stop further work on current orders or the delivery and to demand advance payment for outstanding deliveries or the provision of JAMES SOLUTIONS AG-friendly, appropriate securities and after to withdraw from the contract if a reasonable period of grace for the provision of such securities has expired without success, without prejudice to further statutory rights.
8. The customer is obligated to compensate JAMES SOLUTIONS AG for all damage resulting from the non-execution of the contract/contracts, including lost profits. If the legal requirements for withdrawing from the purchase contract as a result of the customer's default in payment are met and JAMES SOLUTIONS AG makes use of its right of withdrawal, JAMES SOLUTIONS AG is entitled to claim damages due to default in payment at a flat rate of 15% of the agreed net invoice amount from the customer. The assertion of an actually higher damage remains reserved. In this case, the flat-rate damage caused by default is to be offset against the further damage caused by default. The customer is entitled to prove that no damage or less damage has occurred.
9. The customer undertakes to bear all costs and expenses associated with the collection of the claims of JAMES SOLUTIONS AG, such as in particular collection expenses or other costs necessary for appropriate legal prosecution.

VIII. Poor performance, liability for defects, breach of duty, notification of defects
1. Claims for defects on the part of the customer presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to OR 197-210. The goods must be examined immediately after receipt of the delivery. Recognizable defects must be reported immediately after receipt of the delivery, hidden defects must be reported in writing immediately after discovery, stating a description of the defect that is as detailed as possible. In the case of used goods, in particular so-called B-goods, JAMES SOLUTIONS AG is not liable for defects, with the exception of claims for damages and claims for reimbursement of expenses according to OR 197-210. The acknowledgment of material defects always requires the written form.
2. In the event that the purchased item is defective, JAMES SOLUTIONS AG has the right, at its own discretion, to supplementary performance through free repair or replacement delivery. In the event that the defect is remedied, JAMES SOLUTIONS AG will only bear the expenses up to the amount of the purchase price of the defective product. Defects for which the customer is responsible and unjustified complaints will be eliminated by JAMES SOLUTIONS AG on behalf of and at the expense of the customer, provided the customer is a merchant.
3. If the supplementary performance fails or if JAMES SOLUTIONS AG refuses supplementary performance, the customer is entitled to choose between withdrawing from the contract, reducing the price, claiming damages or reimbursement of expenses. A subsequent improvement is deemed to have failed after the second unsuccessful attempt, unless something else arises from the nature of the item or the defect or the other circumstances.
4. The limitation period for statutory claims for defects is 1 year, calculated from the transfer of risk. After expiry of this one-year limitation period, JAMES SOLUTIONS AG undertakes to provide the customer with a warranty for the 2nd year from the transfer of risk, limited to product replacement or product repair at JAMES SOLUTIONS AG's discretion. After this second year, there are no longer any warranty claims.

IX. Scope of Liability, Disclaimer and Limitation of Liability
1. JAMES SOLUTIONS AG is liable in accordance with the statutory provisions if the customer asserts claims for damages due to breaches of duty, breaches of essential contractual obligations or impossibility for which he is responsible, which are based on intent or gross negligence, including intent or gross negligence on the part of the representatives or vicarious agents of JAMES SOLUTIONS AG .
Insofar as JAMES SOLUTIONS AG is not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
2. Insofar as the customer is entitled to compensation for the damage instead of performance, the liability of JAMES SOLUTIONS AG is also limited within the framework of Section VIII. 3. to compensation for the foreseeable, typically occurring damage.
3. Liability for indirect damage and consequential damage is excluded unless JAMES SOLUTIONS AG has violated a material contractual obligation or JAMES SOLUTIONS AG or its executives or vicarious agents are accused of an intentional or grossly negligent breach of duty.
4. The liability of JAMES SOLUTIONS AG for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act or other mandatory statutory liability.
5. In other cases, JAMES SOLUTIONS AG is liable for all claims directed against JAMES SOLUTIONS AG for damages or reimbursement of expenses from the present contractual relationship due to culpable breach of duty, regardless of the legal reason, but not in the case of slight negligence. Liability for consequential damage and lost profit is also excluded in the case of slight negligence.
6. In the case of the above liability in IX. 3. and liability without fault, especially in the case of initial possibility and legal defects, JAMES SOLUTIONS AG is only liable for typical and foreseeable damage.
7. The exclusions and limitations of liability according to the above paragraphs apply to the same extent in favor of managerial and non-managerial employees and other vicarious agents as well as subcontractors of JAMES SOLUTIONS AG.
8. A reversal of the burden of proof is not associated with the above regulations.
9. Unless otherwise regulated above, the liability of JAMES SOLUTIONS AG - regardless of the legal nature of the asserted claim - is excluded.
10. JAMES SOLUTIONS AG does not assume any liability for the correctness and completeness of information carriers such as the Internet, documentation and data sheets. JAMES SOLUTIONS AG assumes no liability for loss or damage that arises directly or indirectly from the use of this information or the use of the contractual items, unless JAMES SOLUTIONS AG can be shown to have acted with intent or gross negligence.

X. Backup / Data Loss
1. The customer is obliged to protect himself adequately against loss of data. This includes in particular the reasonable and comprehensive data backup to prevent data loss according to the state of the art.
2. Insofar as JAMES SOLUTIONS AG is not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage, even in the event of data loss.

XI. manufacturer recourse
1. If the customer is a reseller and has been granted a purchase discount on the goods ordered, he waives his rights under Swiss law to reimbursement of the expenses he has incurred in relation to his customer under Swiss law for subsequent performance measures had to bear to consumers. This discount represents equivalent compensation within the meaning of ...

XII. retention of title
1. JAMES SOLUTIONS AG retains ownership of the purchased item until all payments from the existing current account relationship (business relationship) with the customer have been received; the reservation relates to the recognized balance. JAMES SOLUTIONS AG is entitled to take back the purchased item if the customer acts in breach of contract, particularly in the event of default in payment. The taking back of the purchased item by JAMES SOLUTIONS AG does not constitute a withdrawal from the contract unless JAMES SOLUTIONS AG has expressly declared this in writing. The seizure of the purchased item by JAMES SOLUTIONS AG always constitutes a withdrawal from the contract. After taking back the purchased item, JAMES SOLUTIONS AG is authorized to sell it;
2. In the event of enforcement measures or other interventions by third parties, the customer must notify JAMES SOLUTIONS AG immediately in writing so that JAMES SOLUTIONS AG can file a suit in accordance with Swiss law. If the third party is not able to reimburse JAMES SOLUTIONS AG for the court and out-of-court costs of a lawsuit under Swiss law, the customer is liable for the loss incurred by JAMES SOLUTIONS AG. The customer must also inform JAMES SOLUTIONS AG of all damage and changes in ownership of the purchased item.
3. The customer is entitled to resell the purchased item in the ordinary course of business; However, he already assigns to JAMES SOLUTIONS AG all claims in the amount of the final invoice amount (including VAT) of the claim of JAMES SOLUTIONS AG that accrue to him from the resale against his customers or third parties, regardless of whether the purchased item without or has been resold after processing. The customer remains authorized to collect this claim even after the assignment. JAMES SOLUTIONS AG's authority to collect the claim itself remains unaffected. However, JAMES SOLUTIONS AG undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, does not default in payment and if no application for the opening of insolvency proceedings has been filed or payments have been suspended. However, if this is the case, JAMES SOLUTIONS AG can demand that the customer informs JAMES SOLUTIONS AG of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
4. The customer also assigns to JAMES SOLUTIONS AG the claims to secure the claims of JAMES SOLUTIONS AG against him, which arise against a third party through the connection of the purchased item with a property.
5. JAMES SOLUTIONS AG undertakes to release the securities to which JAMES SOLUTIONS AG is entitled at the request of the customer to the extent that the realizable value of the securities from JAMES SOLUTIONS AG exceeds the claims to be secured by more than 20%; JAMES SOLUTIONS AG is responsible for selecting the securities to be released.

XIII. Special conditions in connection with deliveries and the development of software, other development services and prototypes
1. In the case of development services, the scope of the mutual obligations is usually specified in a specification. In addition, the regulations in these terms and conditions and these special conditions apply. If a specification has not been drawn up or has not been agreed, JAMES SOLUTIONS AG will nevertheless provide its service on the basis of these general terms and conditions and special conditions.
2. JAMES SOLUTIONS AG provides contractually agreed development services on the basis of recognized rules and the state of the art known to it during implementation, taking into account the care customary in the industry. This does not represent a guarantee in the legal sense, but only refers to the contractual condition of the item.
3. JAMES SOLUTIONS AG receives from its contractual partner all the information and documentation required for the development project and, in the case of development services related to the contractual partner’s parts, components and devices, also all necessary data and communication protocols as well as a sufficient number of test devices for test purposes .
JAMES SOLUTIONS AG is not obliged to check that the test devices, components, documentation, information and data provided to it before the start of the development project are free of defects.
4. JAMES SOLUTIONS AG is not responsible for delays in performance that are based on the customer's breach of the duty to cooperate. JAMES SOLUTIONS AG is entitled to demand reasonable compensation if the customer is in default of acceptance due to failure to cooperate.
5. The amount of the compensation is determined on the one hand by the duration of the delay and the amount of the agreed remuneration, on the other hand by what JAMES SOLUTIONS AG saves on expenses as a result of the delay or can earn by using their labor elsewhere.
6. JAMES SOLUTIONS AG is not responsible for an unforeseeable absence of the employee designated for the development project, force majeure and other events that were not foreseeable when the contract was concluded and which make the services of JAMES SOLUTIONS AG at least temporarily impossible or unreasonably difficult.
7. In connection with the delivery of software or the software contained in assemblies (firmware), the following restrictions or conditions apply as agreed: The contractual partner is aware that, according to the current state of the art, errors in software programs and in the associated documentation are not can be excluded. Therefore, the subject of the contract is software that is basically usable in terms of the program description, test version or development order or user manual. In connection with the use of software or products containing software, the contractual partner must take suitable safety precautions so that in the event of a fault, consequential damage, in particular endangerment of persons, is ruled out as far as possible. In the event of deviations in the programs from the program description or the development order asserted within 30 days of handover to the contractual partner, the contractual partner has the right to return the defective software and to demand delivery of a new program version. If rectification is not possible or if three rectifications fail, the contractual partner has the right to cancel the contract, whereby any copies made are to be destroyed. Any further warranty claims are expressly excluded. JAMES SOLUTIONS AG does not guarantee that the program functions will meet the requirements of the contractual partner or that they will work together with other programs as selected by the contractual partner. Liability for lost profits, damage to or loss of stored data and other direct or indirect consequential damage is also excluded, unless JAMES SOLUTIONS AG acted with gross negligence or willful intent. Warranty claims for software expire in any case six months after delivery.
8. In connection with the delivery and services that are provided in connection with order developments, the following restrictions or conditions apply as agreed: The scope of the contract is basically the scope of development fixed in writing between the contractual partner and JAMES SOLUTIONS AG. In case of doubt, the scope specified in the order confirmation and specification is decisive. This also applies in particular to any development and design documents that may have been contractually agreed and are to be created, as well as other documentation that is only part of the order if it is explicitly listed there and defined in terms of scope. Any form of testing such as TÜV, UL, EMV, VDE, RCA, etc. will only be carried out if this is explicitly listed and commissioned in the order volume. Otherwise, it can generally be assumed that all tests and approvals will be carried out or arranged for by the client himself and at his own expense. In the case of development orders in which an advance payment has been agreed, the obligation for JAMES SOLUTIONS AG to process the order begins at the earliest with the receipt of the agreed advance payment. Delays in delivery due to late receipt of payment are at the expense of the client. All development results are to be checked by the customer immediately after they have been handed over to the customer. When ordering series assemblies from JAMES SOLUTIONS AG - or from third-party suppliers - the development work on which the series assemblies are based is deemed to have been fully rendered, even without a separate acceptance test being required. The special conditions for the delivery of software also apply to development services that also contain software.
9. The following restrictions and conditions apply to prototypes, test samples and similar assemblies: Prototypes, test samples, test structures, engineering units and similar assemblies are principally used for development, demonstration, tests and similar processes. Their specification can deviate from the planned development goals or series components. This also applies in particular to compliance with safety and approval regulations of any kind (e.g. RoHS conformity). These products are therefore only suitable to a limited extent or not at all for use in series production. In this respect, a warranty for prototypes, test samples, test structures, engineering units and similar assemblies is also fundamentally excluded. In the case of orders that also include the delivery of series assemblies, the ordering of these series assemblies automatically counts as acceptance of the prototypes, test samples and similar assemblies.
10. Obvious defects in software, firmware, prototypes and other development services must be reported in writing within a period of two weeks after delivery or electronic transmission; otherwise the assertion of warranty rights is excluded. Deadline is sufficient for the timely dispatch.
11. This provision does not apply in the event of fraudulent concealment of the defect. Defects will be remedied within a reasonable period of time. The adequacy of the deadline is determined in particular by whether the defects could have been identified under the agreed test conditions. If no test conditions have been agreed, the typical test conditions apply as agreed. At their option, JAMES SOLUTIONS AG can also provide an equivalent replacement service. JAMES SOLUTIONS AG bears the necessary expenses insofar as these are not increased by the fact that the client wants additional or changed requirements in connection with the elimination of defects or the item has been taken to a different location than the original, unless the movement corresponds the intended use of the item.
12. Claims for defects become statute-barred in one year. This does not apply in the event of fraudulent concealment of the defect or the assumption of a guarantee in this regard. Furthermore, this does not apply to damage resulting from injury to life, limb or health, or in the case of intent or gross negligence.
13. In the event of failure, refusal or unreasonableness of subsequent performance (repair or replacement), the customer can choose to reduce the purchase price or withdraw from the contract. In the case of only a minor breach of contract, in particular in the case of only minor defects, he is not entitled to withdraw from the contract. Claims for defects for compensation for damage or expenses remain unaffected by this provision. The following also applies to this:
a. JAMES SOLUTIONS AG is basically liable for its own intentional and grossly negligent actions, as well as for those of its legal representatives, executives and other vicarious agents.
b. In addition, it is basically liable in the event of culpable violation of such contractual obligations that are indispensable for the achievement of the purpose of the contract (so-called cardinal obligations); in this case, it is also liable for the negligent actions of its vicarious agents.
c. JAMES SOLUTIONS AG is liable for the full amount of damage only for its own gross negligence and that of its legal representatives and executives. For the rest, their liability is limited to the replacement of the typically foreseeable damage.
i.e. Otherwise, contractual and non-contractual liability is excluded.
e. Claims for defects become statute-barred in one year. This does not apply in the case of intent or gross negligence.
f. None of the above limitations of liability apply in the event of injury to life, limb or health. They also do not apply to claims for defects in the event of fraudulent concealment of the defect or the assumption of a guarantee in this regard. Liability under the Product Liability Act remains unaffected.
14. The contracting parties are obliged to keep secret for an indefinite period of time all information they have access to in connection with the contract that is designated as confidential or that is recognizable as business and trade secrets due to other circumstances and not to pass it on to third parties or to disclose it in any other way exploit.
15. For the application on which your order is based, the customer receives the exclusive, licensable, transferable, and free of charge rights of use to the technical knowledge that arose as a result of the development carried out on his behalf. In this respect, the contractor retains a non-exclusive right of use for the application on which the order is based for his own scientific research and development purposes. JAMES SOLUTIONS AG can freely dispose of the technical knowledge outside of the application, ie grant rights of use within the framework of research and/or development contracts with third parties and also without research and/or development contracts with third parties, in these cases without the consent of the original of the customer, in whose project the corresponding technical knowledge arose, for the granting of rights of use.
16. For the application on which his order is based, the client receives the exclusive, licensable, free usage rights to the copyright-protected results that arose from the development carried out on his behalf. JAMES SOLUTIONS AG retains a non-exclusive right of use for the application on which the order is based for its own scientific research purposes. JAMES SOLUTIONS AG can freely dispose of the copyrights outside of the application, ie grant usage rights within the framework of research and/or development contracts with third parties and also without research and/or development contracts with third parties, in these cases without the consent of the original client , in whose project the copyrights arose, for the granting of rights of use.
17. For the application on which his order is based, the client receives the exclusive, paid rights of use to the results protected by industrial property rights that have arisen as a result of the development carried out on his behalf. In this respect, JAMES SOLUTIONS AG retains a non-exclusive right of use for the application on which the order is based for its own scientific research purposes. JAMES SOLUTIONS AG can freely dispose of the industrial property rights outside of the application, ie grant rights of use within the framework of research and/or development orders with third parties and also without research and/or development orders with third parties, in these cases without the consent of the original of the client, in whose project the industrial property rights arose, for the granting of rights of use.
18. JAMES SOLUTIONS AG can initially register any invention created during the project work in its own name and at its own expense for intellectual property rights and inform the client of the successful registration after receipt of the acknowledgment of receipt from the respective patent office. No later than 5 months before expiry of the priority period, the contracting parties will agree in which other countries corresponding applications are to be made in whose name and at whose expense. If a contracting party has no interest in registering in other countries, pursuing applications or maintaining granted property rights, he is obliged to inform the other contracting party of this without culpable hesitation, so that the other contracting party can take the necessary measures on its own while complying with all deadlines can take costs. The contractual partner offering these rights must – if necessary – cooperate with these measures (e.g. notarial transfer of a patent).
19. If already existing KNOW-HOW, copyrights and industrial property rights (inventions, registrations, granted property rights) of JAMES SOLUTIONS AG are required for the fulfillment of the order and/or for the utilization of the development results, the customer receives a non-exclusive, under licensable, non-transferable, paid right of use.
20. The conditions for the granting of rights of use according to the above conditions are - if necessary - specified in a separate agreement between the contracting parties.
21. Should JAMES SOLUTIONS AG violate existing industrial property rights (copyrights, patent rights, utility model rights, etc.) of any kind within the scope of their assignment, the risk for this lies exclusively with the client. The customer shall ensure that no property rights of third parties are infringed upon in the context of the assignment. JAMES SOLUTIONS AG retains its right to remuneration even if such an infringement has occurred.

XIV. Place of Performance, Jurisdiction, Applicable Law, Effectiveness, Miscellaneous
1. Place of performance for deliveries and payments is the headquarters of JAMES SOLUTIONS AG in Frauenfeld TG.
2. Swiss law applies to the exclusion of the reference standards; the application of international private law and the UN Sales Convention is excluded.
3. In the event of a dispute, the parties will first try to reach an amicable agreement.
Should this not succeed, the exclusive place of jurisdiction for all disputes arising from the contractual relationship, including cheque, bill of exchange and document processes (if the contractual partner is a merchant within the meaning of the ZGB/OR or has no general place of jurisdiction in Germany) is the registered office of JAMES SOLUTIONS AG in Frauenfeld (Thurgau, Switzerland). JAMES SOLUTIONS AG reserves the right to sue the contractual partner at the court responsible for his place of residence.
4. Should individual provisions of the contract with the contractual partner, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
The wholly or partially ineffective regulation will be replaced by a regulation whose economic success comes as close as possible to the ineffective one.