These General Terms and Conditions (“GTC”) of Futureworks AG (“Futureworks”) shall apply to all contracts, services and deliveries between the Client and Futureworks. Client means any natural person or legal entity with which Futureworks has business relations. Conditions and agreements at variance shall require written confirmation by Futureworks. These GTC shall apply to any provision of Integrated Services (as defined below in section 1) by Futureworks for any one of its clients (the “Client”) under an offer and applicable acceptance or other agreement (the “Agreement”) (each of Futureworks and the Client is a “Party”, and collectively they are the “Parties”).
Unless the Parties agree in writing to any individual contractual terms which shall govern the provision of Integrated Services by Futureworks for the Client, these GTC shall apply exclusively. Individual contractual terms at variance from them which prevail over these GTC shall make reference to the relevant provision of these GTC which shall be replaced. Any GTC of the Client shall not apply.
The services provided by Futureworks to the Client under the Agreement include a wide range of consulting and services, such as business design, service design, experience design, brand management and agile coaching (together referred to as the “Integrated Services”).
Futureworks shall make its expertise and know-how available to the Client and shall assign personnel with qualifications appropriate to the tasks involved. Futureworks may replace personnel.
Futureworks may subcontract the provision of the Integrated Services to third parties as sub-contractors. Futureworks shall be responsible for the careful selection, instruction and supervision of the subcontractor. Futureworks may propose or make available software products developed by or licensed by Futureworks, the Client or third parties. Futureworks shall assume no liability for the use of such Client or third party software and other products if such products have been supplied directly by the third parties and not as sub-contractors to Futureworks.
Futureworks shall support the Client's personnel responsible for the implementation of the Integrated Services.
The Client shall provide Futureworks, in a timely manner and without request, with any information and documentation as well as support and the necessary equipment, including but not limited to hardware, software and the right to use and access intellectual property, that are necessary or useful for the provision of the Integrated Services.
The Client shall confirm the completeness of the work and goods deliveries upon delivery. The Client shall notify Futureworks in writing within five days of delivery of the goods of any shortage or defects. In such a case, Futureworks shall have the right to remedy any shortage or defect within a reasonable time. Changes that were not within the scope of the offer or the order shall be compensated separately by the Client.
The Client shall acquire the legal ownership of work deliveries manufactured by Futureworks for and transferred to the Client under the Agreement upon full payment of the compensation in accordance with section 5 below. If the performance of the Integrated Services under the Agreement results in the creation of intellectual property such as patents, copyrights and other intangible assets or know-how, then such property shall remain the exclusive property of Futureworks and Futureworks shall grant the Client a right to use the property at no further charge. Futureworks shall be obliged not to use any client-specific elements among the work deliveries created under the Agreement that reflect the corporate profile of the Client for other clients.
The Client recognises that the compensation payable for the provision of the Integrated Services by Futureworks in accordance with this section 5 is owed to Futureworks for an innovation process, which cannot be entirely planned ahead in detail and which, in certain circumstances, may not be easily measurable.
The Client shall pay for all Integrated Services provided by Futureworks under any written agreement or a counter-signed offer on a time basis (the “Service Fees”). The hourly rates may be adjusted to the current circumstances annually. Incidental project costs, such as material, copies and the like shall be invoiced to the Client as a percentage mark-up on the service fees.
The Client shall be obliged to reimburse Futureworks for all out-of-pocket expenses incurred in connection with the provision of the Integrated Services, including but not limited to travel expenses and accommodation.
Unless the Parties agree otherwise in writing, Futureworks shall invoice the service fee, incidental project costs, material and expenses as incurred at the end of each work package. Agreed maintenance contracts shall be invoiced immediately upon signature and renewal of the contract in advance, at the beginning of each calendar year. Agreed licence fees shall be invoiced each year in accordance with section 5.5. Unless the Parties agree otherwise, the Client shall make payment within 30 days of the date of the invoice.
If the Parties agree upon a quantity, volume and/or unit cost licence for an object of the contract developed by Futureworks, the licence fee shall be reported by the Client at the end of a calendar year, a statement issued and payment transferred to Futureworks by the 20th of the following month.
The Client shall be obliged to account separately for the delivery of objects of the contract. Futureworks shall have the right to have such accounting audited by an auditor. The costs of the audit shall be borne by Futureworks but shall be assumed by the Client if the audit gives rise to a claim by Futureworks against the Client.
The Client shall bear all sales, use, service or other taxes, including but not limited to value added taxes (VAT), and any freight and insurance costs and customs duties on imports arising from or in connection with the performance of the Integrated Services and the work deliveries.
Upon premature termination or cancellation of an agreed project in accordance with section 10, the Client shall be obliged to pay the work, expenses, project costs and service fees incurred up to the time of the termination. The Client shall inform Futureworks of the premature termination in writing.
Under the Agreement, “Confidential Information” shall mean any and all technical and non-technical information relating to existing, future and/or proposed products and services of each of the Parties, including but not limited to expertise, copyright, trade secret, techniques, sketches, drawings, models, inventions, know-how, processes, equipment, algorithms, software programs and software source codes and formulas. Confidential Information may be communicated in writing, orally or electronically.
The Party to which Confidential Information of the other Party is disclosed (the “Receiving Party”) by the other Party (the “Disclosing Party”) shall be obliged to keep such Confidential Information strictly secret and shall not disclose it to any unauthorized third party without the prior written consent of the Disclosing Party. In particular, the Receiving Party shall be obliged to use such Confidential Information only for purposes of the Agreement, and to ensure that a standard of strict confidentiality is applied by the Receiving Party’s employees, agents and sub-contractors in order to prevent its disclosure to third parties.
The Receiving Party may disclose Confidential Information, provided such information
If the fact that Confidential Information belongs to one of the above categories is open to doubt, the Receiving Party shall contact the Disclosing Party without delay and resolve the doubt.
The confidentiality obligation contained in this section 6 shall survive termination of the Agreement for a period of three years.
The Client shall be obliged not to solicit any employees of Futureworks and its associated companies involved in the provision of the Integrated Services during the provision of such services and for one year thereafter.
Following publication by the Client of the Integrated Services or the work deliveries arising from the Agreement, Futureworks may use them within the terms of the confidentiality agreement in section 6 above for its own customer advertising and other PR purposes. Futureworks shall inform the Client of such use.
Futureworks shall be obliged to provide the Integrated Services in the interests of the Client in a prudent and professional manner.
Futureworks shall be liable only for direct damage suffered by the Client caused by its gross negligence or wilful misconduct. In no event shall Futureworks be liable for any damage resulting from loss of data or for loss of profits or indirect or consequential damage. Futureworks shall not be liable for any damage resulting from or arising out of the implementation of the Integrated Services within the Client's organisation and/or caused by an implementation partner mandated by the Client.
For the purposes of this section, “Futureworks” shall include its directors, employees, sub-contractors and suppliers and the “Client” shall include anyone acting on behalf of the Client.
Both Parties shall have the right to terminate the Agreement at any time upon 30 days prior written notice in the event that the other Party breaches a material obligation under the Agreement and fails to remedy that breach within a period of 30 days following receipt of written notice describing the breach in adequate detail. The right to terminate at any time under article 377 of the Swiss Code of Obligations (CO) shall be excluded.
Futureworks may terminate the licence granted under the Agreement at any time with immediate effect if the Client neglects or fails to perform or observe its obligations under sections 4 (Commercial protection rights), 6 (Confidentiality) or 8 (Publication).
In the event of termination, (i) the Client shall return to Futureworks all software products developed or supplied as part of the Integrated Services as well as any copies thereof and shall confirm in writing that all such software products and copies have been returned, and (ii) each Party shall return to the other all Confidential Information.
These GTC and agreement between the Client and Futureworks shall be governed by the laws of Switzerland, without regard to the principles on the conflict of laws embodied in Swiss private law. Any dispute arising out of or in connection with these GTC shall be subject to the non-exclusive jurisdiction of the ordinary courts of Zurich 1.