General Terms and Conditions of Numarics AG
1. Service provider
Numarics AG, Wiesenstrasse 10A, 8952 Schlieren, a public limited company with its registered office in Zurich, Switzerland (CHE-412.560.638; hereinafter Numarics AG) and/or a domestic or foreign company held by Numarics AG (company incl. branches, permanent establishments and the like) (cf. regarding current company structure https://numarics. com) (Numarics AG and/or one or all of the companies held by it hereinafter each individually or together the Numarics) shall provide the services/services and/or products (hereinafter the Services) to the business customer resident in Switzerland (hereinafter the Customer; the Customer and Numarics AG hereinafter each individually a party or together the Parties).
2. Scope of application / inclusion of the GTC
These General Terms and Conditions (hereinafter the GTC) apply to all services provided by Numarics to the Customer, subject to (i) deviating written agreements between the parties and subject to (ii) mandatory statutory provisions.
By creating a Numarics user account (hereinafter the user account) or by sending orders, the customer simultaneously accepts these GTC. General terms and conditions of the customer (in particular also those which contradict and/or deviate from these GTC) do not become part of the contract, unless Numarics AG expressly agrees to them in writing.
In each case, the GTC apply in the version valid at the time of the use of Numarics services or the sending of orders and accepted by the customer (cf. also section 31 (Changes)).
The customer is recommended to read through the GTC to be accepted by him before using services or sending orders and to print them out and/or download and save them as a pdf document.
3. User Account
Before the customer can claim Numarics services, he must register online at https://numarics.com and create a user account.
The customer is obliged to provide truthful information about his personal details and to keep the access data secret and not to make it accessible to third parties. With the creation of the user account, the person representing the customer confirms to be authorised to open a user account in the name of the customer. Numarics reserves the right to delete a user account at any time and without giving reasons or to block access to the user account.
The customer is obliged to contact Numarics AG immediately and to inform Numarics AG, if he has to assume that his user account is or has been misused by third parties. In principle, the customer is responsible for all orders or contract conclusions (hereinafter the orders or contracts), which are made using his user account. His responsibility does not apply if he proves that he informed Numarics immediately and in advance and did not violate any duties of care in handling his user account.
Numarics stores the data concerning orders or assignments. The customer can view the order and order data in the user account.
Numarics AG concludes contracts online with customers. By sending orders, the person placing the order declares to be authorised to place orders on behalf of the customer.
If Numarics AG should conclude a contract with a customer who is not legally capable to act or a customer who is not domiciled in Switzerland by mistake and/or due to incorrect information provided by the customer, Numarics AG reserves the right to withdraw from the contract without any cost consequences for Numarics AG.
5. Ordering procedure / Conclusion of contract / Subject matter of the order
All information accessible on https://numarics.com about Numarics' services is non-binding and may change at any time, unless it is expressly designated as binding.
The customer selects the service(s) to be ordered from the offer and adds them to the shopping basket. Until the order is sent, the customer has the option of changing the contents of the shopping basket or emptying it in whole or in part. Before the order is completed, the customer is shown an order overview which shows the hourly rate (excl. and incl. VAT) and/or, if a flat rate/fixed price (hereafter the package price) applies, the package price (incl. VAT). By clicking on the button "Order package/service subject to payment", the customer orders the services contained in the shopping basket and thereby submits a binding offer to Numarics to conclude the contract. At the same time, the customer accepts these GTC.
Numarics AG confirms receipt of the order by means of an automatic e-mail, which contains the order summary (hereafter the order confirmation). However, this order confirmation does not represent an acceptance of the offer by Numarics AG.
The acceptance of the offer and thus the conclusion of the contract are only effected by the delivery of a written (by letter or via electronic data transmission) order confirmation (hereinafter the order confirmation) by Numarics AG and/or by the execution of the order by Numarics.
The subject of the order to be provided by Numarics AG as well as its content, services and fee result from the order confirmation addressed to the customer. Confirmations of the customer that deviate from this are only valid if they have been expressly accepted by Numarics in writing.
6. Time Data
Terminangaben und Zeitbestimmungen (zusammen hiernach die Zeitangaben) sind für Numarics AG nur dann verbindlich, wenn sie von Numarics AG ausdrücklich und schriftlich bestätigt worden sind. Bestätigungen erfolgen unter der Bedingung, dass der Kunde den ihm obliegenden Mitwirkungspflichten rechtzeitig nachkommt. Soweit Numarics AG die übertragenen Arbeiten infolge von durch Numarics zu vertretenden Versäumnissen nicht innerhalb der vereinbarten Zeiten realisieren kann, hat der Kunde Numarics AG eine angemessene Nachfrist zur Vertragserfüllung anzusetzen.
7.Order execution / involvement of third parties
As a rule, Numarics AG will execute the orders through Numarics' own employees. As far as Numarics considers it necessary or useful, external specialists, experts and other auxiliary persons can be called in for the execution of the order. When using such third parties, the liability of Numarics is limited to the careful selection, instruction and supervision of the same.
8.Exchange of information / data processing
The customer agrees that Numarics may use electronic media such as telephone and e-mail (in particular also unsigned and unencrypted e-mails) for their communication within the scope of order execution.
Numarics may process the information that comes to its knowledge within the scope of the contract execution, in particular also any personal data, in the various jurisdictions in which Numarics and/or any third parties legitimately called in are or are domiciled. Numarics AG shall take appropriate measures to ensure that persons who perform system support or control functions within the scope of the processing procedure are subject to the respectively applicable professional, professional, data protection and other legal provisions, in particular the obligation to maintain confidentiality. The customer acknowledges that the respective applicable provisions may not offer the same level of protection as Swiss law.
Numarics is entitled to record, store and process (personal) data of which it becomes aware in connection with the execution of the contract within the scope of the order using modern data processing systems. Numarics is also entitled to have its IT system serviced by external companies via remote maintenance.
Numarics is also entitled to use web/cloud tools and to have (personal) data processed by these. At present, Numarics works in particular with the following web tools:
- 1Password for the secure storage and encryption of passwords within Numarics (this is a service of AgileBits Inc. in Canada for which we have chosen their independent server instance in Europe; for further information, in particular also on data processing, see the data protection provisions at https://1password.com/legal/privacy/,
- Apple for the operation of the Mobile App incl. Apple products such as TestFlight and other services (this is a service of Apple Inc. in the United States of America; for further information, in particular also on data processing, cf. the General Terms and Conditions under https://www.apple.com/legal/internet-services/itunes/chde/terms.html);
- Google for the operation of the Mobile App, data processing, data retention, etc. incl. Google Suite, Google Drive (independent server instance in Europe), Google+ Sign-In, OneDrive Authentication, Google Website Optimizer, Google Cloud Platform (independent server instance in Switzerland), Google Cloud Storage, Google App Engine, Google Analytics for Firebase, Firebase Performance Monitoring, Firebase Remote Config, Firebase Crash Reporting and other services (this is a service of Google Ireland Limited in Ireland; for further information, in particular also on data processing, see the General Terms and Conditions at https://policies.google.com/terms?hl=de and https://firebase.google.com/terms),
- HubSpot incl. HubSpot Mail, HubSpot Invoice and other services (this is a service of HubSpot, Inc. in the United States of America; for further information, in particular also on data processing, see the General Terms and Conditions at https://legal.hubspot.com/terms-of-service,
- LinkedIn this is a service of LinkedIn Ireland Unlimited Company in Ireland; for further information, in particular also on data processing, cf. the General Terms and Conditions under https://www.linkedin.com/legal/user-agreement,
- MailChimp for sending mass emails (this is a service provided by MailChimp in the United States of America; for further information, in particular also on data processing, see the General Terms and Conditions at https://mailchimp.com/legal/terms,
- Slack for communication within Numarics and with third parties (it is a service of Slack Technologies Limited in Ireland; for further information, in particular also on data processing, see the General Terms and Conditions at https://slack.com/intl/de-de/terms-of-service/user);
- WordPress as content management system for the website (it is a service of the WordPress Foundation in the United States of America; for further information, in particular also on data processing, see the General Terms and Conditions at https://de.wordpress.com/tos/).
The customer is aware that as a result of the exchange of information as described in this clause, there is an increased risk that data may be unlawfully viewed or influenced, lost or arrive late. In this context, the customer shall indemnify Numarics against any liability or hold Numarics fully harmless against any claims by third parties, unless Numarics has demonstrably intentionally or grossly negligently omitted elementary obligations for secure or error-free transmission.
9.Treatment of confidential information
Numarics AG undertakes to treat as confidential all entrusted business, operational, technical or other confidential documents, data and information relating to the customer or his employees and customers (hereinafter the confidential information) obtained during and prior to the performance of the contract. Numarics AG undertakes to use all confidential information only for the performance of tasks in accordance with the contract, to store it carefully and, in particular, to protect it appropriately against unauthorised (incl. electronic) access. With regard to confidential information, Numarics AG shall comply with the applicable regulations of the law and of its (domestic or foreign) supervisory authorities and professional organisations.
The obligation to confidentiality does not apply (a) insofar as the disclosure of confidential information is part of the content of the order, (b) insofar as the disclosure of confidential information is necessary to protect justified own interests, as well as (c) if Numarics is obliged to disclose on the basis of the law or an order of a court, an authority or a regulator (including self-regulatory organisations).
Numarics may disclose confidential information in the following cases in particular: (i) to third parties who are subject to a legal and/or contractual duty of confidentiality, insofar as this is necessary for the provision of the services (for example if Numarics uses third parties as auxiliary persons), (ii) to other employees of Numarics who do not fulfil the contract, insofar as this is necessary for the performance of quality controls, and/or (iii) to legal advisors, insurers and the risk management of Numarics in connection with liability and responsibility issues and/or other legal issues.
Confidential Information received from the Client shall be returned or destroyed or deleted as directed by the Client upon completion of the Work. This does not include (i) the retention of copies where required by law, professional or self-regulatory body guidelines or court, governmental or regulatory (including self-regulatory) order and (ii) backup copies made in accordance with standard business practice and through an automated backup system.
These obligations shall apply both during the period of performance of the contract and after its termination.
10. Exchange of master data of the customer
Master data of the client includes client name, address and contact persons (incl. their contact details), general designation of the mandate type, risk assessment and key financial data. To the extent necessary, Numarics may exchange such master data with other Numarics companies and/or third parties, in particular for the following purposes:
- for financial reporting,
- for the coordination of the client and mandate acceptance process as well as for ensuring independence and avoiding conflicts of interest
- to plan and coordinate mandate work, and
- to clarify client needs and to communicate in this regard.
11. Place of performance
Numarics generally provides its services on its own platform / its own systems (subject to the use of third-party data processing systems as specified in section 8 Exchange of information / data processing). As far as desired and/or necessary for the fulfilment of the contract, Numarics will carry out the work at the location of the customer or a third party. The travel time required for this is charged at the agreed rates, unless otherwise agreed in writing (cf. Clause 23 (Fee claim)). In the case of external work, the customer is responsible for ensuring that Numarics has authorised access to the premises and, if necessary, to the data, information and systems available there. The customer shall indemnify Numarics and hold Numarics fully harmless against any claims that third parties may make against Numarics in the absence of the necessary authorisations.
12.Cooperation obligations of the customer
As the client, the customer is obligated to create all legal and organisational prerequisites on his part as well as to provide other necessary cooperation so that Numarics can properly perform the contractual services. In particular, the customer shall provide all documents and information without special request and make the declarations that Numarics requires for the proper execution of the order. In particular, the customer must inform Numarics in good time of the industrial property rights of third parties, special technical requirements or official regulations.
As an agent, Numarics AG is authorised to legally represent the customer. For this purpose, the customer grants Numarics AG a separate written power of attorney. As long as the customer has not fulfilled these obligations to cooperate, Numarics is entitled to stop the work or not to start it at all, irrespective of any current deadlines or agreed time specifications. Furthermore, the customer is obligated to inform Numarics of all changes that occur with him and that could be of significance for the execution of the order. Subject to a special mention in the description of the scope of services, Numarics is not obliged to check the information and documents received from customers as well as the instructions given for their factual correctness and formal completeness. Rather, Numarics may assume that documents, information, declarations and instructions are correct in content and complete as well as factually binding. If the customer violates duties to cooperate, Numarics AG is entitled to invoice the customer for any additional expenses as well as any damage incurred.
13. Binding nature of the work results
Reports, expert opinions, statements, presentations, etc. prepared by Numarics are only binding upon their legally valid signature by Numarics. In the case of other work results, the binding nature is to be recorded by Numarics in a comparable manner in a corresponding final letter. Drafts, interim results or oral information may contain deviations from the signed work result and are therefore always not binding.
14. Intellectual property and other rights
Any work results (such as reports, expert opinions, statements, presentations, studies, evaluations, concepts, graphic designs, texts, electronic data, computer programs, etc.) as well as the associated intellectual property and other rights (hereinafter the property rights) remain the sole property of Numarics.
The customer has a right of use to the work results created for him by Numarics within the scope of the order, which is exclusively intended for his own use (this also includes making the work results available to creditors and shareholders). This right of use is neither transferable nor exclusive. The work results, or parts and excerpts thereof, may only be further processed, changed, published, reproduced, passed on or otherwise distributed by the customer with the consent of Numarics AG, unless this is expressly the content of the order and is so recorded in writing. Any further property rights of third parties remain reserved. Special formal requirements regarding the transfer of property rights remain reserved in all cases.
15. Data protection
Numarics will process the personal data collected in the context of the provision of services (such as names, addresses, e-mail addresses) in accordance with the applicable data protection legislation. In particular, Numarics AG has taken appropriate technical and organisational measures to adequately protect personal data against loss and unauthorised access. Numarics is authorised to pass on personal data to third parties within the framework of the fulfilment of the contract. Numarics AG shall ensure by means of appropriate measures that third parties process the personal data in compliance with the applicable data protection legislation. Numarics, as well as any third parties called in by Numarics, may use personal data in the following ways in particular:
a. To verify requirements for opening a user account,
b. to verify requirements for the conclusion of a contract,
c. for address validation,
d. to fulfil contractual obligations towards the client,
e. to prevent unlawful use of the services,
f. for invoicing,
g. for financing and collection purposes, and
h. for the preparation of creditworthiness and credit reports.
The Personal Data disclosed by the Customer to Numarics shall be stored at Numarics for as long as this is necessary for the processing of the order or Numarics has a justified interest in the storage (e.g. if Personal Data is required to enforce or defend against claims, for archiving purposes and to ensure IT security). The customer acknowledges that longer retention periods may result from mandatory applicable law.
The customer has, within the framework of the applicable law, the following rights in connection with the processing of his personal data:
- he has the right to know which Personal Data Numarics processes about him;
- he may at any time revoke or restrict his consent to the processing of Personal Data;
- he also has the right to request that incorrect personal data be corrected or that personal data be deleted;
- he/she also has the right to receive Personal Data on a computer-readable data carrier.
The customer acknowledges that restrictions on processing or the deletion of personal data may result in Numarics AG no longer being able to fulfil its contractual obligations towards the customer.
In the event of questions or concerns regarding the processing of his personal data, the customer may contact the following correspondence address: Numarics AG, Wiesenstrasse 10A, 8952 Schlieren, e-mail: email@example.com.
Detailed information on data protection can be found in the data protection declaration, which forms an integral part of these GTC.
Numarics AG guarantees the careful execution of the agreed services. Under no circumstances does Numarics AG owe or guarantee the achievement of a specific economic or legal success or goal.
17. Inspection obligations / notices of defects
The work results are to be checked immediately by the customer. Any complaints must be made in writing (by letter or via electronic data transmission) to Numarics AG within 30 (thirty) calendar days of notification of the work result. Defects that cannot be readily detected are to be objected to by the customer immediately after discovery. Notifications of defects do not entitle the customer to retain the remuneration owed to Numarics AG.
18. Duration of the warranty
The warranty of Numarics AG lasts one (1) year from notification of the work result. Any warranty claims are forfeited if the customer changes the work result without the consent of Numarics AG or does not follow recommendations made therein.
19. Fulfilment of the warranty / limitation of the warranty
Numarics AG fulfils the warranty by, at its own discretion, rectifying a defect free of charge or carrying out the transferred work again. Any further obligation - including withdrawal from the contract or reduction of the fee - is excluded.
In particular, Numarics AG is not liable for consequential harm caused by a defect or indirect damage, such as loss of profit, unrealised savings, work unilaterally arranged by the customer with third parties, the customer's own expenses, claims of third parties, damage as a result of data loss, etc.
20. Exclusion of warranty
Excluded from the warranty are damages caused by force majeure (this includes in particular natural events, mobilisation, war, riots, terrorism, epidemics / pandemics, significant operational disruptions, power failure, interruption of telecommunications lines, in particular those of the Internet, occurrence of harmful software, labour disputes as well as official measures, which prevent Numarics from fulfilling its contractual obligations, and all other reasons which cannot be reasonably controlled by Numarics and any third parties called in by it), incorrect or delayed fulfilment of the customer's obligations to cooperate or for other reasons for which Numarics AG is not responsible.
21. Limitation of liability / exclusion
Numarics AG is only liable for damages of the customer, insofar as these have their direct cause in a proven intentional or grossly negligent breach of contractual obligations or other duties of care by Numarics AG. As far as legally permissible, any further liability from contract or from another legal ground is expressly excluded.
The scope of liability of Numarics AG in connection with services rendered for the customer is limited to the sum of the fee for the order affected by a defect.
22. Cost estimates
Any cost estimates are prepared by Numarics AG on the basis of the instructions, information and data provided by the customer; they are of a binding nature.
23. Fee claim
Insofar as no flat rate is applied and no special fee agreement has been made with the customer, Numarics AG's fee claim is calculated according to the effective time spent in accordance with the hourly rates customary in the industry as communicated in the order process and confirmed in the order confirmation.
24. Reimbursement of expenses / Third party fees / Value added tax
In addition to the fee claim, Numarics AG is entitled to reimbursement of out-of-pocket expenses, third-party fees (including their out-of-pocket expenses) and/or value added tax, insofar as such are incurred. Expenses for typical secretarial work, telephony and e-mail (together hereinafter referred to as "small expenses") are deemed to be already covered by the fee claim. Any further expenses, e.g. for travel, meals, overnight accommodation and postal charges, which, at Numarics' discretion, exceed the usual scope, shall be invoiced additionally. The customer undertakes to settle the fee claims of third parties (including their expenses) directly and to indemnify Numarics from obligations entered into or to hold Numarics fully harmless.
25. Advances on costs / interim invoices
Unless otherwise agreed, Numarics AG may demand cost advances on fees and expenses from the client and issue interim invoices at any time.
Any cost advances are made independently of any cost estimates. They also do not represent an estimate of the total costs (still) to be incurred in the matters. The actual costs may be higher or lower.
The account information for cost advances can be found in the order confirmation. As long as the advance payment of costs has not been received by Numarics AG, Numarics will generally not begin with the provision of the service or can stop any work that has begun at any time, irrespective of any ongoing deadlines or agreed deadlines.
With regard to default in payment, see section 27 (Default in payment / right of retention) below.
26. Invoicing / terms of payment / offsetting prohibition
Numarics AG will invoice the customer for fees and other claims.
Orders online at https://numarics.com can be paid by invoice (incl. standing order by bank transfer), credit card, Postfinance or PayPal. Credit card and Postfinance payments are processed by Datatrans AG, Stadelhoferstrasse 33, 8001 Zurich (www.datatrans.ch). The credit card information provided by the customer in the order process is transmitted to Datatrans AG via an encrypted connection (SSL). Invoices are due for payment within 14 (fourteen) calendar days from the date of the invoice (hereinafter the payment period), strictly net without deductions. Payment agreements are to be granted expressly and in writing (by letter or via electronic data transmission) by Numarics AG.
The offsetting of any claims of the customer with claims for fees and/or expenses of Numarics is excluded.
27. Default in payment / reminder fees / right of retention
After expiry of the payment deadline, the customer is automatically in default of payment without further reminder. Should reminders be necessary, Numarics AG is entitled to charge the following reminder fees: 1st reminder: CHF 10 (incl. VAT); 2nd reminder: CHF 20 (incl. VAT); 3rd and final reminder: CHF 50 (incl. VAT). In the event of unsuccessful reminders, the invoice amounts can be assigned to a company commissioned with collection after the third reminder. In the event of collection by third parties, the customer shall owe additional fees for their collection efforts. The company entrusted with the collection will claim the outstanding amounts in its own name and for its own account and may charge additional processing fees. If the customer is in default of payment in whole or in part, all outstanding amounts, which the customer owes Numarics AG under any title, become due immediately and Numarics AG can claim these immediately and stop any further provision of services to the customer, irrespective of any current periods or agreed deadlines.
If the customer misses a payment deadline, Numarics is also entitled to retain any documents, files and/or data from the contractual relationship created by it or in its possession until payment has been received.
28. Duration / Termination
The contract is concluded for an indefinite period.
Both parties can terminate the contractual relationship at any time in writing (by letter or via electronic data transmission) with immediate effect. Services and expenses rendered by Numarics until then are to be paid in full by the customer. Claims for damages by Numarics against the customer due to untimely termination remain reserved. Subject to deviating mandatory legal provisions, the order placed does not expire with the death, declaration of disappearance, loss of capacity to act or bankruptcy of the customer.
29. Document destruction
Numarics is entitled to destroy any hand files after the expiry of ten years from the settlement of the matters without prior request.
30. Applicable law and place of jurisdiction
These GTC as well as the contracts concluded on the basis of these GTC are subject to substantive Swiss law to the exclusion of (non-mandatory) conflict of laws. The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC and the contracts concluded on the basis of these GTC is the city of Zurich, whereby Numarics AG is also free to take legal action against the customer at his domicile or before any other competent court.
Numarics AG reserves the right to adapt the GTC at any time. Numarics AG shall inform the customers in advance about changes to the GTC in a suitable manner. If the changes are disadvantageous for the customer, he can terminate the contract with Numarics AG in writing up to ten (10) calendar days before the change comes into force. If he fails to do so, he accepts the changes, in particular also with reference to orders already in progress. The amended GTC are also made available online at https://numarics.com (in the user account).
32. Severability clause
Should any provision of these GTC be or become void or ineffective in whole or in part or contain loopholes, this shall not affect the validity of the remaining provisions, unless this would be unreasonable for one of the parties. In such a case, the parties undertake to replace or supplement this void, invalid or missing provision with a valid provision that comes as close as possible to the hypothetical intention of the parties and the original meaning and purpose of the void or missing provision.
© as of March 1st 2021