These General Terms and Conditions (GTC) govern the relationship between Almakom SA (hereinafter referred to as "Almakom") and its clients (hereinafter referred to as "Client").

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1. Scope of Application and Validity

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1.1 These General Terms and Conditions (GTC) govern the conclusion, content, and execution of contracts relating to the acquisition of complete computer systems, the development of specific software, as well as all other products and services subject to a business contract.

1.2 The Client attaches the applicable GTC to its tender, which are deemed accepted by Almakom at the moment it submits a written offer.

1.3 Any divergence from the offer with respect to the GTC must be explicitly indicated in the specifications or the offer and must—under penalty of invalidity—be mentioned in the contract.

 

2. Offer

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2.1 The offer and demonstrations are free of charge. Any models and/or POCs (proof of concept) are billed separately by Almakom.

2.2 If its offer differs from the Client's tender, Almakom explicitly indicates this.

2.3 If Almakom does not specify a validity period for its offer, it is bound by it for three months from the date it was made.

2.4 Before the contract is signed or the offer (order) is accepted in writing, either party may withdraw from negotiations without charge, subject to clause.

 

3. Products and Services

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The type, scope, and characteristics of the products and services correspond to the offer as accepted or resulting from the contract. The contract may refer to other documents.

 

4. Execution

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4.1 The project is carried out using recognized management methods. Almakom regularly informs the Client about the progress of the work and obtains all required specifications. It also informs the Client of circumstances that may lead to a modification of the agreed services for technical or economic reasons. The Client provides Almakom with all the specifications it has and that are necessary for the execution of the contract in a timely manner.

4.2 The parties mutually inform each other immediately of any event that could jeopardize the execution of the contract.

4.3 The Client authorizes Almakom to access its premises as needed for the execution of the contract. In agreement with Almakom, the Client provides power supply and other necessary connections. It also provides the required space for storing equipment.

4.4 The contract will specify any other obligations of the Client arising from its duty to cooperate with Almakom on a case-by-case basis.

4.5 Almakom commits, for itself and its personnel, to respect the Client's operating instructions, particularly its access rules, to the extent that these have been communicated to Almakom before the contract was concluded or agreed upon later.

4.6 Almakom may only engage third parties with the Client’s consent. The Client cannot refuse consent without valid reason; however, it is not required to disclose reasons that are confidential. Almakom remains responsible to the Client for the services provided by third parties it has engaged.

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5. Documentation

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5.1 Before the joint review conducted by the Client and Almakom, the latter provides the Client with the necessary instructions for the installation and operation of the delivered systems and software in a reproducible and usable form. The Client may specify the provision of maintenance documentation in its tender. Documentation for users will be written in French or English, as will the documentation provided to IT personnel.

5.2 For applications related to accounting, the Client's auditors have the right to inspect the system documentation.

5.3 The Client may reproduce and use the documentation for the purposes specified in the contract.

5.4 When Almakom corrects defects, it also updates the documentation when necessary.

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6. Training

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6.1 Almakom trains the Client's staff according to the agreed terms.

6.2 Almakom commits to providing this training for a period of five years from the receipt of the system.

 

7. Compensation

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7.1 Almakom provides its services at fixed prices or based on actual costs according to the time spent and the agreed rates. The types of costs and rates applied are specified in the offer.

7.2 Compensation is deemed to cover all services necessary for the execution of the contract, particularly installation costs, documentation, training, ancillary fees, license fees, packaging, transport, and insurance costs, as well as public duties (e.g., VAT) borne by Almakom, and anticipated recycling fees, which may be indicated separately.

7.3 Invoices are issued monthly or according to the agreed payment schedule. Invoices are payable within 10 days of receipt.

7.4 When the contract provides for partial payments (advance payments or deposits), the Client may request guarantees from Almakom in the tender.

7.5 Compensation will only be adjusted for price increases if, and to the extent that, the contract specifies it.

7.6 If Almakom calculates its compensation based on actual costs, it will accompany the invoice with a report specifying the services provided and the costs for each person involved in the project.

 

8. Modification of Services

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8.1 The parties may request in writing—via the designated project managers—that a modification be made to the agreed services. If this is expected to impact costs or deadlines, Almakom will provide a supplementary offer within a period to be agreed. This offer will include an assessment of feasibility, a description of the additional services, and specify the impact on the overall project, particularly with respect to costs and timelines. It will also indicate whether the project must be partially or fully halted until a decision is made regarding the modification, and the impact of such a halt on compensation and completion deadlines.

8.2 Unless otherwise agreed, Almakom will continue its work in accordance with the contract while the modification proposals are being reviewed.

8.3 The modification of services, and where applicable, adjustments to compensation, timelines, and other contractual points, are agreed upon before execution in an amendment to the contract. Compensation adjustments are calculated according to the rate in effect at the time the modification is agreed. For changes that do not have a significant impact on the scope of services, compensation, or timelines, a modification record signed by the Client's and Almakom's responsible parties is sufficient.

 

9. Rights Regarding Custom Software

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9.1 The rights regarding software developed specifically for the Client, including the program description, documentation, ideas, processes, and methods in written form or in a system-exploitable format, will be transferred to the Client. Both parties are free to use ideas, processes, and methods not protected by intellectual property law. Almakom provides the Client with software documentation before the joint review— or before any required partial payments— including an overview, data model, functions, and other documents.

9.2 Intellectual property (patents) for inventions created during the execution of the contract belong to:

• The Client for inventions made by its personnel;

• Almakom for inventions made by its personnel or third parties it has engaged;

• The Client and Almakom for inventions made jointly by their respective personnel or third parties engaged by Almakom.

The parties waive the right to charge each other for licensing fees. They may transfer their rights or grant usage rights to third parties without the other party's consent.

9.3 When carrying out similar work for other customers, Almakom is entitled to use ideas, concepts and processes (know-how) concerning the processing of data that it has developed during the performance of services under this contract, alone or jointly with the Client’s staff. The rights of the Customer arising from manufacturing or business secrets are reserved.

10. Rights relating to standard software

10.1 The intellectual property rights to standard software remain with Almakom or third parties. If these rights are held by third parties, Almakom guarantees that it has the right to use and distribute them.
10.2 The Customer obtains a non-transferable and non-exclusive right to use and exploit the standard software under agreed conditions.
10.3 The Customer may make copies of standard software for backup and archiving purposes.
10.4 In the event of a hardware failure, the Customer shall be entitled to use standard software on a replacement hardware without paying any additional compensation.

11. Infringement of intellectual property rights

11.1 Almakom guarantees that its offer and services do not infringe on the intellectual property rights of third parties.
11.2 Almakom is obliged to oppose, at its own risk, third-party claims for infringement of intellectual property rights. The Client immediately communicates these claims in writing to Almakom; he leaves it to him to conduct a possible lawsuit alone and to take the necessary measures for a judicial or extrajudicial settlement of the dispute. Under these conditions, Almakom shall bear all the costs incurred by the Client and the compensation imposed on the latter.

11.3 If a claim for infringement of intellectual property rights is filed or a provisional measure is requested, Almakom may, at its own expense and at its own discretion, either provide the Client with the right to use the disputed software by waiving any infringement of industrial property, or modify the software or replace it with another one meeting the main contractual requirements. If he does not choose one of these routes, Almakom will assume responsibility for the damage caused.

12. Secrecy and data protection

12.1 The parties undertake to keep secret facts and data that are not public knowledge or accessible to the public. This obligation to maintain secrecy extends to the third parties concerned. It also applies to facts and data of which the confidential nature is uncertain. It takes effect even before the conclusion of the contract and remains after the end thereof and the completion of the agreed service. The scope of secrecy can be adapted to specific circumstances in an annex or an amendment to the contract. The legal obligation to provide information remains reserved.
12.2 Almakom has the right to communicate the existence of the tender and its essential content to third parties whose services it may require. 12.3 Advertising and publications relating to specific services require the written consent of the other party.
12.4 Data protection regulations must be complied with. Data protection and special security provisions are agreed where applicable.

13. Staff

13.1 Almakom only assigns carefully selected and well trained staff to the project. At the request of the Client, he replaces in due course persons who do not have the required skills, who otherwise hinder the execution of the contract or who can no longer perform their duties for any reason.

13.2 The parties agree on the organization of the project and designate the persons responsible.
13.3 The hiring of employees or the use of employee services in any form from the other contracting party during the term of the contract and for a further year after its expiration is only possible on the basis of prior written agreement.

14. Control and reception

14.1 Almakom undertakes to transmit only for the reception of tested specific systems and software. The Client has the right to review test reports.
14.2 The Parties shall agree on the terms and conditions of receipt, which shall include: date of receipt, schedule for joint review, procedure and criteria for receipt (e.g. functions, availability, characteristics), qualification of the Client’s defects and obligations in terms of collaboration.
14.3 The reception is preceded by a joint inspection carried out by both parties. Almakom invites the Customer to it in good time. The inspection and its outcome are the subject of a report which is signed by both parties. 14.4 The parties may agree on partial acceptances; these shall be subject to final acceptance.
14.5 If the inspection does not reveal any defect, the Client accepts the service by signing the minutes.
14.6 The receipt, attested by the Client by his signature on the minutes, also takes place if the inspection reveals minor defects. Almakom in this case eliminates the defects found within the framework of its guarantee services. A defect is considered to be minor if the essential functions of the system are usable.

14.7 The reception is postponed in case of major defect. Almakom immediately eliminates the defects found and invites the Customer in time to participate in a new inspection. If the latter reveals major defects again without the parties being able to agree on the continuation of the operations, the contract ends and all payments already made are reimbursed. The action for damages remains reserved. Any defect that affects an important function of the system under consideration is considered to be a major one. 14.8 If the Client does not carry out the acceptance check within a reasonable period of time after being reminded by Almakom or if he uses the results without the approval of Almakom, acceptance will be deemed to have been made.

15. Remains

15.1 When the parties do not observe the firm deadlines agreed in the contract, they are in default without further notice. They are in default for the other deadlines only after being called upon and having been set a suitable deadline in writing to comply.
15.2 Almakom owes a contractual penalty to the Client, unless he proves that he himself or a third party mandated by him has not committed any fault. The penalty is equal to one per thousand of the total remuneration per day of delay, but reaches a maximum of 10% of this remuneration. It is due even if the services have been accepted without reservation. The payment of the conventional penalty does not release Almakom from its other contractual commitments. Remains reserved the action for damages, on which the contractual penalty is attributable.

16. Guarantee

16.1 Almakom guarantees that its products and services will have the agreed qualities and those which the Customer can expect in good faith with regard to current technology.

16.2 In the event of a defect, the Client shall first request free repair. Almakom will correct the defect within a reasonable period of time at its own expense. The Client will have the right to demand the realization of a new product if it is the only way to correct the defect found.
16.3 If Almakom has not carried out the requested repair, or has carried it out without success or outside the time limits, the Client may reduce the remuneration in proportion to the loss in value. In the event of major defects, he may terminate the contract or request the necessary documents, in particular the source code – provided that Almakom has the right to relinquish it – and take the necessary measures himself or have them carried out by a third party.
16.4 Notice of defects shall be given within 30 days of their discovery. Warranty claims are time-barred one year after final acceptance. The repair of a defect confers a new warranty period on the element in question. The rights resulting from defects concealed by fraud may be exercised for ten years from final receipt. 16.5 Divergent warranty provisions applicable to third-party products must be specified in the contract.

17. Responsibility

17.1 The parties shall be liable for damages in connection with the contract caused by themselves or third parties they have included, unless they prove that neither they nor any third party has been at fault. Their liability is incurred up to the actual damage.
17.2 Liability for personal injury is unlimited and limited to CHF 100,000. - per event and per year for property damage, in accordance with the RC insurance certificate from Almakom SA.
17.3 High risks must be the subject of special agreements.

18. Care and maintenance

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18.1 Almakom shall be responsible for the servicing and maintenance of the specific software for at least five years from the expiry of the warranty under an agreed service contract.
18.2 After the expiry of the warranty, the provision of maintenance services by Almakom is invoiced at competitive rates.

19. Place of performance

19.1 Insofar as the annexes do not expressly provide for other clauses, the place of performance for all Almakom services arising from this contract is considered to be the customer’s domicile according to the following provisions.
19.2 Almakom may, at its own discretion and in the interest of maximum efficiency, carry out the various works necessary for carrying out the project at its headquarters or at the client’s headquarters.
19.3 When Almakom provides services to the client, the latter is required to provide a test environment as well as a fully equipped IT workplace.

20. End of the contract

20.1 At the end of the contract, Almakom is required to spontaneously hand over to the Client all documents and results received from him in written or exploitable form by the system.
20.2 The parties agree on other final terms as required.

21. Assignment, transfer and pledge

21.1 Contractual rights and duties may not be assigned, transferred or pledged without the prior written consent of the other party. This agreement will not be declined without cause. Where a party belongs to a group of companies, these are not considered third parties.
21.2 At the time of delivery, the obligations contained in the import certificates are transferred from Almakom to the Customer, insofar as Almakom has mentioned this in its offer.

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22. Contractual documents and order of priorities

In the event of contradictory provisions between the documents relating to a contract, the original contract shall take precedence over the provisions of these GTC; these shall prevail over the offer, and the latter shall take precedence over the specifications.
 
23. Applicable law and for

23.1 In addition, Swiss law shall apply to contracts concluded in accordance with these general terms and conditions.
23.2 The provisions of the United Nations Convention on Contracts for the International Sale of Goods, concluded at Vienna on 11 April 1980, shall not apply.
23.3 The forum for any dispute concerning contracts and their execution is at CH-1260 Nyon.
 
24. Original version

Almakom’s general conditions are translated into English. In case of discrepancies between the versions, only the French version is authentic.

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