AUTOMIQ LLC - AI Consulting & Systems Development
These General Terms and Conditions apply to all contracts, services and offers of AUTOMIQ LLC (hereinafter "Contractor" or "AUTOMIQ") towards its customers (hereinafter "Client" or "Customer"). AUTOMIQ LLC provides its services exclusively to businesses (B2B) and to legal entities under public law. Contracts with consumers are not concluded.
1. Scope and Conclusion of Contract
1.1 These GTC apply to the entire business relationship between the Contractor and the Client, including consulting, analyses, software engineering and software development, the provision of software as Software-as-a-Service (SaaS), automation, AI integration and other services.
1.2 General terms and conditions or purchasing conditions of the Client do not become part of the contract, even if they are not expressly objected to. They apply only insofar as the Contractor has expressly agreed to them in writing.
1.3 Offers of the Contractor are subject to change and non-binding. A contract is concluded only through a written order confirmation by the Contractor, through the signing of an offer/contract by both parties or through the commencement of the provision of services.
1.4 For individual projects, separate project-specific agreements are usually made (e.g. offer, service description, statement of work, software or licence agreement). In the event of a conflict, the provisions of the project-specific agreement take precedence over these GTC.
1.5 Amendments and supplements to the contract require text form (e.g. email). This also applies to any amendment of this text-form requirement.
2. Scope of Services and Service Description
2.1 The subject matter of an order may in particular be: AI and digitalisation consulting, status, potential and process analyses, the creation of strategies and roadmaps, software engineering and individual software development, the development of digital systems and platforms, the provision of software as Software-as-a-Service (SaaS), process automation, the integration of AI and third-party systems, training as well as other services.
2.2 The specific scope of services results from the respective project-specific agreement or the written service description. The services described therein are decisive; services not expressly mentioned are not owed.
2.3 Consulting, analysis and conceptual services constitute services; the Contractor owes a professional course of action but not a particular economic success. Estimated effects, savings or potentials are non-binding forecasts and not warranted characteristics.
2.4 In the creation of individual software, the written service description is the basis of development. The Client must check this for accuracy and completeness and approve it. If no written service description is available at the start of the order, development takes place on the basis of the offer and at the Client's risk.
2.5 Change or supplementary requests arising later (change requests) may lead to separate scheduling and pricing agreements (see point 6).
2.6 Where software is provided as Software-as-a-Service (SaaS), the Contractor grants the Client the use of the respective current version of the software for the contract term via the internet (temporary grant of use); this does not include a transfer of the source code or an installation at the Client's premises. Availability, maintenance and remuneration of the SaaS service are governed by the project-specific agreement.
3. Project Process, Milestones and Timeline
3.1 Projects are, in principle, structured in defined milestones. The milestones, the respective assigned services as well as the timeline (schedule) are defined in the project-specific agreement before the start of the project.
3.2 Dates and timelines are based on the assumption of an undisturbed project execution and a timely, complete cooperation by the Client (see point 4). Stated dates are, in principle, planned or target dates and not fixed dates, unless a binding fixed date has been expressly agreed in writing.
3.3 The Contractor is entitled to provide separable services in partial services and to invoice them after the achievement of individual milestones (see point 7).
3.4 After a milestone has been achieved, the Contractor notifies the Client of this. The Client must check the result within the agreed period or a reasonable period (but at least 10 working days) and approve it, or raise any defects specifically and comprehensibly in writing. If no response is given within the period, the milestone is deemed approved.
4. Cooperation Obligations of the Client
4.1 The Client is obliged to actively cooperate in the provision of services to the necessary extent. The proper and timely cooperation of the Client is an essential prerequisite for the execution of the project on schedule and within budget.
4.2 The cooperation obligations include in particular:
- timely, complete and substantively correct provision of all information, documents, data, access and systems required for the provision of services;
- nomination of a responsible contact person with decision-making authority;
- timely decisions, approvals and acceptances within the agreed periods;
- provision of the required test and live data as well as suitable test environments and facilities;
- ensuring the necessary technical and organisational framework conditions (e.g. access to third-party systems, licences, interfaces, cooperation of third parties);
- regular data backup in the Client's own sphere according to the state of the art before work on its systems begins.
4.3 Responsibility for the backup of live data lies with the Client. If a facility provided for testing is already being used in live operation, the Client bears the responsibility for the backup of this live data.
4.4 If the Client does not fulfil its cooperation obligations, does not fulfil them in good time or does not fulfil them to the necessary extent, the Contractor is not responsible for any resulting delays, additional work and additional costs (see point 5).
5. Default, Default of Cooperation and Additional Work
5.1 Default of the Contractor. If the Contractor has exceeded a bindingly agreed date for reasons attributable solely to it, the Client must set the Contractor a reasonable grace period in writing (at least 14 days). Only after the unsuccessful expiry of this grace period can the Client assert the rights provided for in point 12.
5.2 Default of cooperation by the Client. If the provision of services is delayed because the Client does not fulfil its cooperation obligations or does not fulfil them in good time, the affected dates and the timeline are postponed appropriately, at least by the period of the delay plus a reasonable restart period. In this respect, the Contractor is not in default.
5.3 The Contractor will point out to the Client any missing or insufficient cooperation if a date is thereby endangered. However, there is no obligation to continuously monitor the Client's cooperation services.
5.4 Additional work. Additional work that arises due to incorrect, incomplete or subsequently changed information, due to delayed or omitted cooperation, due to change requests or due to other circumstances attributable to the Client is to be remunerated separately by the Client according to actual occurrence at the Contractor's rates applicable at the time. Waiting times and idle periods for which the Client is responsible are deemed to be working time.
5.5 Force majeure. Events of force majeure as well as other circumstances outside the Contractor's sphere of influence (e.g. natural disasters, strikes, failures of telecommunications or cloud services, official measures, pandemics) release the Contractor from compliance with agreed dates for their duration and entitle it to a reasonable postponement.
6. Changes to the Scope of Services (Change Requests)
6.1 Each party may propose changes to the agreed scope of services. Changes require an agreement in text form.
6.2 The Contractor reviews the change request and informs the Client whether and with what effects on remuneration, dates and timeline the change can be implemented. Until agreement on the change is reached, the work is continued on the basis of the existing agreement.
6.3 The Contractor may invoice the effort for reviewing extensive change requests separately, provided this was announced in advance.
7. Prices and Payment Terms
7.1 Unless otherwise agreed, all prices are in euros and exclusive of value added tax. Any value added tax owed by law is shown additionally. For cross-border B2B services, the reverse charge procedure may apply; in this case the Client is obliged to remit the tax in its country.
7.2 Services are invoiced, depending on the agreement, at flat-rate prices, according to effort (time and material expenditure) or on a milestone basis. In the case of invoicing according to effort, the hourly rates of the Contractor applicable at the time of the provision of services apply.
7.3 The Contractor is entitled to issue partial invoices after the achievement of individual milestones or after the provision of partial services. Likewise, a reasonable advance payment or down payment may be agreed.
7.4 Travel costs, expenses, third-party costs (e.g. licences, cloud services, third-party APIs) as well as other outlays are charged separately according to actual occurrence, insofar as they are not expressly included in the price. Travel time is deemed to be working time.
7.5 Invoices are, unless otherwise agreed, payable within 14 days of the invoice date without deduction. In the event of default of payment, default interest at the statutory rate as well as the reasonable costs of collection (reminder and collection charges, legal prosecution) are charged.
7.6 The Client is not entitled to withhold payments on account of allegedly incompletely provided services, warranty or guarantee claims or other complaints, or to offset them against counterclaims, unless the counterclaim has been established by a final court decision or acknowledged by the Contractor in writing. This is without prejudice to the Client's right, in the case of justified defects of the affected service that have been notified in a concrete and comprehensible manner, to retain a reasonable part of the remuneration attributable to that service, commensurate with the defect, until the defect has been remedied.
7.7 In the event of default of payment by the Client, the Contractor is entitled to suspend ongoing work until payment is made in full. Until full payment, all transferable rights and licences remain with the Contractor (see point 9).
8. Acceptance (for Work Performances)
8.1 Insofar as the Contractor provides work performances (in particular individual software), the Client must check and accept these within the agreed period or a reasonable period (at least 10 working days from provision). Acceptance is carried out on the basis of the approved service description.
8.2 Insignificant defects do not entitle the Client to refuse acceptance. If the Client puts the service into productive operation or lets the acceptance period elapse without a written, sufficiently documented notice of defects, the service is deemed accepted.
8.3 A formal acceptance takes place only if this has been expressly agreed. The unconditional receipt or use of the service is deemed acceptance.
9. Rights of Use and Copyright
9.1 The copyright and other protective rights to all work results created by the Contractor (in particular software, source code, concepts, analyses, documentation) belong to the Contractor, unless expressly agreed otherwise.
9.2 After full payment of the agreed remuneration, the Contractor grants the Client a non-exclusive, non-transferable and unlimited-in-time right to use the work results created for it for its own, internal business purposes. Any further transfer of rights (e.g. exclusive rights, transfer of the source code, editing rights) requires a separate written agreement and, where applicable, separate remuneration.
9.3 The Contractor remains entitled to continue to use and exploit, without limitation in time and place, the general ideas, concepts, procedures, methods, know-how and reusable components (e.g. frameworks, libraries, building blocks) underlying the work results.
9.4 For third-party software and components (e.g. standard software, open-source libraries, cloud/AI services), exclusively the respective licence or usage conditions of the third-party providers apply, to which the Client is separately referred. The Contractor assumes no liability for compliance with these conditions by the Client.
9.5 The source code of individually created software remains with the Contractor, unless its release has been expressly agreed.
10. Warranty
10.1 The Contractor warrants that the work performances provided correspond to the agreed service description at the time of acceptance. A particular suitability for purposes that go beyond the service description, as well as freedom from errors under all operating conditions, is not owed. According to the state of the art, it is not possible to create software completely free of errors.
10.2 A prerequisite for warranty claims is that the Client notifies defects within a reasonable period, but at the latest within 14 days of becoming aware of them, in writing and sufficiently documented (reproducibly). If it fails to give timely notice, the service is deemed approved.
10.3 In the event of a warranty case, improvement (rectification) takes precedence over price reduction or rescission. The Contractor will remedy justified defects within a reasonable period. For this purpose, the Client enables all necessary measures and provides the necessary documents.
10.4 No warranty exists for defects, malfunctions or damage attributable to: improper operation, interventions or changes made by the Client or third parties, use outside the intended operating conditions, changes to operating systems, interfaces, parameters or deployed third-party and cloud services, as well as content or specifications provided by the Client.
10.5 The warranty period is, insofar as legally permissible, twelve (12) months from acceptance or handover. Any statutory presumption that a defect already existed at the time of handover is excluded to the extent permissible.
10.6 The Client must itself check the content and specifications provided by it for their legal admissibility (in particular under competition, trademark, copyright and data protection law). The Contractor is not liable for the legal admissibility of content specified by the Client.
11. Liability
11.1 The Contractor is liable for damage caused by it only in the case of intent and gross negligence. Liability for slight negligence is excluded, except for personal injury.
11.2 Liability for indirect damage, consequential damage, lost profit, loss of interest, foregone savings, damage from business interruption, data loss as well as for claims of third parties is excluded, insofar as legally permissible.
11.3 Insofar as the liability of the Contractor is not excluded, it is limited in amount to the order value of the affected project. The stated liability limitations do not apply to personal injury and to damage resulting from intent or gross negligence.
11.4 For the restoration of data, the Contractor is liable only if the Client has backed up the data at reasonable intervals and in a suitable form so that it can be reconstructed with reasonable effort; in this case, liability is limited to the typical restoration effort.
11.5 Claims for damages become time-barred within the statutory limitation periods.
11.6 If the Contractor uses services of third parties (e.g. AI models, cloud services, APIs), it is not liable for the availability, content, accuracy or results of these third-party services. Results of generative AI systems may be erroneous or incomplete and must be checked by the Client before productive use.
12. Term, Withdrawal and Termination
12.1 If the Contractor exceeds a bindingly agreed delivery date through its sole fault and also fails to provide the service in essential parts within a reasonable grace period set in writing, the Client may withdraw from the relevant order in writing.
12.2 The Contractor is entitled to withdraw if the Client, despite a written request and the setting of a grace period, breaches its cooperation obligations, falls into default of payment, or if the execution of the project becomes impossible or unreasonable for reasons attributable to the Client. In these cases, the services provided up to that point as well as the costs and expenses incurred are to be remunerated.
12.3 Cancellations or premature terminations by the Client require the written consent of the Contractor. In this case, the services provided up to that point and the costs incurred are to be remunerated; in addition, the Contractor may charge a reasonable cancellation fee amounting to 20 % of the not-yet-invoiced order value.
12.4 The right to extraordinary termination for good cause remains unaffected for both parties.
13. Confidentiality and Data Protection
13.1 Both parties undertake to treat all confidential information, business and trade secrets of the respective other party obtained within the scope of the cooperation as confidential without limitation in time and to use them exclusively for the purposes of performing the contract.
13.2 The parties are each independent controllers under data protection law and must, in their own sphere, ensure compliance with the applicable data protection provisions (in particular the GDPR). Insofar as the Contractor processes personal data on behalf of the Client, a separate data processing agreement (Art. 28 GDPR) is concluded.
14. Reference Naming
14.1 The Contractor is entitled to name the Client (name and logo) as well as the project carried out in a general form as a reference, provided no confidential content is disclosed. The Client may object to a reference naming in writing at any time.
15. Non-Solicitation
15.1 The parties undertake, during the term of the contract and for 12 months thereafter, not to solicit or employ any employees of the respective other party who were involved in the execution of the project.
16. Ongoing Service and Maintenance Performances (Continuing Obligations)
This point applies in addition to all recurring services - in particular maintenance, upkeep, support, monitoring and ongoing technical care of websites and systems as well as subscription and licence services. In the event of a conflict, the provisions of a separate maintenance or service agreement take precedence over this point. For ongoing service and maintenance performances, the provisions of this point 16 take precedence over the general provisions on acceptance (point 8) and on contract term/termination (point 12); the liability provisions of point 11 apply in addition, whereby for ongoing services the remuneration attributable to twelve (12) months of the affected service replaces the order value.
16.1 Subject Matter and Nature of the Service. Ongoing service and maintenance performances are services within the framework of a continuing obligation. The Contractor owes a professional, diligent course of action within the agreed scope, but not a particular success, a particular availability or freedom from errors of the maintained systems.
16.2 Scope of Services. The specific scope (e.g. update cycle, backups, monitoring, reporting) results from the service description of the respective maintenance or service agreement. Services not expressly mentioned - in particular content changes, redesign, the development of new functions, performance/SEO optimisation as well as the remedying of damage caused by interventions of third parties - are not included and are remunerated separately according to effort.
16.3 Cooperation. Throughout the entire term, the Client provides the access required for the provision of services (e.g. administrator, hosting, domain/DNS, analytics and third-party system access) and keeps it up to date. If this is not done, the affected service obligation of the Contractor is suspended to that extent, without the remuneration ceasing to apply.
16.4 Remuneration and Price Adjustment. Remuneration is made as a recurring fee (flat rate per billing period) and is - unless otherwise agreed - due in advance. For invoicing, payment terms and default, point 7 applies in addition. The Contractor is entitled to adjust the recurring fees appropriately once a year with a notice period of at least six (6) weeks to the beginning of the next contract period (in particular to compensate for increased personnel, licence or third-party costs). If the fee increases by more than 10 % compared to the previous period, the Client has a special right of termination effective upon the increase taking effect.
16.5 Minimum Term and Automatic Renewal. Unless otherwise agreed, the minimum term is twelve (12) months. The contract is thereafter automatically renewed by a further twelve (12) months each time, unless it is terminated in text form with a notice period of three (3) months to the respective end of the term.
16.6 Extraordinary Termination. The right to extraordinary termination for good cause remains unaffected for both parties. Good cause exists for the Contractor in particular if the Client falls considerably into default with fees due or breaches essential cooperation obligations despite the setting of a grace period.
16.7 Suspension of Services in the Event of Default of Payment. In the event of default of payment, the Contractor is entitled, after prior announcement, to suspend the ongoing services until payment is made in full. Fees already paid in advance are not refunded on a pro-rata basis insofar as the service was provided for the current billing period; one-off setup or creation services are excluded from a refund.
16.8 Availability and Response Times (Service Level). Unless a service level (guaranteed response or restoration times, availability levels, 24/7 standby) has been expressly and separately agreed, the Contractor provides the services within usual business hours and endeavours to handle critical malfunctions within a reasonable period. Maintenance windows and brief, operationally required interruptions do not constitute a defect.
16.9 Data Backup. The responsibility for an additional, regular backup of one's own data remains with the Client. Backups created by the Contractor serve exclusively the performance of the contract and do not establish any liability beyond point 11.4.
16.10 Third-Party Services. For third-party services used or provided by the Client (hosting, domains, licences, cloud/AI services, plugins), exclusively the respective conditions of the third-party providers apply; their costs are borne by the Client insofar as they are not expressly included in the fee.
16.11 Termination and Handover. Upon the end of the contract, the ongoing obligations of the Contractor end. A handover, migration, data export or training going beyond the contract period is carried out only upon separate order and is remunerated according to effort. Access that the Contractor has received for the provision of services is, upon request, deactivated or returned after the end of the contract.
17. Final Provisions
17.1 Should individual provisions of these GTC be or become wholly or partly invalid, the validity of the remaining provisions remains unaffected. The invalid provision is to be replaced by a valid one that comes closest to the economic purpose of the invalid provision.
17.2 Exclusively the substantive law of Switzerland applies, excluding its conflict-of-law rules and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
17.3 The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be the competent courts in Zurich (Switzerland). The Contractor is additionally entitled to bring an action against the Client at the Client's general place of jurisdiction.
17.4 The language of the contract and of communication is German. In case of doubt, the German version of these GTC is authoritative (legally binding).
These GTC apply exclusively to business with businesses (B2B).