Terms and Conditions
These Terms and Conditions establish the rights, obligations and remedies between Earlybyte GmbH, with registered offices at Technoparkstrasse 2, 8406 Winterthur, and its affiliated companies, hereinafter Earlybyte, and the Customer which apply to any offer by Earlybyte and/or order issued by the Customer for the purchase of the Earlybyte’s products, software and/or services (“Products”). Unless otherwise stated in a written purchase agreement signed by duly authorized representatives of Earlybyte and the Customer and covering the specific Products that are the subject of any of Customer’s Purchase Order, Earlybyte’s acceptance thereof is made on the express condition that the Customer assents with these Terms and Conditions. No additional or different terms or conditions, whether contained in the Customer’s Purchase Order or any other document or communication pertaining to the Customer’s order will be binding unless accepted in writing, and Earlybyte hereby expressly objects to any such terms and conditions which shall be deemed ineffective, and are herewith rejected.
2. Contractual Relationship
No contractual relationship between Earlybyte and the Customer shall arise until Earlybyte has accepted the Customer’s Purchase Order through a valid order acknowledgement. The simple remittance of a Purchase Order or acceptance of a Earlybyte offer of sale by the Customer implies the Customer accepts these Terms and Conditions and, by the same, waives its own General Terms and Conditions of Purchase, if any, even if such acceptance or Purchase order explicitly states otherwise. Offers will expire thirty (30) days from the date issued.
3. Disclaimer of partnership
Nothing in these Terms and Conditions will be construed to place the Parties in an agency, employment, franchise, joint-venture, or partnership relationship. No party has the authority to obligate or bind the other in any manner. Nothing in these Terms and Conditions gives rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that they will perform their obligations as independent contractors.
4. Quality and Nature of the Products
Earlybyte and the Customer will mutually determine the specifications for the Products including but not limited to special Product and process characteristics as well all relevant technical standards or its derivations, and the Control Plan to finally define the quality and nature of the Products.
Customer with his expertise has the sole responsibility to provide in its sole discretion all relevant information and requirements for Products. No other sources for information to be provide by Customer but those provided in pursue of the foregoing shall be relevant for any performance of Earlybyte. Earlybyte and the Customer will update the specifications and related processes upon mutual consent of the scope and the cost of changes of the Products or processes related to the development and/or manufacturing of the Products which constitutes the relevant revision of the specifications at the date of delivery.
Special characteristics or critical characteristics of the Products must expressly be identified as such by the Customer. They do not constitute any extended liability or guarantee of Earlybyte unless otherwise expressly stipulated and covered by amendments to the Control plan.
Earlybyte reserves retention of title to the Products delivered or in use until payment of all account receivables due and future account receivable already constituted by purchase order or agreement within the total business relationship to the Customer. The Customer may not give Earlybyte’s Products in pledge to a third party for his collateralization purposes. Any kind of work to the products or the mixture with other Products will be deemed to the benefit of Earlybyte without any obligation for Earlybyte and without loss of its ownership. In the event of implementation of the products in components Earlybyte receives the coownership of the Customer and is entitled to notify this.
The Customer shall give immediate written notice in any event of a pledge or any other encumbrance of third parties on our Products. The Customer must undertake any action to extinguish the pledge or the encumbrance and must support us in the defence of our rights in any kind, upon our request also on our behalf.
6. Delivery Schedule
The Customer acknowledges that any delivery schedule provided by Earlybyte is only an estimation. Earlybyte will use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery schedule but shall not be liable to Customer for failure to meet any delivery schedule or for the costs to procure or design substitute Products.
Earlybyte reserves the right to make deliveries in instalments. Delivery of a quantity that varies from the quantity specified in Customer’s order shall not relieve Customer of its obligation to accept delivery and pay for the Products delivered. Customer shall not refuse to accept delivery or any consignment or instalment on account of any shortage or defect in any other delivery.
7. Customer Caused Delay
Earlybyte will not be liable for any delays or increased costs caused by a failure of the Customer, such as delays in providing necessary information or other Customer deliverables or delays by the Customer designated suppliers in providing Products or Services. In the event of a non-force majeure Customer caused delay, the price and other affected terms will be adjusted accordingly to reflect Earlybyte’s increased costs and other adverse impacts associated with such delay.
8. Excusable Delay (“Force Majeure”)
Except for payment obligations, neither party will be liable to the other for any failure to meet its obligations due to any cause beyond the non-performing party’s reasonable control. If the inability to perform continues for longer than ninety (90) days, either party may terminate the Purchase Orders which are affected by the Force Majeure by providing written notice to the other party and the Customer will pay Earlybyte for Products delivered and services performed prior to termination.
Force majeure events may include but are not limited to:
a) delays or refusals to grant an export license or the suspension or revocation thereof;
b) any other acts of any government that would limit the ability for its performance;
c) fires, earthquakes, floods, severe weather conditions, or any other acts of God;
d) quarantines or regional medical crisis;
e) labour strikes or lockouts;
f) riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or
impending threat of any of the foregoing, if such threat might reasonably be expected to cause
injury to people or property);
g) shortages or inability to obtain materials or components, and;
h) Inability or refusal by the Customer’s directed third party suppliers to provide Earlybyte with parts, services, manuals, or other information necessary to the Products or services to be provided by Earlybyte.
If a force majeure event causes a delay, the date of performance will be extended by the period of time that the non-performing party is actually delayed or for any other period as the parties may agree in writing.
Any and all changes to Buyer’s Purchase Orders must be provided by written (paper-based or electronically transmitted) notice from Buyer. Any amount expensed or engaged by Earlybyte to fulfill customers purchase order will be due by the customer and paid before such cancelation is subject to acceptance. Any change order increasing the purchase quantity is subject to acceptance by Earlybyte.
10. Inspection and Suitability
The Customer will inspect and test the Products within a reasonable period after delivery not to exceed twenty (20) calendar days, promptly notifying Earlybyte in writing upon receipt of the Products of all discoverable defects, including, but not limited to, quantity shortages, visible defects and performance discrempancies.
The Products are presumed accepted unless Earlybyte receives written notice of rejection explaining the basis for proper rejection within the same timeframe.
11. Trademarks and Other Labels
The Customer agrees not to remove or alter any indicia of origin on or within the Products including but nolimiting to software source code, UI and delivered hardware.
12. Product Change
Earlybyte reserves the right to change the specifications of Products, including all statements and data appearing in Earlybyte’s catalogues, data sheets and advertisements, without notice. Earlybyte will publish the modified specifications on its website and will notify the Customer. If such changes to specifications are made, Earlybyte shall have no obligation to provide the change on Products previously purchased.
13. Prices, Taxes, Duties, Order Sizes and Hardship
Earlybyte’s pricing excludes all taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), duties and charges. The Customer is responsible for all such taxes, duties and charges as a result of Earlybyte’s performance hereunder, whether now or hereafter imposed, levied, collected, withheld, or assessed. If Earlybyte is required to impose, levy, collect, withhold or assess any such taxes, duties or charges on any transaction, then in addition to the purchase price, Earlybyte will invoice the Customer for such taxes, duties, and charges unless at the time of order placement the Customer furnishes Earlybyte with an exemption certificate or other documentation sufficient to verify exemption from such taxes, duties or charges.
Earlybyte reserves the right to change its prices if from the time of quotation material, hardware and/or software prices required for the Products have changed, or if there is any significant change in economic circumstances.
If for any reason Earlybyte’s production or purchase costs for the Products (including without limitation costs of energy, equipment, labour, regulation, transportation, licences or Product) increases over Earlybyte’s production, purchase or operation costs for the Products on the date of entering into the contractual relationship with the Customer, then Earlybyte may, by written notice to the Customer of such increased costs, request a renegotiation of the price of the Product. In the event the Parties are not able to agree on a revised Products price within twenty (20) days after a request for renegotiation is given, then Earlybyte may terminate the remaining Purchase Orders on a sixteen (16) weeks written notice to the Customer.
14. Payment Terms
Payment is due thirty (30) calendar days from the date of invoice. For new customers the payment terms are prepayment, 30 days net only after approval by Finance Department.
Payments must be made in the applicable currency quoted.
The Customer may not claim any dispute or breach of warranty in order to suspend payment for the Products.
If the Customer is delinquent in its payment obligation to Earlybyte, Earlybyte may upon written notice to the Customer stop work and withhold any future shipments or ongoing Products until all delinquent amounts and late interest, if any, are paid. Additionally, Earlybyte may at its option:
a) repossess Products for which payment has not been made, or;
b) charge interest on delinquent amounts at a rate of 1.5% per months for each full or partial month, or;
c) recover all costs of collection, including but not limited to reasonable attorneys’ fees, or;
d) Combine any of the above rights and remedies.
These remedies are in addition to all other remedies available at law or in equity.
15. Set Off
Neither Party will set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from the other Party, its parent, affiliates, subsidiaries or other divisions or units unless agreed in written between parties.
16. Acceptance of Services
Acceptance of services shall occur immediately upon completion unless buyer provides written notification of non-conformity within 20 calendar days of completion.
Earlybyte warrants for a period of twelve (12) months from the date of delivery that:
a) the Products delivered hereunder meet the specifications stipulated in writing between parties, and;
b) the Products shall be free from defects in material and workmanship, and;
c) Earlybyte at its options shall either repair or replace rejected Products or refund the purchase price.
The removal of defects shall take place at the discretion of the company by rectification or delivery, rebuilding or delivery or by any other suitable measure. The work is usually carried out by remote maintenance. If exceptionally direct access to the Customer facilities or hardware for example but not limiting the data processing systems on which the program is installed, the Customer should perform such physical interventions at its own cost, Earlybyte will contact the Customer to clarify all the necessary details.
If the repair or replacement fails or if it is refused or if it is unreasonable for a party, the customer is entitled either to claim a price reduction or to withdraw from the contract. The rectification of defects that do not or only insignificantly affect the value or serviceability of the product or service can be made dependent request of the Customer dependent on the payment of a reasonable remuneration.
IN ADDITION TO THE FOREGOING EARLYBYTE DOES NOT, NEITHER EXPRESSLY NOR IMPLIED, ASSUME ANY WARRANTY, GUARANTEE, RESPONSIBILITY OR LIABILITY IN PARTICULAR DERIVING FROM OR ATTRIBUTED TO EXPECTATIONS, ASSUMPTIONS OR INTENDED PURPOSES OR FUNCTION OF THE CUSTOMER NOT EXPRESSLY SPECIFIED IN WRITING IN THE DOCUMENTS OF THE SPECIFICATIONS ATTRIBUTED TO THE QUALITY AND NATURE OF THE PRODUCT AS STIPULATED. THE CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCTS AND ITS APPLICATIONS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS.
Warranty claims against Earlybyte set forth in this article shall not apply in the event of any violation of any contractual provision stipulated in these Terms and Conditions, if any, or in the event defects or damages caused by:
a) any defect caused by the Customer, misuse, wear and tear, or;
b) Alterations, modifications, additions, or repairs made during the applicable warranty period by anyone other than Earlybyte, its employees, agents or subcontractors.
c) Third party modifications and discontinuation of hardware and/or software inheritant from Customer’s choices or direct requirements.
Any warranty claim against Earlybyte is subject to the written information of the Customer without undue delay, latest within five (5) working days after knowledge or detection of the alleged defect, and the return of such rejected Products to Earlybyte.
The return of material and its reception is under no circumstances an acknowledgement of Earlybyte with regards to the reasons of the alleged defects or Earlybyte’s responsibility. Customer shall provide to Earlybyte any information and document Earlybyte deems necessary or appropriate to enable Earlybyte to investigate the root cause of the alleged defect including but not limited to the information provided to the Customer by its customers or third parties or authorities within the supply chain after delivery to the Customer and to granting Earlybyte access to the entire environment in which the alleged defect has occurred. Earlybyte’s assent to investigate the root cause or to collect information related to the alleged defect under no circumstances shall constitute or be deemed any kind of acknowledgement of the defect or Earlybyte’s responsibility or liability or any waiver of Earlybyte for any objections.
If the Customer requests any intermediary report relating to the findings during the investigations for the root cause Customer acknowledges that such reports were only based on preliminary findings and do not constitute any acknowledgement of Earlybyte for any responsibility and has no legal relevance to determine contractual or statutory liabilities.
If Earlybyte is not responsible for the defect Customer shall reimburse to Earlybyte the reasonable costs Earlybyte has incurred in the course of the investigations of the root cause.
18. Limitation of Liability
IN NO EVENT WILL EARLYBYTE BE LIABLE NEITHER ON THE MERITS NOR IN TERMS OF THE AMOUNT FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, STATUTORY DAMAGES, INDIRECT DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE, EARLYBYTE’S LIABILITY FOR DAMAGES SHALL NOT EXCEED A SUM EQUAL TO TWICE THE AMOUNT ACTUALLY PAID TO EARLYBYTE FOR THE PRODUCTS OR RELATED SERVICES FROM WHICH THE CLAIM AROSE, WITH AN ABSOLUTE AGGREGATED MAXIMUM OF FOURTY (40) THOUSAND CHF PER CUSTOMER PER YEAR, FOR ALL CLAIMS, EVEN IF THESE CLAIMS AROSE FROM DIFFERENT PRODUCTS AND/OR SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE. INCLUDED BUT NOT LIMITED EARLYBYTE’s LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY DEFECTIVE PRODUCTS TO THE EXTENT SUCH LIABILITY IS NOT MANDATED BY APPLICABLE LAW.
EARLYBYTE SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM DELAY IN DELIVERY OR INSTALLATION OF THE GOODS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL. CUSTOMER EXPRESSLY ACKNOWLEDGES THIS DISCLAIMER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, EARLYBYTE SHALL NOT BE RESPONSIBLE FOR, AND SHALL INCUR NO LIABILITY WITH RESPECT TO, ANY INFORMATION SUPPLIED BY CUSTOMER OR ANY OF ITS SUBCONTRACTORS AND ANY DESIGN OR ENGINEERING DRAWINGS, REGARDLESS OF WHETHER SUCH DRAWINGS ARE REVIEWED BY CUSTOMER.
19. Intellectual Property Rights
“Intellectual Property Rights” are, amongst others but not exclusively, registered patent rights, registered or unregistered model and design rights and registered or unregistered trademarks, as well as applications for patents, model and design rights or trademarks, copyright rights, database rights, rights on software, hardware, copyrights and know-how rights anywhere in the world.
Nothing in these Terms and Conditions is intended to assign the intellectual property rights in the Products to Customer or third parties. All intellectual property rights in the Products are and remain vested with Earlybyte. This applies even if these intellectual property rights come into existence or are created pursuant to a specific purchase order or request of the Customer.
Upon full payment of all charges, Customer shall obtain a non-transferable license that is limited to the use of the Products sold hereunder solely for the applications set forth in the purchase order. Such limited license to use the Application-Specific Integrated Circuits shall include all mandatory rights conferred to Customer by law. It shall however exclude all other rights or uses.
Customer agrees and acknowledges that any intellectual property rights in an improvement in or modification to specifications, technical information, tools, know-how, software, methods and/or algorithms used by Earlybyte shall be irrevocably transferred to and become the sole property of Earlybyte, regardless of whether any such improvement or modification was developed by or made on specific request of Customer.
20. License Agreements
Notwithstanding anything to the contrary herein, to the extent the Services are delivered with a Customer or Third Party Product license agreement(s) (the “License Agreement(s)”), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant any rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement.
“Proprietary Information” means:
a) any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, that is clearly identified as being confidential, proprietary or a trade secret;
b) business related information including but not limited to pricing, manufacturing, or marketing;
c) the terms and conditions of any proposed or actual agreement between the parties;
d) either party’s business policies, or practices, and;
e) The information of others that is received by either party under an obligation of confidentiality.
The receiving party will keep all Proprietary Information disclosed hereunder confidential for a period of five (5) years following the expiration or termination of the contractual relationship between parties. Each party will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets.
22. Compliance with laws
The Customer shall comply with all local laws and regulations applicable to the installation, use, or import of all Products delivered hereunder. As a condition of purchase, the Customer shall comply with all applicable export control laws and regulations of the European Union, the United States and any other country having proper jurisdiction and shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder.
23. Export and Import Compliance
The Customer is responsible for compliance with all import and export control laws and regulations. The Customer will obtain import, export, and re-export approvals and licenses required for Products, transfers, services and technical data delivered and will retain documentation evidencing compliance with those laws and regulations.
Earlybyte will not be liable to Customer for any failure to provide Products, services, transfers or technical data as a result of government actions that impact Earlybyte’s ability to perform, including:
a) the failure to provide or the cancellation of export or re-export licenses;
b) any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after the date of any order or commitment that has a material adverse effect on Earlybyte’s performance, or;
c) Delays due to the Customer’s failure to follow applicable import, export, transfer, or re-export laws and regulations.
24. Applicable Law and Jurisdiction
The laws of the country in which Earlybyte GmbH has its registered offices shall exclusively apply to these Terms and Conditions and the implementation thereof. All disputes arising in connection with these Terms and Conditions shall be settled by negotiations between the parties. If an acceptable result cannot be so obtained, the dispute shall be exclusively rules or settled by the Courts competent for the jurisdiction in which Earlybyte GmbH has its registered offices.
In the event of any conflicting international private laws, Earlybyte expressly reserves the right to determine the venue.
25. Attorney’s fees
In the event of Earlybyte’s enforcement of any term or condition in the Contract, Customer shall be liable to Earlybyte for all costs, including attorneys’ fees, incurred by Earlybyte in enforcing the Contract and in collecting any sums owed by Customer to Earlybyte.
Neither Party will assign any rights or obligations without prior written consent of the other Party, which consent will not be unreasonably withheld. Either Party may assign its obligations to any affiliate of such party or in connection with the sale or transfer of all or substantially all of the assets of the product line or business to which it pertains. Any attempt to assign or delegate in violation of this clause will be void.
The failure of either Party to enforce at any time any of the provisions of these Terms and Conditions shall not be construed to be a continuing waiver of any provisions hereunder nor shall any such failure prejudice the right of such party to take any action in the future to enforce any provisions hereunder.
28. Interpretation and translation
The headings contained in these Terms and Conditions are included for information only, and shall not be referred to for the purpose of interpretation.
These Terms and Conditions are drawn up in English.
The English version is the only official version. If a translation of these Terms and Conditions is made, such translation shall only be made for the convenience of the parties. The parties agree that the English version shall prevail in case of doubt or uncertainty due to such a translation.
29. Notices and other communications
All notices and other communications related to these Terms and Conditions shall only be validly communicated when delivered by in person or sent by letter, e-mail or fax with acknowledgement of receipt, or sent by registered mail or recorded delivery with advice of receipt, or delivered by an approved courier service.
Notices and communications will be deemed to have been made on the date of their receipt at the addressee’s office.
If any provision of these Terms and Conditions is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of these Terms and Conditions will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added, as part of this Terms and Conditions, one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law. In such case, Earlybyte will amend these Terms and Conditions as soon as possible, in order to comply with the applicable laws.
The Terms and Conditions can only be modified by mutual agreement of both parties represented by duly authorized officers, expressed in written form.
A Party may terminate any or all unperformed orders by giving written notice to the other party upon the occurrence of any of the following events:
a) the other Party materially breaches these Terms and Conditions and fails to remedy the breach within thirty (30) calendar days after receipt of written notice that specifies the grounds for the material breach, or;
b) the other Party fails to make any payment required to be made when due, and fails to remedy the breach within seven (7) calendar days after receipt of written notice of non-payment, or;
c) Any insolvency or suspension of the other Party’s operations or any petition filed or proceeding made by or against the other Party under any state, federal or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings.
Termination does not affect any debt, claim or cause of action accruing to any party against the other before the termination. The rights of termination provided in this clause are not exclusive of other remedies that either party may be entitled to in law or equity. In any event of termination or cancellation of a contract the provisions protecting Earlybyte’s industrial property rights, the provisions for providing information in a warranty or product liability case, provisions for confidentiality and the governing shall survive.
33. Entire Agreement
These Terms and Conditions set forth the entire intent and understanding between the Parties, relating to the subject matter hereof, and supersedes all prior negotiations and discussions between them. No Party shall be bound by any conditions, representations or warranty other than as expressly set forth