Terms and Conditions

1. Scope

These General Terms and Conditions (GTC) govern the contractual relationship between SilentCreation GmbH, Feldstrasse 7, 8902 Urdorf (hereinafter “Contractor”), and its customers (hereinafter “Customer”) for all services in the areas of software development and custom development, hosting on the Contractor’s own servers, domain and DNS zone management, automation, audits, interim CTO/CDO assignments, and consulting.

These General Terms and Conditions are an integral part of every contract between the parties. Any deviating or supplementary agreements must be made in writing, unless the written form has been expressly agreed upon. The customer’s general terms and conditions shall apply only to the extent that they are expressly acknowledged in writing by the contractor.

2. Provision of Services

The Contractor shall perform the agreed-upon services with professional diligence in accordance with the respective engagement, project, or service agreement. The nature, scope, and timeframe of the services shall be agreed upon on a case-by-case basis.

Depending on the type of service, the provisions governing the contract for services (Art. 394 et seq. of the Swiss Code of Obligations) or the contract for work and materials (Art. 363 et seq. of the Swiss Code of Obligations) apply. The contractor is entitled to engage qualified third parties, such as freelancers or partner companies, to perform the services. The contractor remains responsible to the customer for the quality of the services provided.

3. Hosting, Domains, and Availability

To the extent that the Contractor provides hosting on its own servers, domain management, or DNS zone management, the following applies: The Contractor shall endeavor to ensure the highest possible system availability; however, absent an expressly agreed-upon Service Level Agreement (SLA), the Contractor does not guarantee any specific level of availability.

Binding availability, response, and recovery times, as well as maintenance windows, are governed by a separate SLA, if desired. The customer will be notified of scheduled maintenance in advance whenever possible.

Domains are registered and managed in the customer’s name and on the customer’s behalf or at the customer’s request. Unless otherwise agreed, the customer is responsible for complying with the registration terms and conditions of the respective registries and for paying domain fees.

4. Order Processing and Data Protection

To the extent that the Contractor processes personal data of the Client or the Client’s customers in the course of providing services - in particular in connection with hosting, domain and DNS management, and software and automation development - the Contractor acts as a data processor within the meaning of Art. 9 of the DSG.

The customer remains the data controller. The contractor shall process personal data exclusively in accordance with the client’s instructions and for the contractually agreed purposes, shall ensure an appropriate level of data security, and shall require any subcontractors to comply with the same obligations. The engagement of such subcontractors requires the client’s prior consent.

The details are set forth in a separate data processing agreement, which becomes an integral part of the contract when personal data is processed.

5. The Customer’s Obligations to Cooperate

The customer shall provide the contractor with all information, documents, and system access necessary for the performance of the services in a timely manner and free of charge.

The customer shall designate a responsible contact person and report malfunctions - particularly outages of hosted systems - immediately. Any delays or additional expenses resulting from the customer’s failure to cooperate, delayed cooperation, or improper cooperation shall be borne by the customer.

6. Confidentiality

Both parties agree to treat all confidential information obtained in the course of their collaboration as strictly confidential and not to disclose it to third parties. This includes, in particular, trade secrets, technical specifications, financial data, and personal data.

This obligation shall remain in effect even after the termination of the contractual relationship. Separate non-disclosure agreements (NDAs) will be entered into upon request.

7. Fees and Payment Terms

Payment is based on individually agreed-upon daily or hourly rates, or as a fixed price for specific projects. Recurring services, such as hosting, domain management, or maintenance, are billed periodically.

Expenses and out-of-pocket costs will be billed based on actual costs plus the applicable value-added tax. Invoices are due in full within 10 days of the invoice date.

In the event of late payment, the contractor is entitled, after issuing a prior notice of default, to suspend performance and to charge late-payment interest at a rate of 5% per annum.

8. Warranty

The Contractor warrants that the services provided will be performed in a professional manner and in accordance with the agreed-upon specifications.

In the case of custom-developed software, the contractor shall remedy any defects reported within the agreed warranty period by making corrections within a reasonable time. This is contingent upon the customer reporting defects in writing and in a clear and detailed manner immediately upon discovery.

No warranty is provided for defects resulting from specifications provided by the customer, unauthorized modifications made by the customer or third parties, improper use, or changes to the system environment.

To the extent permitted by law, the warranty provisions set forth above take precedence over any further statutory warranty rights.

9. Intellectual Property

Software, concepts, and documentation developed specifically for the customer may be used by the customer to the agreed-upon extent after full payment has been made. Unless otherwise agreed, the customer shall be granted a non-exclusive right of use, unlimited in time and territory, for its own business operations.

Existing frameworks, libraries, tools, SaaS products, and reusable components developed by SilentCreation GmbH remain the property of SilentCreation GmbH. The customer is granted only the rights of use necessary for the agreed-upon purpose.

10. Liability

The Contractor shall be liable for damages caused by willful misconduct or gross negligence. Liability for slight negligence is excluded to the extent permitted by law.

Liability for indirect damages, consequential damages, lost profits, and data loss is excluded to the extent permitted by law. The customer is responsible for maintaining adequate data backups, unless this is expressly agreed upon as a service.

To the extent permitted by law, liability is limited to the amount of the respective order. We reserve the right to claim liability under mandatory statutory provisions, in particular under the Product Liability Act.

11. Term of the Agreement and Termination

The term of the contract is determined by the individual agreement. Unless otherwise agreed, open-ended contracts may be terminated in writing by either party with 30 days' notice, effective at the end of the month.

We reserve the right to terminate the agreement without notice for cause. Payment for services already rendered is due in all cases.

12. Data and Documents After the Contract Ends

Upon termination of the contractual relationship, the Contractor shall return all data, documents, and access credentials received from the Client or delete them, as directed by the Client.

For hosted systems, the Contractor shall provide the Customer with reasonable assistance with data migration. Upon request, the Contractor shall confirm in writing that the data has been fully returned or deleted. This is subject to any statutory retention requirements.

13. Force Majeure

If the provision of services is rendered impossible or significantly impeded by force majeure, in particular natural disasters, pandemics, war, strikes, government orders, cyberattacks, failures of subcontractors, or similar events, the Contractor shall be released from its obligation to perform for the duration of the disruption.

If the disruption lasts longer than 30 days, either party may terminate the contract in writing.

14. Severability Clause

Should any provision of these Terms and Conditions be invalid in whole or in part, the validity of the remaining provisions shall remain unaffected.

The invalid provision must be replaced with a legally permissible provision that most closely reflects the economic purpose of the original provision.

15. Governing Law and Jurisdiction

Swiss law shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The exclusive venue for all disputes arising out of or in connection with these Terms and Conditions is Zurich, Switzerland.