Preliminary Clause: Original German Version Prevails

This website presents the General Terms and Conditions (GTC) of eSpectrum AG in both German and English languages for convenience. In the event of any inconsistency or discrepancy between the German version and its translated English version, the original German version shall take precedence and govern the interpretation, rights, and obligations of the parties. The English translation is provided for informational purposes only and does not hold the same legal significance as the German original.

By continuing to use our services or engaging in any business transactions with eSpectrum AG, you acknowledge your understanding and acceptance of this clause, and you agree that in case of any disputes arising from the interpretation or application of these terms, the original German version shall be the definitive reference.

1. Scope

The following General Terms and Conditions (hereinafter referred to as "GTC") apply to all business relationships between eSpectrum AG (hereinafter referred to as "eSpectrum AG", "we" or "Contractor") and the Customer (hereinafter referred to as "Customer", "You" or "Customer") for services and goods deliveries (hereinafter referred to jointly or individually as "Services"). Customers of eSpectrum AG are all customers of eSpectrum AG services of any kind.

Individual agreements concluded with the Customer take precedence over these General Terms and Conditions. Conflicting conditions of the Customer shall not be recognised.

eSpectrum AG reserves the right to amend these GTC at any time. All changes shall take effect upon publication of the new GTC on the Website. The relevant date for the applicability of the valid GTC is the date of acceptance of our offer.

These General Terms and Conditions come into force on 01.07.2023. eSpectrum AG may amend them at any time at its own discretion.

2. Services offered

The purpose of the company is the development, planning, activity as a general contractor in the manufacture as well as the operation, distribution and leasing of energy systems in Switzerland and abroad as well as the provision of analysis and consulting services in this area.

eSpectrum AG reserves the right to change the services offered at any time. The decisive date for the applicability of the applicable GTC is the date of the order confirmation.

3. Acceptance of the order/conclusion of the contract

Our written quotations are valid for 30 days from the date of issue, unless a different period of validity is stated on the quotation. With the written order confirmation, the client accepts the services listed in the offer under the conditions in these GTC.

A binding contract comes into existence with the written order confirmation or with the start of service provision by eSpectrum AG. E-mails are deemed equivalent to written form (see Clause 26).

4. Contractual obligations of eSpectrum AG

eSpectrum AG is obliged to perform its services carefully, conscientiously and faithfully. eSpectrum AG renders its services to the best of its knowledge and in accordance with the current state of the art.

eSpectrum AG is obliged to employ appropriately trained staff with the necessary specialist knowledge and to supervise and monitor them continuously during the execution of the order.

eSpectrum AG is authorised to carry out all actions which are part of the proper execution of the order. Upon completion of the order, eSpectrum AG shall, upon request, prepare a written report which reflects the essential content of the process and result of the provision of services.

5. Cooperation obligations of the customer

eSpectrum AG renders its services on the basis of the information provided by the customer. The Customer is obliged to support eSpectrum AG to the best of his ability and to provide all information and documents necessary for the proper execution of the order in a timely and correct manner. The Customer is solely responsible for the factual correctness and completeness of this information.

At the request of eSpectrum AG, the Customer shall confirm in writing the correctness and completeness of the documents submitted by him as well as his information and oral explanations.

If the Customer fails to fulfil his duties of cooperation, he shall bear the consequences of such breach of duty. In particular, he shall compensate eSpectrum AG for any additional expenses.

The Customer grants eSpectrum AG the necessary access to its premises/systems and provides the necessary infrastructure for performance. This concerns in particular the provision of competent staff with decision-making powers, the provision of test workstations, staging and storage rooms, training rooms, meeting rooms for workshops, parking spaces, the hardware and software environment (system environment), power, data, internet and telecommunication facilities, etc.

The Customer is obliged to procure all necessary licenses of standard products from third-party suppliers for the respective contractual term within the scope of the ordered supplies and services, as well as to comply with the licensing provisions for Free/Libre Open Source Software components.

The Customer is obliged to enable eSpectrum AG remote access to the data processing facilities on which any contractual software is installed and used. The Customer is responsible for activating the online access required for remote access and bears the connection costs.

The Customer is obliged to prevent unauthorised access to the supplied software. The Customer shall store the supplied original data carriers in a secure location against unauthorised access. The Customer shall comply with the notified security and administrative regulations. The management of user IDs and passwords is the responsibility of the Customer. These must be kept secret by the Customer, protected against unauthorised access and not passed on to third parties.

In order to avoid damage due to data loss, the Customer is obliged to ensure that its data stock is backed up daily, up to date, in machine-readable form and in accordance with the current state of the art and thus guarantees that these data can be restored with reasonable effort. Unless explicitly agreed otherwise, the Customer is solely responsible for data security and compliance with data protection regulations.

Insofar as software maintenance services are agreed, this shall only be provided for software used by the customer in the current programme version. If the customer uses a programme version that is not up to date, a check will be carried out at the customer's premises and the software will be updated for a separate fee, which depends on the number of programme versions not tracked at the customer's premises.

6. Delivery

Delivery dates are of an informative nature only. The delivery date shall be postponed accordingly if obstacles arise which eSpectrum AG is unable to prevent despite due diligence. In any case, the Customer shall accept minor exceedances of the delivery deadlines without resulting in claims of any kind whatsoever. If an agreed fixed delivery period is exceeded, default shall only occur by a special written reminder from the customer. The Customer shall not be entitled to withdraw from the contract.

Claims for damages by the customer are excluded in any case. In the event of unforeseeable events such as force majeure and delay in the procurement of goods, materials and tools, eSpectrum AG shall be entitled to extend the delivery times by the duration of the effect of such events; it shall be irrelevant whether such events occurred within or outside the operation of eSpectrum AG. The Customer is therefore not entitled to make any claims for default or other damages.

7. Permanent contracts

Unless otherwise agreed, permanent contracts shall be renewed for one (1) year at a time. Each Party may terminate permanent contracts with one (1) month's notice at the end of each contract year in writing, but not earlier than twelve (12) months.

The Customer shall immediately delete software for which temporary rights of use have been granted from the hardware on which it is installed or stored after termination of a permanent contract. The Customer is hereby expressly informed that he may no longer use such software after termination of a permanent contract.

8. Provision of services

The order confirmation or an individual contract shall be decisive for the scope and execution of all deliveries and services, standby and response times (SLA) as well as usage times and availability. License fees, materials or services not listed therein shall be charged additionally. Continuous or uninterrupted availability is not guaranteed for the software solution provided.

Insofar as this is reasonable for the customer, eSpectrum AG may supply modified or adapted hardware and software or perform other services deviating from order confirmations and contracts. Such changes are particularly reasonable if the agreed functionality is not impaired.

The Customer accepts the terms and conditions of purchase or use of the respective third-party provider pertaining to standard software. Furthermore, the Customer expressly accepts that eSpectrum AG may use Free/Libre Open Source software components and that these components are subject to license provisions applicable to the Customer.

The contractual service does not include brief telephone and electronic consultations which are equivalent to user training and questions which are to be answered by reading user manuals or other documentation.

9. Place of performance

Unless the parties have agreed a special place of performance in writing, the place of performance shall be the registered office of eSpectrum AG. In particular, there is no entitlement to execution on site at the customer's premises if services can be carried out by telephone or remotely (online direct access).

10. Transfer of ownership

All goods supplied by eSpectrum AG shall remain our property until the purchaser has paid all liabilities arising from the reciprocal business relations. The customer shall not sell, rent, mortgage or otherwise charge the delivery prior to the fulfilment of all liabilities. eSpectrum AG is entitled to register the retention of title at the place of residence or registered office of the purchaser in the public register maintained by the debt collection office if it deems it necessary. The costs for this shall be borne by the customer.

If the purchaser is domiciled abroad and the law applicable there does not know any retention of title register, the retention of title is hereby agreed in accordance with the law applicable there. eSpectrum AG is also free to enforce the retention of title at the competent court at the purchaser's domicile. 

The Customer shall immediately inform eSpectrum AG in writing of any foreclosure attempts or other impairment of these reserved goods by third parties. The Customer shall bear the costs of any necessary enforcement of the rights of eSpectrum AG, insofar as replacement cannot be obtained from third parties.

11. Transfer of risk

Benefit and risk shall pass to the Customer upon dispatch of the material/hardware/etc. deliveries from the registered office of eSpectrum AG or commissioned third parties, irrespective of any agreed delivery and assembly conditions. All transport is for the account and at the risk of the Customer. Insurance against damage of any kind is the responsibility of the Customer.

12. Change in performance

eSpectrum AG will accommodate requests for changes in the performance of services by the Customer as far as reasonably possible.

Insofar as the implementation of the requested changes affects the terms of the contract, in particular the expenditure of eSpectrum AG or the time schedule, the parties agree on an appropriate adjustment of the terms of the contract, in particular an increase in the remuneration and a postponement of any agreed deadlines.

13. Involvement of third parties

eSpectrum AG is entitled to use third parties for the fulfilment of its obligations and the exercise of its rights. 

14. Remuneration, expenses and charges

Remuneration is generally based on the time spent at the rates stated in the order confirmation. eSpectrum AG reserves the right to change its price rates after prior written information. Remuneration will be charged at the rates quoted at the time of the order confirmation.

Expenses such as travel expenses (time and travel) and other expenses shall not be included in the remuneration and shall be charged separately to the customer at the actual cost or industry standard rates, unless otherwise agreed.

The remuneration and expenses are in Swiss francs, exclusive of value added tax, any other statutory duties and licence fees, levies of any kind, customs duties, transport, packaging, insurance, etc.

The services provided by eSpectrum AG are remunerated by the customer at a fixed price or according to the time expended. Unless a flat-rate remuneration is agreed, the stated time expended is always only an estimate. In this case, the actual time expended for the provision of the services shall be charged. The rate of remuneration per hour shall be communicated to the Customer in the offer. In addition to the actual performance of services, the Customer's time expenditure shall include, in particular, participation in meetings and project meetings as well as any preparatory and follow-up work at any location.

Currency fluctuations, a significant postponement of the delivery date, changes in relevant regulations, further developments, deteriorated availability as well as changes in products, prices or conditions at suppliers entitle eSpectrum AG to price adjustments.

Additional costs as a result of incomplete, incorrect or late information or subsequent change requests shall be borne by the Customer.

15. Acceptance/Examination obligations/Right of rectification

Unless a special procedure has been agreed in writing, the Customer shall have the contractual service or the delivery incl. to check the data carrier, user manuals and other documentation immediately upon delivery or receipt, before productive use and at the latest within ten (10) calendar days after any notification of readiness for acceptance by means of appropriate tests and to immediately notify eSpectrum AG in writing of any defects, stating the description of the defect, the effect and the circumstances of occurrence. The Customer shall give eSpectrum AG the opportunity to rectify the defects.

If the Customer fails to check and/or immediately notify, refuses to sign an acceptance protocol despite a short grace period without any objective reason, or if the Customer uses deliveries or services without question during seven (7) calendar days, these shall be deemed to have been accepted. Defects which would have already been apparent at the time of acceptance or partial acceptance, but which were not immediately notified, may no longer be claimed at a later date.

16. Invoicing and creditworthiness

16.1. Invoicing

eSpectrum AG will issue an invoice for the services it has provided and the expenses and charges incurred after the service has been provided. The invoice shall contain a detailed statement of the date of the services rendered, the activities as well as the time spent and the expenses and charges to be paid. In addition, eSpectrum AG is entitled to issue interim invoices for services and expenses already rendered.

eSpectrum AG may also demand reasonable advances on services and expenses to be provided before the start of service provision:

• For fixed prices: 50% as a deposit within 14 calendar days of the date of the order confirmation or contract signing; 40% upon complete delivery or commissioning and 10% upon acceptance.
• By expenditure: following the reference month
• Licenses for software: 100% after signing the contract or before ordering by eSpectrum AG
• Permanent contracts: yearly in advance

The fees, including expenses and charges, are due for payment no later than 30 days after invoicing, unless otherwise stipulated in the order confirmation.

Discount deductions are not permitted and are strictly charged. CHF 50.00 will be charged for each additional charge.

16.2. Creditworthiness

eSpectrum AG reserves the right to obtain creditworthiness checks on the Customer and may forward customer data to third parties for this purpose.

17. Payment, default and offsetting prohibition

17.1 Payment

Invoices from eSpectrum AG are due for payment upon delivery and must be paid within 30 days of the invoice date at the latest, unless a special due date with a payment deadline is stated on the invoice. The expiry of the payment deadline is deemed to be the due date (Art. 102 para. 2 CO).

The payment dates shall also be complied with if the dispatch, transport, data connections or the commissioning or acceptance of supplies and services is delayed or impossible for reasons for which eSpectrum AG is not responsible or if insignificant parts of supplies and services are still missing or rework proves necessary which does not completely prevent the use of supplies and services.

17.2 Default

If the payment deadline expires unused, default shall occur without further notice, triggering the Customer's obligation to pay interest on arrears in accordance with Art. 104 of the Swiss Code of Obligations. If eSpectrum AG's reminder remains unsuccessful, a reasonable final deadline for fulfilment of the payment obligation is set. If this period also expires unused, eSpectrum AG may restrict, interrupt or discontinue the provision of its services, take the appropriate technical measures and terminate the legal relationship without compensation. All other rights of eSpectrum AG remain reserved.

In the event of default of payment by the Customer or if there is a serious risk that payment by the Customer will not be made in full or on time, eSpectrum AG shall be entitled, without prejudice to its other claims, to cease all deliveries and services, to withdraw the rights of use granted to the Customer (e.g. software), to demand the return of any delivered goods (e.g. data carriers, documentation, etc.) and to withhold deliveries ready for dispatch until new terms of payment and delivery have been agreed or eSpectrum AG has received sufficient securities in its own opinion.

17.3 Prohibition of set-off

The customer waives the right to offset any claims he may have against eSpectrum AG against claims eSpectrum AG may have against the customer (Art. 120 CO in conjunction with Art. 126 CO).

18. Copyright, Work Results and Right of Use

eSpectrum AG retains in full all copyrights to which it is entitled in the work results.

All pre-existing rights of use and protection (intellectual property rights as well as entitlements as such) as agreed work results arising in the course of fulfilling the contract, incl. plans, drawings, technical documents, user documentation, software incl. source codes, program descriptions, documentation, concepts, evaluations or development results as well as legally unprotected ideas, processes and methods belong to and shall remain the property of eSpectrum AG. Patent rights to inventions arising during the performance of the contract belong to eSpectrum AG. The customer may only dispose of this or make it available to third parties if he has been granted this in advance in writing.

Without express agreement to the contrary, the Customer is only granted the non-exclusive, non-transferable and generally limited right to use the Software and the associated user documentation in accordance with the terms of purchase or use of the third-party provider. The Customer is not entitled to grant sub-licenses of the Software or the User Documentation to third parties, to pass on, to sell or to lease such third parties. For Free/Libre Open Source Software Components, only the license terms applicable to such Components shall apply. The Customer may save software to a storage medium or load it into the main memory, insofar as it is required for use. The Customer is not entitled to make copies (except for archiving purposes, for temporary troubleshooting or to replace defective, necessary storage media) or to update, upgrade or otherwise expand the Software.

Upon full payment of the remuneration due, the non-transferable, unlimited, non-exclusive and geographically unrestricted rights to individually developed software shall be transferred to the Customer. Without written agreement, there shall be no right to release source code and development documentation. eSpectrum AG is entitled to further develop, modify, use and otherwise commercially exploit software and components, knowledge and procedures developed for the customer.

19. Confidentiality

eSpectrum AG is obliged to maintain the strictest secrecy towards third parties regarding all business, operational or technical information and processes entrusted to it by the customer or otherwise made known which are of a confidential nature. This obligation continues unrestrictedly after the termination of the contract. 

20. Retention of documents/right of retention 

eSpectrum AG shall carefully retain documents of all kinds received from the client (e.g. deeds, contracts, notes, correspondence, etc., whether in the original, as a copy or in draft form) and shall only use them in direct connection with the execution of the order, or insofar as a legal obligation exists.

21. Warranty and rights of defects

Insofar as the services are defective, the customer's claim is limited, as far as legally permissible, at the discretion of eSpectrum AG to rectification, reduction or replacement.

eSpectrum AG guarantees the properties of material/hardware/etc. deliveries exclusively within the framework of the guarantee granted by the manufacturers or third-party suppliers, which the customer expressly accepts.

A defect only exists if the intended use is demonstrably impossible or an important functionality or property is missing. Within the applicable warranty period, eSpectrum AG will remedy properly notified defects within a reasonable period of time.

Excluded from the warranty are consumables as well as damages resulting from wear and tear, poor maintenance, disregard of operating regulations, as a result of changes in the system environment, to source codes or databases, after installation and/or operating errors, damages resulting from third-party products incl. defective or license-infringing standard software and Free/Libre Open Source software components are attributable to interference with the service/software, such as modifications, adaptations, connection with other programs and/or use contrary to the contract, excessive strain, unsuitable operating equipment, chemical or electrolytic influences, defect repair work not carried out by eSpectrum AG, force majeure as well as other reasons for which eSpectrum AG is not responsible. Furthermore, there is no guarantee that the data transport and its availability will be uninterrupted.

If the Customer or third parties make changes or repairs or if the Customer does not immediately take all appropriate measures to reduce damage or if the Customer does not immediately give eSpectrum AG the opportunity to remedy the defect, the warranty obligation shall expire prematurely at the time of the aforementioned act or omission.

Claims for defects in software exist only if the reported defect is reproducible or can be shown by machine-generated output and was reported immediately after discovery. Insofar as this is reasonable for the customer, eSpectrum AG is entitled to provide the customer with a new version of software (e.g. update, maintenance release/patch) for the purpose of rectifying the defect, which no longer contains the reported defect or which rectifies the defect, or to develop an alternative solution.

If purely consultancy services are provided by eSpectrum AG, it shall not be liable for the accuracy and suitability of the consultancy services, in particular for the achievement of the purpose pursued with the commissioned consultancy or the intended purpose.

22. Liability

eSpectrum AG renders the agreed services with due care. eSpectrum AG is liable for damages insofar as they have their direct cause in a proven intentional or grossly negligent breach of contractual obligations or other duties of care by eSpectrum AG.

To the extent permitted by law, any further liability based on contract or on any other legal ground is expressly excluded.

Liability for the recovery of data is generally excluded unless eSpectrum AG has caused its destruction intentionally or through gross negligence.

The customer is liable for all damages caused directly or indirectly to eSpectrum AG by him or by persons for whom he is responsible (including auxiliary personnel), whether by action, tolerance or omission.

23. Force majeure

In the event of force majeure, i.e. the occurrence of events beyond the control of the affected party (such as, for example, official orders and measures, labour disputes, cases of natural disasters, epidemics and pandemics, power failures lasting several days, etc.), which substantially impair or render impossible the performance of the service, the affected party shall notify the other party in writing as soon as possible of the nature of the event concerned and its expected duration. In such case, the affected party shall be entitled to postpone performance to the extent of the duration of the impediment and a reasonable start-up period but shall resume performance promptly upon the cessation of the relevant event.

The parties will endeavour in good faith to minimise the impact of an event of force majeure.

24. Termination of the contract

The contract shall terminate upon the fulfilment of the agreed services. The cases of extraordinary termination or the cancellation of the contract shall remain reserved.

25. Data protection

eSpectrum AG only collects and processes personal data that is necessary for the performance of the contract concluded with the customer, for the fulfilment of its obligations, the maintenance of customer relations, the guarantee of a high quality of its services, the security of persons, infrastructure and operation as well as invoicing, within the framework of the statutory provisions, in particular in compliance with the applicable data protection laws.

If third parties are involved, they must provide sufficient contractual guarantees to ensure adequate data protection. The Customer agrees that, to this extent, cross-border data transfer and data processing may take place abroad. The customer remains responsible for the information and consent of the persons concerned.

26. Form

Statements in text form which are transmitted or recorded by electronic means (e-mail, internet, etc.) are considered as written statements of one party. Such statements are deemed to have been received at the time of the recipient's knowledge.

Amendments to the contract and notices of termination must always be in writing with legally valid signatures (electronic media are not sufficient).

27. Severability clause

Should any of the provisions of these General Terms and Conditions be or become unlawful, invalid or unenforceable for any reason, this shall not affect the validity of the remaining provisions. Unless otherwise agreed, the invalid provision shall be deemed to be replaced by a valid provision which takes into account as far as possible the economic purpose of the provision and the intention of the parties at the time of conclusion of the contract. The same applies to any loopholes in these GTC.

28. Applicable law and jurisdiction

eSpectrum AG will endeavour to resolve any differences amicably.

Disputes arising from these GTC - with the exception of the provision in Clause 10 - shall be governed exclusively by Swiss law, excluding the conflict of laws and the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (Vienna Sales Law, CISG, SR 0.221.211.1).

These GTC and, subsidiarily, the provisions of the Swiss Code of Obligations shall apply.

The exclusive place of jurisdiction - with the exception of the provision in Clause 10 - is the registered office of eSpectrum AG.