Terms and conditions

O’Matic Technologies Sàrl

Status as of 27 May 2024

1. Definitions

Application: Custom-developed software for an electronic device, such as a smartphone, computer, touchscreen tablet, smartwatch, or any other type of software, including web applications.

Endorsement : Contractual document signed by the customer, supplementing or amending the Contract and/or the General Terms and Conditions.

Application store : Platform for publishing and downloading applications, such as the App Store, Google Play Store or any other similar platform.

Bug: A design flaw in a computer program that causes it to malfunction.

Source code: Set of instructions at the source of a computer program, expressed in a language that humans can easily understand and modify.

General conditions: The present document.

Contract: All service offers and amendments signed by the customer.

Operation: Phase beginning with publication of the Application on an Application Store.

Source files: Working documents used by the designer, among others, to produce a project consisting of files ending in .ai, .psd, .indd, .aep, or any other file resulting from work on a specific software program.

Deliverables: Any tangible or intangible work delivered to the Customer by digital or physical means, depending on the Project.

Modification: Any change, by the Customer, to the specifications and/or functionalities of the Project.

Service provider: O’Matic Technologies Sàrl.

Project: Set of Deliverables and Services defined by a Contract between the Service Provider and the Customer.

Web server: Computer server that responds to requests from the World Wide Web (WWW) over a public (Internet) or private (Intranet) network.

Services: Any service offered by the Service Provider to the Customer that does not consist of a Deliverable.

2. General

These General Terms and Conditions establish the provisions applicable to all services provided by O’Matic Technologies Sàrl (hereinafter referred to as “the Provider”) to its customers (hereinafter referred to as “the Customer”) and form an integral part of any agreement concluded between these two parties.

The services that the Service Provider undertakes to provide to the Customer are described in a service offer sent and signed by the Customer (hereinafter referred to as “the Contract”).

In the event of any discrepancy between these General Terms and Conditions and the Contract, the provisions of the latter and any appendices shall prevail.

Any deviation from these General Terms and Conditions must be agreed in writing and signed by the Parties.

Any offer by the Service Provider to enter into a contract shall be binding until the expiry of a specified period. In the absence of such a deadline, the latter is set at 15 days.

The offer is based on the information provided and may be inappropriate if additional information becomes available or if specifications change.

Any exceptional work requested by the customer or its partners that does not fall within the scope of the services defined in the offer will be the subject of an additional quotation, which will only be executed after agreement by both parties.

3. Main obligations

3.1 From the Service Provider

The Service Provider undertakes to provide the services defined in the Contract on behalf of the Customer, as well as any possible Addendum.

The Service Provider undertakes to do its utmost to meet the deadlines set out in the Contract, which are, however, indicative only.

In addition, the Service Provider undertakes to use its best endeavours to perform the Contract in the Customer’s interest without, however, guaranteeing the results.

3.2 From the Customer

The Customer undertakes, on the agreed due dates and conditions, to pay the determined or determinable sums in payment for the provision of the Services and/or Deliverables.

The Customer agrees to cooperate fully with the Service Provider at all times and to promptly provide the Service Provider with any information required for the performance of the service.

4. Payment

4.1 In general

All rates and prices are quoted in Swiss francs (CHF), excluding VAT in all commercial and contractual relations between the Service Provider and the Customer.

All payments from the Customer to the Service Provider are made to the bank account usually mentioned on the second page of the invoice.

4.2 Due dates

Unless otherwise agreed, the Customer is required to pay a deposit to the Service Provider, upon placing the order, corresponding to 30% of the total amount of the Project. For projects involving design and development, 20% is due after validation of the design. The balance is due 30 days after delivery of the Project.

The Customer understands and accepts that the Service Provider will only commence execution of the Project upon receipt of the deposit.

Any invoice issued and dispatched by the Service Provider shall be deemed to constitute a formal notice to pay within 30 days of receipt by the Customer.

After this period, 3 reminders will be sent to the Customer:

The Customer understands and accepts that the Contract and these General Terms and Conditions constitute a provisional release within the meaning of Article 82 of the Federal Law on Debt Collection and Bankruptcy (LP).

5. Warranty and liability

5.1 In general

The Service Provider is obliged to perform the Contract faithfully and to the best of his ability, but is only liable to the Customer in the event of gross negligence or wilful misconduct (Art. 100 para. 1 of the Federal Act supplementing the Swiss Civil Code).

Upon delivery of the Project, the Customer must check the Deliverables sent to him without delay. If a defect is found (lack of functionality, missing file which was provided for in the Contract, etc.), the Customer must notify the Service Provider in writing within 10 days.

In the event of a bug or hidden defect, in particular those which an initial check could not objectively detect, it is the Customer’s responsibility to report it immediately upon discovery. If the Customer fails to notify the Service Provider of a defect in good time, the Customer forfeits the right to invoke the defect against the Service Provider.

Under no circumstances shall the Service Provider be liable to the Customer or any third party for any direct or indirect damage, loss of profit or loss of earnings that may arise in connection with the Project.

The Customer indemnifies the Service Provider against any claims or legal action by third parties of any nature whatsoever in Switzerland or abroad and undertakes, where applicable, to fully compensate the Service Provider for any sentence incurred and costs incurred (in particular court costs and legal fees).

Delays caused by factors beyond the control of the Service Provider, such as technical problems, server failures, labor disputes, delays by suppliers or others are not covered by the warranty.

Any corrections to the project design cannot be included in the warranty once the project has been validated by the customer.

5.4 For design services

If the Customer is not satisfied with the result provided by the Service Provider, the Customer may call upon the 30-day guarantee to make minor modifications (change of the charter (colors, typography, icons, illustrations, etc.), modification of a page layout or visual, etc.) at no additional cost.

In the event of modification of the source files by the customer or a third party, the customer irrevocably forfeits all rights to the warranty.

The warranty does not cover any changes resulting in a complete redesign of the project or omission of information from the Contract.

Once the design has been validated by the customer, the customer loses all rights to the warranty.

5.3 For development services

In any case, the warranty is limited to three months from the project delivery date.

In the event of modification of the source code by the customer or a third party, the customer irrevocably forfeits all warranty rights.

The warranty does not cover any damage resulting from improper use by the customer or third parties.

5.4 External suppliers

The Service Provider has formal contracts with external suppliers to ensure high quality standards. In the event of supplier failure, the Service Provider undertakes to use all reasonable means to resolve the problem, including modifications, corrections or remedies in accordance with the terms of the contract.

The Service Provider undertakes to exercise due care towards its customers. This includes the careful selection and supervision of external suppliers to ensure that the services provided meet agreed quality standards. However, the Service Provider cannot guarantee the performance or quality of services provided by third parties.

In the event of a problem with an external supplier, the Service Provider will immediately inform the Customer and work with him to resolve the situation satisfactorily. The Service Provider will endeavor to mitigate any negative impact on the project and will work closely with the Customer to find appropriate solutions.

5.4.a In the event of rejection of the Application by an Application Store

Should the application developed by the Service Provider be rejected by an application store (Google Store, Apple Store), the Service Provider shall not be held liable if this decision relates to the store’s General Terms and Conditions.

5.4.b In the event of a binding update to an Application Store

If one of the Application Boutiques were to modify its technical conditions after the publication of the Application, the Service Provider would not assume any responsibility towards the Customer, but may warn the latter to provide for the necessary corrections on a new contract.

5.4.c In the event of discontinuation or modification of a third-party product/service used in the Project

If a third-party service used in the Project is withdrawn from the market or undergoes major modifications which hinder, prevent or modify the proper functioning of the Application after its delivery, the Service Provider will not be held responsible for these problems. However, the Service Provider may inform the Customer in order to discuss the necessary corrective measures within the framework of a new contract.

6. Contract start

The Contract is considered valid when both parties have accepted the offer and signed the Contract.

Once the Customer has paid the down-payment specified in the Contract and wishes to exercise his right of revocation within the meaning of Article 40e of the Swiss Code of Obligations, the Contractor may be entitled to claim compensation if investments have already been made for the project.

7. Intellectual property

Unless otherwise agreed, the intellectual property of the final form of the Project is transferred by the Service Provider to the Customer once the Contract has been paid in full.

If no mention is made of what happens to the source files, they remain the property of the Service Provider. If no such mention is made and the customer wishes to have the source files, an amendment to this document must be requested.

If the Contract provides for a Project to be made available in the form of a License, the terms and conditions thereof must be defined in the Contract. The intellectual property of the Project (source files and source code) remains entirely in the hands of the Service Provider, who may reuse this intellectual property as he sees fit.

The Customer warrants to the Service Provider that all elements likely to be protected by intellectual property that it transmits to the Service Provider (logo, graphic charter, photographs, illustrations, etc.) are its property or that it benefits from a valid license authorizing it to use/transmit these elements in the context of the Project, which may be verified by the Service Provider if necessary.

Unless the Customer requests otherwise in writing, the Customer authorizes the Service Provider to cite the Project and the Customer’s name or brand, and to display screenshots, scenarios and/or descriptions on the Customer’s website and social networks or during physical presentations.

8. Data supplied by the Customer

The Customer understands and accepts that the Service Provider assumes no responsibility for the data supplied to it during the test phase, in particular in the event of a computer attack, data leakage or any other accidental deletion/corruption of data.

9. Data protection

The Customer understands and accepts that it alone is responsible for ensuring that the Project it carries out in collaboration with the Service Provider complies in all respects with the legal framework applicable to data protection in Switzerland (New Data Protection Act (nLPD) and other possibly applicable cantonal laws) or in Europe (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC “RGPD” and other applicable national laws) and that the Service Provider does not provide any legal advice in this regard.

The Customer confirms that his attention has been drawn to the concepts of Privacy by Design and Privacy by Default.

The Customer expressly confirms that it is entitled to transfer to the Service Provider any personal and/or sensitive third-party data that the Service Provider may receive from the Customer, in particular for the purpose of testing the correct operation of the Project.

The Customer indemnifies the Service Provider against any claims or legal action by third parties of any nature whatsoever, whether in Switzerland or abroad, and undertakes, where applicable, to fully indemnify the Service Provider against any such claims and related costs (including court costs and/or attorney’s fees).

10. Adding and/or modifying a project in progress

If, during the course of the Project, the Customer wishes to add or modify functionalities, Deliverables or Services to the Project, the Service Provider will send the Customer an additional offer in the form of an Amendment. Once signed by the Customer, this Amendment will form an integral part of the Contract. Article 4. Payment shall apply in all other respects.

11. Maintenance

Maintenance only applies to IT development projects and cannot be applied to design projects.

Except where expressly provided for in the Contract, Project maintenance is not included.

12. Early termination of the Contract

The Service Provider reserves the right to suspend the provision of its services, or even to terminate the contract with immediate effect, in the event of unlawful use or use which does not comply with its instructions by the Customer or those for whom the Customer is responsible in any way whatsoever.

The Service Provider also reserves the right to terminate the collaboration should the Customer fail to meet its obligations.

In the event of termination of the Contract, the Service Provider is not obliged to refund the deposit or any sum paid by the Customer.

However, the Customer will be obliged to pay any additional costs incurred by the Service Provider.

13. Duty of confidentiality

The Service Provider and the Customer agree that all data and information exchanged between them will be treated confidentially:

Confidential data may not be used for any purpose other than the performance of the business relationship or the related accounting statements.

The confidentiality of data and information continues even after the end of the business and contractual relationship. Obligations arising from law and/or government orders are reserved.

Article 7. Data supplied by the Customer is expressly reserved.

The Service Provider undertakes, in the event of presentation of the project to third parties (presence on the latter’s website or social networks, physical presentation or other) to anonymize certain parts of the project if the request has been made in advance by the Customer.

14. Right of assignment and subcontracting

The Service Provider is duly authorized by the Customer to subcontract all or part of its contractual obligations to a third party of its choice (see 5.4 External suppliers).

The Service Provider may also assign or transfer to third parties its rights and obligations arising from the contractual relationship relating to the execution of the Project. In the event of an assignment or transfer, the Service Provider shall inform the Customer in writing of the identity of the assignee or transferee, as well as the content of the assignment or transfer.

15. Written form

The Service Provider and the Customer agree that the Contract and/or these General Terms and Conditions may only be amended, supplemented and/or deleted in writing.

16. Validity and divisibility

Should one or more provisions of the Contract, of these General Terms and Conditions or of any other agreement relating to the contractual relations between the parties be declared null, invalid, void and/or ineffective, this will have no impact on the other provisions or on the contractual relations as a whole. In such a situation, the Parties agree to substitute one or more provisions to replace the invalid one(s); failing this, the contractual relations will be completed according to their hypothetical intention, by incorporating one or more new contractual provisions aimed at obtaining economic effects equivalent as far as possible to the excluded one(s).

17. Applicable law and settlement of disputes

Swiss law is exclusively applicable, to the exclusion of the Federal Law on Private International Law of December 18, 1987 (LDIP, RS 291).

In the event of any dispute arising out of or in connection with the contractual relationship between the Parties, the Parties have mutually agreed that the ordinary Courts of the Republic and Canton of Geneva shall have exclusive jurisdiction, subject to possible recourse to the Federal Court.