Terms and Conditions

The following terms and conditions are only a translation for your convenience, the binding terms and conditions can be found on the German page.

1. Scope of application and validity of the general terms and conditions

1.1. These General Terms and Conditions (hereinafter referred to as "GTC") govern the conclusion, content and performance of contracts between Vanillaplan AG, Leonhardsgraben 52, CH-4051 Basel (hereinafter referred to as "Vanillaplan") and its customers (hereinafter referred to as "Customer") for the delivery of products or works of Vanillaplan and the provision of related services of Vanillaplan, in particular the transfer of use of software of Vanillaplan to Customers, as well as the related rights and obligations of the parties.

1.2. These GTC are an integral part of all offers and contracts between Vanillaplan and the Customer (hereinafter referred to as "Parties") and related services.

1.3. These GTC shall apply for an indefinite period of time and thus also for all subsequent services as long as no deviating written agreement has been reached between the parties.

1.4. The General Terms and Conditions published on the Vanillaplan website at the time of the conclusion of the contract, be it verbally or in writing, tacitly or formally agreed, shall be authoritative.

1.5. These GTC apply exclusively. Any terms and conditions of the customer that conflict with or deviate from these GTC shall not be recognised, unless Vanillaplan has expressly agreed to them in writing in an individual case.

1.6. Furthermore, these GTC regulate the rights and obligations of the Customer and Vanillaplan in the context of the processing of personal data on behalf of the Customer.

2. Subject matter of the contract

2.1. Vanillaplan operates the web-based software "Vanillaplan" for deployment and capacity planning, hosted on a central server. "Vanillaplan" includes various functions that are constantly being expanded. Vanillaplan" is primarily a resource and capacity planning tool in which the customer can store and edit data, images and documents of employees, vehicles / machines, orders / projects, among other things.

2.2. The contract concluded between Vanillaplan and the Customer is defined as a "Software as a Service" contract (hereinafter "Contract"). Within the scope of this Contract, these GTC regulate the provision of "Vanillaplan" by Vanillaplan and the use of "Vanillaplan" by the Customer by means of remote access via the Internet ("SOFTWARE-AS-A-SERVICE") as well as the enabling of the storage of data by the Customer on servers operated on behalf of Vanillaplan ("HOSTING").

2.3. Vanillaplan grants the Customer the non-exclusive right to use the Software provided as well as the associated documentation as intended for the duration of the corresponding contract and under the conditions of these GTC. The permitted scope of use of the software results from these GTC and any other contractual documents. All rights to existing intellectual property or intellectual property arising from the performance of the contract with respect to services and products of Vanillaplan shall remain with Vanillaplan or the authorised third parties.

2.4. The transfer of use or authorisation to use the software granted to the customer may not be transferred to third parties or used by third parties. Accordingly, the transfer of use or authorisation to use the software shall also not apply to any subsidiaries or sister companies or to any parent company of the customer.

3.Conclusion of the contract

3.1. A contract between the parties shall only come into existence upon the issuance of the written order confirmation by Vanillaplan. Until this point in time or the rejection of the order by Vanillaplan, the customer remains bound to the order.

3.2. The scope of the contract and the agreed services shall be based on the respective offers listed on the website www.vanillaplan.ch at the time of the order.

3.3. All information provided by Vanillaplan outside of contractual relationships, namely in brochures and other publications, is non-binding, unless expressly stated otherwise in writing by Vanillaplan.

4. Contract duration; contract extension and termination

4.1. The contract between the parties is concluded for a period of 1 year.

4.2. Unless otherwise agreed, the contract may not be terminated during the agreed contract period. The provisions of extraordinary termination remain reserved.

4.3. Both contracting parties may terminate the contract with a notice period of 3 months for the first time at the end of the agreed contract period. The termination must be made in writing by registered letter or by e-mail after acknowledgement of receipt. Vanillaplan is also entitled to terminate the contract by e-mail to the e-mail address provided by the customer for notifications relevant to the contract.

4.4. If the right of termination is not exercised at the end of the agreed contract period, the contract shall be tacitly extended by 1 year. The same shall apply in the subsequent period if the contract is not terminated by one of the parties with a notice period of 3 months to the end of the extension period. The agreed contractual conditions shall also apply to an extension.

5. Provision of services

Vanillaplan may either provide the contractually owed services itself or have them provided in whole or in part by third parties.

6. Deadlines

Dates for connection, delivery, installation and commissioning are, subject to express assurances in the individual contract, only approximate values and are not binding.

7. Handover and acceptance

7.1. Vanillaplan fulfils the performance owed by making the Software available. A formal acceptance with the participation of both parties shall only take place if this is expressly provided for in the individual contract.

7.2. Vanillaplan fulfils the performance owed by making the Software available. A formal acceptance with the participation of both parties shall only take place if this is expressly provided for in the individual contract.

8. Prices

8.1. All prices are quoted in Swiss francs exclusive of VAT.

8.2. Vanillaplan is entitled to change your prices at any time. For individual contracts already concluded, the new prices will apply from the next contract renewal in accordance with point 4.4. In the event of increases in the subscription price that are announced to the customer less than three months before the next contract extension, the customer has the right to terminate the contract with three months' notice in accordance with clause 4.3.

9. Terms of payment

9.1. Vanillaplan's invoices for services and deliveries arising from all contractual relationships shall be paid in advance against invoice, unless otherwise agreed.

9.2. The customer shall inform Vanillaplan in a timely manner and in concrete terms of any desired formal requirements in the invoicing and these shall be taken into account as far as possible. However, any form requirements requested by the customer shall not affect the payment deadlines set by Vanillaplan.

9.3. Vanillaplan is entitled to demand other security from the customer at its own discretion.

9.4. Non-compliance with the payment deadline will trigger default of payment without further ado and entitle Vanillaplan to 8% interest on arrears per year as well as a processing fee of CHF 30.00 excl.

10. Travel time

Travel time is considered working time. For the compensation of travel time, Vanillaplan may introduce a lump sum compensation instead of the usual conditions, which covers both the time spent and the expenses.

11. Additional expenditure

Depending on the content of the contract, certain training, support, etc. are already included in the scope of services.

Vanillaplan may invoice the following services in addition to a contractually agreed compensation on a time and material basis:

Services that are not included in the contractually defined scope of services;

• Services for the analysis and elimination of malfunctions which were not caused by delivered or maintained components or which are not reproducible (operating errors, incorrect manipulations, unauthorised interventions, effects of third party products, errors in the data material provided by the customer or third parties, changes to the data files which are not carried out via the ordinary and licensed programs of Vanillaplan);

• Services for the elimination of malfunctions caused by the physical influence of third parties or force majeure (physical damage by the customer or third parties, power failure, overvoltage, lightning strike, damage caused by the elements, animal damage, influences caused by unusual physical, chemical or electrical loads);

• Expenses incurred because the customer has breached its obligations to cooperate;

• Expenses incurred by Vanillaplan in connection with compliance with the provisions of data protection law or with the commissioned processing of personal data;

• Expenses caused by software/virus attacks.

11.1. Unless otherwise agreed, all transferable rights to the artefacts created within the scope of the provision of services, in particular copyrights and rights of use and exploitation, shall remain exclusively with Vanillaplan.

12. Default of payment by the customer

12.1. If the customer is in default with the payment of an invoice of Vanillaplan, Vanillaplan may claim default interest of 8%. In addition, Vanillaplan may, after setting a period of grace, at its own discretion either:

• continue to adhere to the contract, sue for payment of the outstanding claim plus damages for delay and refuse to continue to provide services until proper payment has been made, or

• continue to adhere to the contract, sue for payment of the outstanding claim plus damages for delay and definitively waive further performance of services, or

• withdraw from the contract, demand the return of all delivered products or block access to the software and charge the contractually agreed compensation in full as damages for the services already provided.

12.2. In cases 2. and 3., Vanillaplan may additionally claim liquidated damages for the loss of future services. This amounts to 50% of the contract value of the products not yet delivered at that time and the services not yet rendered. Vanillaplan reserves the right to claim further damages upon corresponding proof.

13. Job processing of personal data

13.1. The contract concluded between Vanillaplan and the customer is defined as a "Software as a Service" contract. Significantly, the client sometimes also deposits personal data, images and other documents on Vanillaplan's web-based software.

13.2. According to the applicable data protection regulations such as the Data Protection Act (DPA) and the EU General Data Protection Regulation, the Customer is the "controller" and Vanillaplan is the "processor" of personal data.

13.3. The customer is responsible for the processing of the information and retains full legal power of disposal over the information processed on its behalf. The information processed by Vanillaplan may only be used for the purpose specified in the contract. Vanillaplan is, however, entitled to use the customer's data (if necessary with an order to third parties) in compliance with the data protection provisions for research purposes, analysis, further development, maintenance and troubleshooting.

13.4. Vanillaplan may transfer the order processing to third parties. The processing of the Client's information as well as its storage and archiving shall in principle take place in Switzerland. The processing of personal data outside of Switzerland may only take place in a country with an appropriate level of data protection.

13.5. Vanillaplan shall take the necessary organisational and technical measures to separate the customer's information, in particular from yours and other customers' information, and to protect it from unauthorised access, unauthorised processing and loss. Vanillaplan is obliged to inform the customer immediately of any special incidents (data loss, hacker attack, unauthorised access).

13.6. The client alone shall be responsible for assessing the permissibility of the commissioned processing and for safeguarding the rights of data subjects. The client alone shall be liable as the responsible party for compensation of damages suffered by a person due to inadmissible or incorrect data processing within the scope of the commissioned relationship.

14. Duty to cooperate

14.1. The Customer must create all conditions within its sphere of influence to enable Vanillaplan to provide the services owed. The customer is responsible in particular for the following areas:

• Overall responsibility for the operationally successful use of the contractual products: Specification of the problem to be solved; selection of the products; adaptation of the internal processes to the requirements of the contractual products as far as necessary and reasonable; orientation of Vanillaplan about the operational processes of the customer, as far as these are relevant for the provision of services; continuous information about upcoming extensions of use; strategic decisions or changes of the technical or legal environment with impact on the supported IT- environment;

• Training: Training of employees in relation to the contractual products; provision of general user knowledge and, if necessary, training of superusers;

• Fault and error reporting: Immediate information on the occurrence of faults and errors in the form specified by Vanillaplan; description and documentation of the faults occurring as accurately as possible;

• Data responsibility: Provision of the data to be processed; input of the data; data transfer and recovery of the data; responsibility for data integrity and compliance with data protection regulations;

• Data backup: If necessary, execution and control of the data backup, secure storage of the backup;

• Compliance with the usage rules specified by Vanillaplan;

• Support of Vanillaplan: Assistance with work at the customer's premises as instructed by Vanillaplan Execution of work assigned to the customer by Vanillaplan;

• Customer components: timely provision, operation and maintenance of components to be procured by the customer;

• Communication: provision and securing of data communication, internet and telephone connection; management of the interface with the corresponding providers; maintenance of the technical equipment for remote maintenance to be installed by the customer;

14.2. The customer is obliged to provide the data necessary for the execution of the contract and the service completely and correctly and to notify any changes without delay. This applies in particular to address data, bank details, e-mail address and the number of employees. Customers shall notify Vanillaplan immediately of any changes of address and other necessary information (such as number of employees).

14.3. It is the sole responsibility of the customer to ensure appropriate security in the event of employee mutations, in particular with regard to passwords. In particular, it is the customer's responsibility to deactivate user accounts in good time when the corresponding employee leaves. Any change of an "Account Owner" (displayed in the settings) must be reported to Vanillaplan without delay.

14.4. Customers must secure their own system in such a way that it does not become a source of danger for others and that neither the security, the integrity nor the availability of the infrastructure used by Vanillaplan for its services is impaired. Vanillaplan may block services in whole or in part if the customer's systems compromise the security, integrity or availability of the infrastructure.

14.5. In principle, it is the customer's responsibility to make backup copies of their data. The search for lost data by Vanillaplan is charged at cost and cannot be guaranteed.

14.6. The customer is responsible for ensuring that the address designations chosen by him, such as domain, e-mail addresses, do not infringe the rights of third parties.

14.7. Customers undertake to change passwords regularly. It shall manage passwords and other access data carefully and keep them secret. Vanillaplan will never ask the customer to hand over a password.

14.8. Customers are obliged to inform Vanillaplan immediately as soon as it becomes aware that unauthorised third parties are aware of the password. Vanillaplan undertakes to immediately (as soon as possible) block access to the data of the customer concerned following such information until other passwords and access codes are installed.

14.9. If a customer fails to inform Vanillaplan of the misuse of his passwords, he must pay for the unauthorised services in accordance with the contract. It is therefore in the interest of customers to keep their access data under careful control.

14.10. The customers undertake not to use the software in an unlawful manner, namely

- not to harass anyone with unsolicited communication attempts and advertising

- to comply with the applicable legal regulations of Switzerland and the EU, e.g. not to send chain letters or fraudulent offers or to upload or publish any other immoral or illegal content of whatever kind on Vanillaplan.

14.11. Clients themselves are responsible for the data and information processed in the software. They should not violate Swiss legal regulations. Where necessary, international law must also be taken into account.

14.12. Vanillaplan shall not be liable for any damage resulting from the failure of the customers to comply with the obligations referred to in this clause. On the other hand, customers shall be liable to Vanillaplan for all damage resulting from the breach of their contractual obligations under this clause and unlawful acts.

14.13. Vanillaplan is entitled to immediately block access to the Software in the following cases

- if a customer endangers the security of the Software through improper and criminal activities,

- if a customer accesses data of other users without authorisation,

- if Vanillaplan becomes aware that a Customer is storing illegal or immoral content in the Software.

14.14. In the event of a criminal offence, Vanillaplan is entitled to inform the police.

14.15. Further duties to cooperate may also arise mutatis mutandis from the scope of the services agreed in the individual contract.

15. Exclusion of warranty in the event of self-infliction

Unauthorised rectification by the customer or by third parties is excluded. If the customer handles hardware or software products improperly, modifies or repairs them himself or has such actions performed by third parties not authorised by Vanillaplan, he shall lose all warranty and liability claims.

Moreover, Vanillaplan may charge for the additional expenditure caused by this at the respective valid conditions.

16. Warranty

16.1. The software provided has been developed in compliance with recognised rules of programming technology. The function of the software was tested before conclusion of the contract and corresponds to the agreed programme specifications.

16.2. Vanillaplan will provide the customer with a demo version of the software prior to conclusion of the contract and will also allow the customer to test the software for a period of four weeks. This gives the customer the opportunity to convince himself in detail of the functionality of the software. Under this aspect, the warranty of Vanillaplan is limited accordingly.

16.3. Vanillaplan aims to provide your services as far as possible, 7 days a week, 24 hours a day, without disruption or interruption.

16.4. Vanillaplan undertakes to keep its own systems and the Service, as well as the payment system with credit cards, up to date in terms of technical security.

16.5. Vanillaplan is available for support requests during normal business hours between 08.00h - 17.00h. Vanillaplan undertakes to carry out maintenance work, expansion of services, introduction of new hardware and software, if possible, not during normal business hours, if this requires an interruption of operations. It will inform customers as soon as possible of any foreseeable interruptions to operations.

16.6. In the event of unforeseeable interruptions in service, Vanillaplan will inform its customers as soon as possible at the e-mail address provided by the customer. It undertakes to remedy the disruption as soon as possible within the scope of its possibilities.

16.7. Further warranty claims are excluded. In particular, Vanillaplan assumes no warranty for information in product descriptions or specifications and is in no way liable for malfunctions or interruptions. Furthermore, the Customer is solely responsible for the necessary technical equipment as well as for the program (software) or device (hardware) protection of its IT infrastructure. Vanillaplan does not assume any guarantee for the compatibility of its services with the Customer's hardware or software.

17.Liability

17.1. Vanillaplan undertakes to ensure state-of-the-art security in systems, programmes, etc. that it owns and over which it has influence. This also applies to the payment systems with credit cards.

17.2. Vanillaplan undertakes to observe the rules of data protection and data security within its sphere of influence. This also applies to the employees and freelancers of Vanillaplan.

17.3. In the event that there are disruptions in access to the agreed services, Vanillaplan will inform the customer immediately by e-mail. Vanillaplan limits its liability to damages that are due to intentional breaches of contract or gross negligence on the part of Vanillaplan or its employees. If such arise, customers should inform Vanillaplan of defects and faults without delay.

17.4. Any further liability of Vanillaplan for direct or indirect as well as direct or indirect damages including consequential damages is expressly excluded. Any liability for auxiliary persons as well as for financial losses such as lost profit, unrealised savings, the customer's own expenses, recourse claims of third parties, damage caused by delay, damage resulting from loss of data and data corruption, damage resulting from the commercial use of the products and for costs resulting from the involvement of third parties is excluded to the extent permitted by law.

17.5. Customers are aware that errors can creep in even with careful software development and maintenance, so that Vanillaplan cannot vouch for the complete achievement of all hoped-for goals.

17.6. Vanillaplan shall not be liable for defects and malfunctions for which it is not responsible, in particular for security defects and operational failures of third-party companies with which it cooperates or on which it is dependent.

17.7. Excluded from liability are defects and malfunctions for which Vanillaplan is not responsible, such as natural wear and tear, force majeure, power failure, improper handling, excessive use, unsuitable operating materials or extreme environmental influences, interventions by the customer or malfunctions by third parties, e.g. viruses, worms, which occur despite the necessary current security precautions.

17.8. Vanillaplan is expressly not liable for any negative effects that other programs on the Customer's computers may have on the use of the Software.

17.9. Vanillaplan expressly points out to customers that data protection and data security for data transmissions in open networks such as the Internet cannot be comprehensively guaranteed according to the current state of the art.

17.10. Vanillaplan informs customers on its website about data protection and other risks as well as security precautions that they must observe.

17.11. Vanillaplan shall not be liable for any damage incurred by the Customer as a result of the content of the data stored by the Customer on the Software or the transmission of the information concerned to the Internet or Intranet.

17.12. Vanillaplan accepts no liability whatsoever if a customer breaches its data protection and confidentiality obligations towards third parties or third-party companies within the software. The outsourcing of data and processes does not release customers from their own responsibility.

18. Exclusion of set-off

The customer may only set off such counterclaims against Vanillaplan's claims that have been acknowledged by Vanillaplan in writing.

19. Confidentiality

19.1. Vanillaplan and the customer mutually undertake to keep confidential all perceptions and documents that belong to the business confidentiality sphere. This obligation does not apply to information that is demonstrably publicly known or becomes publicly known without the assistance of the recipient of the information. In particular, the customer is obliged to keep secret all information, documents and objects obtained by Vanillaplan, subject to the exercise of rights and obligations in accordance with the contract or the law. This applies in particular to offers, invoices and correspondence by letter and e-mail. The customer is obliged to ensure that his organs, employees and third parties involved also comply with these obligations.

19.2. The obligation to maintain confidentiality shall continue to exist after termination of the contractual relationship.

19.3. However, Vanillaplan is entitled to use the Customer's data (if necessary, by commissioning third party companies) in compliance with the data protection provisions for research purposes, analysis, further development, maintenance and troubleshooting, and to disclose the fact of the cooperation with the Customer in the form of references, unless the Customer expressly requests that this fact is also placed under Vanillaplan's obligation of confidentiality.

20. Transfer

Vanillaplan may transfer this Agreement or any part thereof to another company at any time without the consent of the Customer and with full discharge of Vanillaplan.

21. Transfer

21.1. Vanillaplan undertakes to irretrievably delete all data of the customer concerned after termination of the contract. If services have been provided by third party companies, these are also obliged to irretrievably delete all data of the customer concerned.

21.2. If Vanillaplan discontinues a service, it undertakes to inform the customers as soon as possible. Customers will then have the right to immediately dissolve the contract concerning this service. Vanillaplan is also then obliged to irretrievably delete all data of its customers that are connected to the cancelled service.

21.3. It is in the interest of the customers to secure their data at the latest before the termination of the contract so that they can freely dispose of it. After the termination of the contract, Vanillaplan is no longer responsible for the data of the customers concerned.

21.4. Vanillaplan is not obliged to transfer customer data to other providers upon termination of the contract. If this is desired by the customer, a special contract must be concluded.

22. General; Applicable law; Place of jurisdiction

22.1. Additions, amendments or the cancellation of the contract concerning the software as well as the GTC must be made in writing. This also applies in particular to this written form clause.

22.2. Written form within the meaning of these GTC is also deemed to exist in the case of email, provided that receipt has been confirmed by Vanillaplan.

22.3. Should one or more of the provisions of these GTC be or become void or ineffective, the remaining part of the GTC shall not be affected thereby. In the event of the invalidity or ineffectiveness of a clause, it shall be replaced by a clause that comes as close as possible to the economic purpose of the invalid provision.

22.4. These GTC and the contract concerning the software are governed by Swiss substantive law, excluding the conflict of laws rules and international agreements (United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980).

22.5. The parties shall attempt to settle any disputes, differences of opinion or claims arising from or in connection with these GTC and the contract concerning the Software out of court. If the parties do not succeed in doing so, the ordinary courts at the registered office of Vanillaplan shall have exclusive jurisdiction.