These General Terms and Conditions ("GTC") govern all legal relationships between SparkDynamic GmbH, Neuhofstrasse 17, CH-8630 Rüti ("SparkDynamic") and third parties, in particular customers, to which contractual law may apply and for which the GTC contain provisions. Consent to these GTC is given either expressly by reference or tacitly, e.g. by submitting an offer to SparkDynamic. Terms and conditions that deviate from these GTC are not recognised unless they have been expressly agreed in legible form. Individual, expressly made agreements between the parties take precedence over the regulations according to these GTC.
SparkDynamic's offers on its website, in price lists and advertisements are subject to change and non-binding. Customer orders are considered offers and are only binding for SparkDynamic GmbH after confirmation or after delivery of the ordered product without prior confirmation. If a buyer exceeds his credit limit by placing an order, SparkDynamic shall be released from delivery obligations even if it has confirmed an order. The customer is free to increase the credit limit by making sufficient advance payments.
The prices and terms of payment agreed between the customer and SparkDynamic shall apply. In the absence of any other express reference, prepayment shall apply for the first five orders of new customers. For subsequent orders of the customers, 10 days net apply.
The agreed currencies and the payment accounts designated by SparkDynamic are binding. If a customer makes a payment to an account other than the one designated by SparkDynamic and SparkDynamic incurs costs as a result, e.g. due to a currency exchange at the bank, the customer must pay for these costs.
In the case of permanent contracts with a term of more than one year, SparkDynamic may unilaterally adjust the prices for each new contract year if the purchase price has increased by more than 1% due to currency fluctuations or due to price increases by suppliers since the conclusion of the contract. The permitted price increase corresponds to the fluctuation of the purchase price in %. The customer shall not be entitled to price reductions.
Delivery dates and deadlines are subject to timely and defect-free delivery to SparkDynamic by third party suppliers and manufacturers.
The delivery of physical items (e.g. data carriers) shall be at the expense and risk of the customer.
If a debtor of SparkDynamic is in default of payment, SparkDynamic is entitled, even without a reminder, to charge the customer 7% interest on arrears from the day following the due date. As long as payment of the full amount owed plus interest on arrears is outstanding, SparkDynamic may suspend its own provision of services as well as withdraw from the relevant contract and optionally also from other contracts with this customer and demand either a flat rate of 25% of the agreed purchase price or compensation from the customer for the actual damage incurred. In this case, the customer must return any products already purchased and/or discontinue their use from the time of termination.
If a customer refuses to accept the products to be delivered or declares that he does not wish to accept them after the expiry of a grace period set for him, SparkDynamic may continue to demand performance of the contract or withdraw from the contract and claim damages for non-performance. SparkDynamic is entitled to demand either a flat rate of 25% of the agreed purchase price or compensation for the actual damage incurred from the customer as compensation for damages.
SparkDynamic acts as a buyer and reseller of products in the vast majority of business cases. In these cases, SparkDynamic refers its buyers and their resellers to the warranty and liability conditions of its own suppliers or manufacturers. If and to the extent that these terms and conditions grant SparkDynamic's customers or their customers direct claims against suppliers or manufacturers, the customers shall exclusively make claims against these third party suppliers or manufacturers, to the exclusion of SparkDynamic.
To the extent that SparkDynamic is entitled to warranty and liability claims against third party suppliers or manufacturers, SparkDynamic shall be free at any time to assign these claims to customers who have asserted claims against SparkDynamic. In this case SparkDynamic shall be fully released from other and further warranty and liability claims of the customers.
SparkDynamic itself does not assume any warranty for specific properties of the delivered products or for their suitability for a specific use.
Any liability of SparkDynamic arising from material warranty or otherwise from contract as well as from vicarious liability or any other basis is excluded to the maximum extent permitted by law. However, this exclusion does not apply to damage caused by SparkDynamic through gross negligence or intent.
Where SparkDynamic's liability remains, it is limited to direct and immediate damage. The maximum amount of liability is limited to the fee paid for the affected product copies.
Customers are primarily liable to SparkDynamic for the payment of the agreed fees and, if applicable, for interest on arrears and damages from non-performance.
If SparkDynamic should suffer direct or indirect damage as a result of a customer's actions - in particular also as a result of a breach of the manufacturer's licence terms - the customer shall be fully liable to SparkDynamic for such damage.
The export or re-export of products or software may be subject to international export control and sanctions regulations. In particular, Swiss, European and US export regulations must be taken into account. The customer undertakes to independently inquire about the relevant regulations and to comply with them. If SparkDynamic is prosecuted in this context for actions or omissions that lie within the area of responsibility of a customer, the customer shall be fully liable to SparkDynamic for all resulting damages, costs and inconveniences.
SparkDynamic may use subcontractors or sub-suppliers for the performance of all or individual obligations under contracts with customers (including these GTC) at any time without further consent of the customers and may transfer rights and obligations under contractual relationships to third parties (including affiliated companies).
If a court or competent administrative authority finds any provision of these GTC or any other agreement with SparkDynamic to be void or unenforceable, such voidness or unenforceability shall not affect the other provisions of the agreement, which shall remain in full force and effect.
SparkDynamic reserves the right to amend these GTC at any time. The version of these GTC in force at the time of a legal act shall be authoritative.
These GTC and the entire legal and contractual relationship between SparkDynamic and customers are subject to Swiss substantive law. Subject to mandatory statutory provisions, disputes arising in connection with these GTC shall be subject to the exclusive jurisdiction of the court at the registered office of SparkDynamic.
These General Terms and Conditions of SparkDynamic GmbH shall enter into force on 1 August 2022.