General terms & conditions (agB)

 

1 General information

These general terms and conditions apply to all deliveries and services provided by Sphery AG. These General Terms and Conditions shall only apply if the customer is an entrepreneur, a legal entity under public law or a special fund under public law within the meaning of §§ 310 Paragraph 1. The content of these General Terms and Conditions shall apply unless deviating agreements are expressly acknowledged by Sphery AG in writing. These GTC take precedence over contradictory conditions of the other contracting party. The GTC in their respective version shall also apply to future business transactions with the customer, without the Seller having to refer to them separately in each individual case. In addition to the delivery of goods, this also includes consulting and other services as well as individual or partial orders within the framework of the business relationship.

2 Conclusion of Contract

All offers (quotations) are subject to change without notice. Unless otherwise agreed, unlimited offers expire 40 days after the date of delivery. Without an individual offer (offer), the current price list of the respective country shall apply.  Each offer can be revoked until receipt of the order. The contract is concluded with the receipt of written confirmation from Sphery AG that the order has been accepted or with dispatch. Signatures of the customer or his employees are also legally binding if they are electronically recorded and stored by Sphery AG with the help of computer pads or in any other way.

Sphery AG shall be entitled to withdraw from the contract without compensation if the performance becomes impossible for us or our suppliers or can no longer be reasonably expected as a result of a change in circumstances. The customer must draw our attention to the legal, official and other regulations which must be observed when fulfilling the contract. With an order, these General Terms and Conditions are expressly acknowledged.

3 Prices

Unless otherwise agreed, the prices valid at the time of receipt of the order shall apply. Unless otherwise agreed, Sphery AG’s prices are exclusively prices for goods. The prices do not include installation, freight, transfer, insurance costs and/or customs duties as well as any statutory value-added tax and packaging costs. Installation, freight, transfer and insurance costs as well as value-added tax and packaging costs shall be shown separately in the order confirmation and invoice, if any. We also reserve the right to adjust prices if wage rates or material prices change between the time of the offer and the contractual delivery. In the event of a price adjustment of more than 10% of the original price, the customer shall be entitled to object to the price increase within two weeks of the date of dispatch of the letter of notification and to withdraw from the contract. If there is no objection within the period, the increased price shall be deemed to have been agreed.

4 Delivery period

The stated delivery period is approximate and therefore non-binding. It begins at the earliest after all necessary technical questions have been clarified and agreed down payments have been received. Delivery periods shall be extended by the period in which the customer does not meet his payment and cooperation obligations under the contract (e.g. down payment, provision of documents) in good time, unless Sphery AG is responsible for the delay. This shall also apply in the event that the customer is in arrears with the fulfilment of his obligations from other contracts within the current business relationship with Sphery AG to a not inconsiderable extent. The delivery period can also be extended appropriately in the event of unforeseeable obstacles. Unforeseeable obstacles include, in particular, delayed or defective delivery by subcontractors, transport obstacles, rejects of important parts, operational disruptions, serious accidents, epidemics, strikes, official measures, war, riots, lack of electricity and staff, etc. Late delivery does not entitle the customer to compensation for direct or indirect damage or to withdraw from the contract.

5 Terms of payment

Payments are subject to the terms and conditions set out in the Offer or Order & License Agreement. Partial deliveries are to be paid as independent transactions. In the event of late payment, there is automatically a claim to default interest, the amount of which is based on the Swiss Code of Obligations (OR) at the time of maturity. Sphery AG is entitled to assert its additional expenses against the ordering party in the event of default in payment. It is inadmissible to reduce or withhold payments due to complaints, claims or counterclaims not recognised by us. Payment shall also be made if insignificant parts are missing, but this does not make it impossible to use the delivery, or if reworking of the delivery proves necessary. Default in payment entitles us to cancel the order and to demand the return of goods already delivered. We reserve the right to claim damages.

If the customer is in default of payment, Sphery AG shall be entitled, irrespective of the assertion of further damages, to demand default interest at a rate of 5 percentage points p.a. above the respective base interest rate of the Swiss National Bank. If Sphery AG can prove a higher damage caused by default, we are entitled to assert this. The customer is entitled to prove to Sphery AG that it has incurred no or less damage as a result of the default in payment.

6 Technical Documents

Technical documents, such as drawings, descriptions, illustrations and the like, as well as any weight information, shall only be binding if this has been expressly agreed. We reserve the right to make such modifications as we deem necessary. Technical documents are our intellectual property. Without our written consent, the technical documents may not be used for self-production, for our own or third party use, nor may they be brought to the knowledge of or made available to third parties. If an order is not placed with us, plans, drawings and other documents submitted must be returned to us immediately and without being requested to do so.

7 Warranty (Guarantee) and Liability

Unless otherwise agreed or subject to the warranty of the equipment manufacturer, the warranty period shall commence on the date of commissioning at the end user and shall last 12 months. Mandatory legal regulations (e.g. those applicable to consumers) take precedence over this regulation. All warranty claims shall expire no later than 24 months after delivery. If a delivery proves not to be in accordance with the contract, the ordering party must immediately give Sphery AG the opportunity to remedy the defects. Sphery AG undertakes to repair or replace as quickly as possible, at our option, those parts which become demonstrably defective or unusable during the warranty period due to construction faults, poor materials or manufacturing faults. Liability for defects shall lapse completely if a) the customer does not meet his payment obligations, b) the equipment has been improperly handled by the customer or third parties or is used under conditions for which it is not suitable, c) damage has occurred due to force majeure, natural wear and tear or other influences such as corrosion, overheating, inadequate maintenance, d) the customer or user has not granted us reasonable time for repair or replacement, e) the customer or third party makes changes and repairs without our approval, f) faults and defects are not reported to us immediately in writing. We shall only bear the costs incurred by repair or replacement of the defective parts in our workshop. Installation, removal and transport costs are excluded. If the defective parts cannot be repaired or replaced in our workshop for reasons for which we are not responsible, all resulting additional costs shall be borne by the customer. In the case of repair work at the place of destination, the customer shall provide the necessary auxiliary personnel and the necessary equipment free of charge. Replaced parts become the property of Sphery AG. Any claims of the ordering party which go beyond the above warranty obligations, such as compensation for loss of operation suffered, loss of profit or for accidents or consequential damage caused by accidents, as well as all other direct or indirect damage, are expressly excluded. Cancellation and reduction are expressly excluded.

8 Transport, insurance and packaging

Unless otherwise agreed, the goods shall travel at the expense and risk of the customer. Transport insurance shall only be taken out by us at the express and timely request of the customer and for the customer’s account. Any complaints in connection with the transport must be addressed by the customer to the last carrier immediately upon receipt of the delivery or the freight documents. Unless otherwise agreed, Sphery AG shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) itself. The seller is entitled to make partial deliveries to a reasonable extent, unless the customer has excluded this in his order.

9 Acceptance of delivery

The ordering party must inspect the delivery within a reasonable period and immediately notify us in writing of any defects for which Sphery AG is responsible on the basis of the contractual obligations. If he fails to do so, the delivery shall be deemed approved.

In the event that the customer is in default of acceptance or violates other obligations to cooperate, Sphery AG shall be entitled to demand compensation for the damage incurred, including any additional expenses. In the event of refusal of acceptance by the customer or unauthorised withdrawal from the contract by the customer, Sphery AG is entitled to claim up to 20% of the invoice amount as lump-sum damages after threat of rejection and unsuccessful expiry of a reasonable grace period, without the need for proof by the seller. The right of Sphery AG,

to claim higher damages shall remain unaffected; the above lump sum shall be set off against further damages. The customer shall be permitted to prove that Sphery AG has not suffered any damage or that the damage is substantially lower.

10 Assembly and Commissioning

For assembly work, Sphery AG or its partner companies are to be used exclusively. The commissioning of the objects or systems supplied by Sphery AG shall be carried out in accordance with special agreements.

11 Retention of title

The material supplied by us shall remain our property until full payment of the deliveries has been made. The customer is obliged to cooperate in any measures necessary to protect our property.

12 Applicability

The rights and claims of the customer are conclusively regulated in these General Terms and Conditions. All further rights and claims are excluded. The German version is legally valid.

13 Place of Performance, Jurisdiction and Applicable Law

Place of performance is CH-9434 Au SG. Place of jurisdiction is CH-8032 Zurich. ES applies exclusively to Swiss substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

END USER LICENCE AGREEMENT

1. General. 1.1. This agreement is a contract between you and Sphery Ltd, governing your use of our Sphery game network and Sphery games. 1.2. For the purpose of this agreement, the term Sphery game network includes the software of each and every videogame itself, all of its components (e.g., the source code) and content (e.g., graphical or musical content). 1.3. This agreement applies to every game of the Sphery game network and all of its future updates and expansions, unless the expansion is governed by a separate agreement. If an expansion to the Sphery game network is governed by a separate agreement, you will be explicitly asked to agree to the separate agreement. 1.4. If you are a minor (below the legal age of majority in your country), please have the agreement reviewed and agreed to by your parent or legal guardian. 2. Application of a distributor’s terms and conditions. 2.1. We generally use the services of a distributor or reseller to market our Sphery game network. The distributor / reseller usually has its own terms and conditions governing your use of its services and the distribution of software via its services to you. If there is anything in the distributor’s /reseller’s terms and conditions that overlaps with the legal matters regulated in this agreement, the distributor’s terms and conditions take precedence unless they provide that this agreement between you and Sphery applies preferentially. 3. Health and safety warning. 3.1. Due to its mixed-reality nature, Sphery games can be physically challenging. Please consider your state of health before you start playing. If you have any doubts, consult a physician. Take breaks regularly and stay hydrated. 3.2. Please be careful and mindful of your environment when playing games of the Sphery game network . Always make sure there is enough space for you to play safely and that there are no obstacles or dangerous objects around you. 3.3. If you are a minor (below the legal age of majority in your country), please have the health and safety concerns checked by your parent or another responsible adult person before you start to play Sphery games. 3.4. Please note that you bear responsibility for your actions while you play the Sphery game. We don’t take responsibility for any injury or damage caused by your actions while playing the Sphery game. 4. License terms and ownership. 4.1. We give you the right to use Sphery games and the game network (a license) to the extent of downloading it, installing it, and playing it for your personal non-commercial enjoyment. 4.2. You may not do the following with Sphery games: 4.2.1. use Sphery games for commercial purpose (including e-sport and similar events) without our prior consent or unless specifically permitted in this Agreement; 4.2.2. grant a sublicense to another person; 4.2.3. copy the Sphery games, apart from creating copies necessary to run the Sphery games on your gaming device; 4.2.4. sell, rent, lease or otherwise distribute Sphery games; 4.2.5. edit, merge, distribute, translate, reverse engineer, decompile, disassemble Sphery games unless specifically permitted in this Agreement, by our prior consent, or by the mandatory rules of the applicable law; 4.2.6. cheat, wilfully exploit bugs or glitches, wilfully harass or grief other players, or utilize any software or other means to do any of the aforementioned activities in Sphery games; 4.2.7. bypass or remove any measure preventing misuse of Sphery games; 4.2.8. misuse Sphery games in any way contrary to the applicable law, including good morals rules. 4.3. We retain all ownership rights to all Sphery games and the Sphery game network. No proprietary right is assigned to you via this agreement. 4.4. We reserve the right to provide or unilaterally deploy patches, updates and other modifications to Sphery games in order to remove or correct a bug, glitch or other issue, to prevent misuse of the game or breach of this agreement, or to enhance the gameplay (e.g., provide you with additional content). 4.5. Be considerate and polite while using any online feature of the Sphery games, especially when communicating with other players. Don’t choose a rude or offensive user-name or any user-name infringing rights of others, especially personal rights. If you do this, we reserve the right to take the appropriate measures, e.g., change your user-name, block your access to the online feature of the Sphery game and the Sphery game network, or suspend or block your access to the Sphery game and the Sphery game network. 5. Liability. 5.1. We grant you all the rights under this agreement to the Sphery games “as is” and “as available”. That means that we do not grant you any guarantee that Sphery games work without any bugs, glitches, or other issues. In as much as the applicable law permits, we don’t take any responsibility or liability for the Sphery games having any bugs, glitches, or other issues. 5.2. We warrant to you that we have the right to conclude this agreement with you and that we have the right to grant you the rights under this agreement (namely the license to use Sphery games). 6. Termination. 6.1. If you materially breach this agreement, we have the right to terminate the agreement without any notice period. If it comes to this, you will lose all the rights granted by this agreement, namely the right to use Sphery games and the Sphery game network, whereas we shall have no further obligations to you stemming from this agreement. 7. Governing law and dispute resolution. 7.1. This agreement, your use of the Sphery game network and Sphery games and all claims based on, arising from or related to this agreement or its execution, including rights and obligations regarding compensation of damages caused by a breach of this agreement or rights and obligations regarding any unjust enrichment incurred in relation to this agreement, shall be governed by and enforced in accordance with the law of Switzerland (excluding conflict-of-law rules), including its statutes of limitations. 7.2. Any dispute pertaining to this agreement shall be judged and resolved exclusively by the courts of Switzerland. 8. Changes and amendments. 8.1. We reserve the right to make changes to this agreement. In such case, we will post the changes and amended text of the agreement online and take reasonable steps to draw your attention to it. 8.2. The changes shall come into effect (become legally binding) 30 days after we post the amended agreement online, unless a longer period is stipulated in the amendment. If you don’t agree to the changes, you can terminate this agreement by simply ceasing to use Sphery games (including deleting any copy installed on your gaming device). If you continue to use Sphery games after the changes have come into effect, it shall be construed that you agree to the amended agreement in its entirety. 9. Other legal matters. 9.1. You may not assign this agreement or any of the rights granted in the agreement to another person. 9.2. In as much as the applicable law permits, the provisions of this agreement shall be interpreted to the fullest extent expressed in this agreement. If any of the provisions of this agreement is deemed to be void, inapplicable, or unenforceable, the remaining provisions shall not be affected. 10. Contact. 10.1. If you have any questions, comments or feedback, you can contact us at info@sphery.ch

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