- The placing of an order by you (the client) and the acceptance of that order by VOXILION (or vice versa) for 3D Scanning, 3D Printing, and 3D Services (including consultancy, education, and 3D rendering services) creates a contract on VOXILION terms and conditions as set out below (Art. 1 Swiss Code of obligations, CO).
- These terms apply in addition to the main contract. Terms and conditions of the client or any third party are excluded.
- An order shall be deemed to be accepted when your confirmation is received by VOXILION in writing in our VOXILION mailbox (letter, Email, fax). In the absence of a written confirmation VOXILION is not obliged to start the execution of the Services under the contract and will not accept liability for any error in executing the contract.
- In exceptional circumstances and entirely at its own discretion VOXILION may accept an order given verbally by an existing or former client who has had notice of these terms and conditions; these terms and conditions shall apply equally to an order given and accepted. In the exceptional case of VOXILION accepting an order verbally, the client shall confirm such an order in writing without delay. In the absence of a written confirmation VOXILION will not accept liability for any error in executing the order.
- Any “Quotation” given by VOXILION shall not constitute an offer by itself, and is only valid for acceptance for a period of 10 Business Days from its date of issue. A “Quotation” constitutes an offer only when it is titled “Offer”.
- VOXILION reserves the absolute right to refuse any order whatsoever and for whatever reason. Particularly in cases where VOXILION has reason to believe that acceptance and execution of the order will lead to a breach and/or infringement by VOXILION of the laws of obscenity, libel and intellectual property rights.
FEES AND PAYMENTS
- The fee payable by you for the execution of any order shall be as set out on the Contract, Quotation, Offer, Work Order or as otherwise agreed in writing with you.
- VOXILION shall be entitled to charge you for any expenses reasonably incurred by the individuals whom VOXILION engages in connection with its services including, but not limited to, travelling and transportation expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by VOXILION for the performance of its services and for the cost of any materials.
- VOXILION reserves the right to make additional charges at its own discretion when completion of an order is subsequently to the closing of the contract requested/required by the client in less than the agreed delivery time for the type of work ordered or when you (the client) agrees to subsequent changes of the original Contract/Quotation/Offer/Work Order.
- All payments for stock models have to be done in advance – otherwise download of stock models is not possible.
- All payments for custom 3D scanned single models (or small series that are not an extensive project) have to be done in advance – otherwise work results are retained by VOXILION and VOXILION owns the unlimited right of disposal and intellectual property rights of the work results.
All payments for more extensive 3D Scanning projects, 3D Printing projects, and 3D Services (including – but not limited to – consultancy and 3D rendering services) have to be made according to the Contract, Quotation, Offer, Work Order or as otherwise agreed in writing. If there is no specific agreement in den Contract concerning the payments for 3D Services the following shall apply:
- 30 % of the service fee is due 14 calendar days (Due Date) after completion of the service contract (due means received by VOXILION on its Bank account (conf. paragraph 18);
- 50 % of the service fee is due 14 calendar days (Due Date) after two thirds of the work results under the service contract are demonstrably produced by VOXILION (due means received by VOXILION on its Bank account (conf. paragraph 18);
- 20 % of the service fee is due after the client received the work results from VOXILON and according to paragraph 13 hereinafter.
- You shall pay each invoice submitted by VOXILION:
- within 30 calendar days of the date of the invoice due date and payment received by VOXILION on its Bank Accout (due means received by VOXILION on its Bank account); and
- in full and in cleared funds to the bank account nominated in writing by VOXILION, and time for payment shall be of the essence (“Due Date”, Art. ) of these terms and conditions.
- All amounts payable by the client under these terms and conditions are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”, “MwSt”). Where any taxable supply for VAT (MwSt.) purposes is made under these terms and conditions by VOXILION to you, you shall, on receipt of a valid VAT (MwSt.) invoice from VOXILION, hold and pay to VOXILION such additional amounts in respect of VAT (MwSt.) as are chargeable on the supply of our services at the same time as payment is due for the supply of the services.
- Without limiting any other right or remedy of VOXILION, if you fail to make any payment due to VOXILION by the due date for payment (“Due Date”), VOXILION shall have the right to charge interest on the overdue amount at the rate of 5 % per annum on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding monthly.
- You, the client, shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against VOXILION in order to justify withholding payment of any such amount in whole or in part. VOXILION may, without limiting its other rights or remedies, set off any amount owing to it by you against any amount payable by VOXILION to you.
METHODS OF PAYMENT:
- Payments may be made by bank transfer (BACS) using the following details:
Bank: St. Galler Kantonalbank AG
Bank address: St. Leonhard-Strasse 25, 9001 St. Gallen
Bank BIC/Swift: KBSGCH22
Bank Clearing Nr.: 781
Account number: 90-219-8
IBAN: CH33 0078 1620 1069 2200 0
In favor of: VOXILION GmbH, Gottfried-Kellerstr. 9, 9000 St. Gallen, Switzerland
- VOXILION does not accept cheques.
- All estimate / quotation prices are in Swiss Francs (CHF) unless otherwise agreed. Goods and services supplied from other countries will be calculated at the prevailing current rate of the Swiss Franc (CHF) or other currency at the time of the conclusion of the contract. VOXILION reserve the right to pass on to you exchange rate fluctuations in excess of 1.5 % of the rate shown at the date payment is made or received.
- Where payment is made in a currency other than Swiss Francs (CHF), you will be responsible for paying any bank charges associated with the conversion of your payment into Swiss Francs (CHF).
DESIGN, PRINT & PRODUCTION LIABILITY:
- VOXILION will take all reasonable care in the handling and processing of all materials belonging to you.
- Subject to paragraphs 24 & 25 below, the liability of VOXILION for loss or damage to your materials, shall be limited to such loss or damage which, at the time the order was placed, could reasonably have been foreseen as likely to arise directly as a result of the loss or damage to the materials and is limited to the material or object value only.
- Where original materials are deposited with VOXILION it shall be your responsibility to inform VOXILION of the value of such material either before or when they are placed on deposit. If you fail to inform VOXILION, the liability of VOXILION for the loss of or damage to any such material shall not exceed Swiss Francs (CHF) 150.- per item.
- Where original materials are submitted to VOXILION in the form of memory sticks, compact discs, external hard drives, or any other electronic or digital erasable media it shall be the responsibility of you to maintain their own master copy independently of the material submitted to VOXILION. On computer disk or other electronic or digital erasable media of which you do not have another copy, you shall inform VOXILION of that fact either before or when the material/s is/are submitted to VOXILION. If you fail to inform VOXILION, VOXILION’s liability for loss of or damage to any such material shall not exceed Swiss Francs (CHF) 50.- per item.
INTELLECTUAL PROPERTY RIGHTS:
- It shall be your responsibility to ensure that all materials presented for processing, printing, copying, duplication, restoration or any other process of reproduction are free from any third party intellectual property claims.
- If you are not the owner of the intellectual property right you warrant to VOXILION that you have otherwise obtained from the relevant rights owner a written and valid assignment of, all existing and future intellectual property rights in relation to any of the materials you supply to VOXILION.
- You agree to indemnify and hold VOXILION harmless against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by VOXILION arising out of or in connection with the use by VOXILION of materials provided by you for the purposes of this order.
- All intellectual property rights in or arising out of or in connection with any works created, adapted or revised by VOXILION shall be owned by VOXILION unless otherwise agreed in writing.
- You are prohibited from reproducing, modifying, varying, and publishing any works created by VOXILION unless otherwise agreed in writing.
- All materials on which original works are created by VOXILION shall remain the property of VOXILION and VOXILION undertakes to file and store all such original materials safely and to make them available for future reproduction within a 3 month period from completion of the project. After such date, VOXILION cannot guarantee the retention of the materials. Where VOXILION gives possession of original materials to you such material shall nevertheless remain the property of VOXILION and you acknowledges that ownership of any physical materials (such as models, prints, transparencies or digital files/disks) does not imply ownership of the intellectual property rights in them which remains the property of VOXILION.
- You retain all the Intellectual Property Rights in any materials you supply to VOXILION.
- You acknowledge that the infringement of certain intellectual property rights can be both a civil wrong and a criminal offence.
- You shall ensure that artwork sketches and specific instructions supplied by you or your agents are accurate, complete, unambiguous and clearly legible.
PROOFS & ADDITIONAL WORK:
- Proofs may be submitted for your approval. VOXILION shall not be liable for any errors that have not been corrected by you. Where you make alterations, other than alterations arising from mistakes on the part of VOXILION, this may give rise to an extra charge. Additional work caused by omissions or ambiguity in your copy or instructions may also incur an additional charge. In either such case any additional charge shall be made, such reasonable amount as reflects the additional work which VOXILION has had to undertake.
- The completed materials produced by VOXILION shall correspond with the description referred to on the quote, invoice and/or work order, and with any approved sample, illustration, descriptive material or artwork save where such sample, illustration, descriptive material or artwork has been made available by VOXILION for illustrated purposes only.
- Notice of cancellation or curtailment must be given in writing and is effective from the time of reception by VOXILION, during normal office hours 09:00-17:30 Monday to Friday, not including national (Swiss) and cantonal public holidays.
- Any cancellation within a 5 working day period before the commencement of an agreed job will incur a cancellation fee of 10 % of the total invoice. Any cancellation within a 2 working day period before the commencement of an agreed job will incur a cancellation fee of 50 % of the total invoice.
- Where the order is cancelled one day before completion, VOXILION reserves the right to charge for work carried out (conf. 39.) plus a percentage of the total amount. When the order is cancelled after completion of the project, VOXILION reserves the right to charge the entire work (100 %).
- Dispatch of completed material will normally be by either internet upload or First Class registered mail, delivery by VOXILION own delivery service or any other carrier chosen by VOXILION or you. Where and when applicable VOXILION will charge for postage, package and delivery. The carrier shall be deemed to be the agent of you (the client) and VOXILION shall not be liable for any loss or damage occurring while the completed materials are in transit or held digitally by another agent.
- You shall inspect the completed materials on delivery and shall within five working days of delivery notify VOXILION of any alleged defect, shortfall in quantity, damage or failure to comply with description or sample. If you so notify VOXILION shall return the completed materials together with all associated paperwork and packaging to VOXILION within seven working days of said notification. If you shall fail to notify VOXILION the completed materials shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the completed materials and you shall be deemed to have accepted the completed materials.
- It is your responsibility to check that the completed materials comply with your requirements. While reasonable care is taken in carrying out the work under these terms and conditions, VOXILION does not in any way warrant the accuracy or completeness of work, or the fitness of the work for the purposes that the client intends to use it, and accepts no liability for any inaccuracies in or the incompleteness of any such information.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence (unless otherwise agreed between the parties). VOXILION shall not be liable for any delay in delivery of a work or materials that is caused by a force Majeure Event or your failure to provide VOXILION with adequate delivery instructions or any other instructions that are relevant to the supply of a work or materials.
- If you fail to take or accept delivery of any works/materials within 3 Business Days of VOXILION notifying you that the works/materials are ready, then, except where such failure or delay is caused by a force majeure event or VOXILION’s failure to comply with its obligations under these terms and conditions:
45.1 delivery of the works/materials shall be deemed to have been completed at 9.00 am on the 3rd Business Day after the day on which VOXILION notified you that the works/materials were ready; and
45.2 VOXILION shall store the works/materials in their possession until delivery takes place, and charge you for all related costs and expenses (including insurance).
- If 10 Business Days after the day on which VOXILION notified you that the works/materials were ready for delivery you have not taken or accepted delivery of them, VOXILION may resell or otherwise dispose of part or all of the works/materials.
- Without limiting its other rights or remedies, VOXILION may terminate the contract and these terms and conditions any time (according to Art. 404 CO) by giving written notice to you and especially if:
48.1 you commit a material breach of these terms and conditions and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;
48.2 you suspend, or threaten to suspend, payment of its debts or are unable to pay your debts as they fall due or admit an inability to pay its debts or (being a company) is deemed unable to pay its debts (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, or (being a partnership) has any partner to whom any of the foregoing apply; or
48.3 you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business.
- Without limiting its other rights or remedies, VOXILION may terminate these terms and conditions with immediate effect by giving written notice to you if you fail to pay any amount due under these terms and conditions or the order form on the date payment falls due.
- Other than as set out above and without limiting its other rights or remedies, each party shall have the right to terminate these terms and conditions by giving the other party 14 days written notice.
- Without limiting its other rights or remedies, VOXILION shall have the right to suspend provision of its services if you become subject to any of the events listed in the clauses above or if VOXILION reasonably believes that you are about to become subject to any of them, or if you fail to pay any amount due under these terms and conditions.
- On termination of the Contract for any reason:
52.1 the client shall immediately pay to VOXILION all of VOXILION’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, VOXILION shall submit an invoice, which shall be payable by the Customer immediately without any delay (in exemption of paragraph 13);
52.2 VOXILION shall return all of the original materials provided by the Customer to VOXILION;
52.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
52.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- VOXILION shall not be liable to you as a result of any delay or failure to perform its obligations under these terms and conditions as a result of a force majeure event.
- VOXILION shall not be liable to the other party for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation (whether for loss of profit, business, goodwill reputation or otherwise and whether caused by negligence or otherwise) which arises out of or in connection with this agreement.
- If the force majeure event prevents VOXILION from providing any of its services for more than 4 weeks, VOXILION shall, without limiting its other rights or remedies, have the right to terminate these terms and conditions immediately by giving written notice to you.
- VOXILION may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under these terms and conditions to any third party or agent.
- You shall not, without the prior written consent of VOXILION, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.
- A person who is not a party to these terms and conditions shall not have any rights under or in connection with it.
- Except as set out in these terms and conditions, any variation, including the introduction of any additional terms and conditions, to these terms and conditions, shall only be binding when agreed in writing between the parties.
- These terms and conditions, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Switzerland. The United Nations Convention dated 11th April 1980 on Contracts for the Sale of International Goods (CISG “Vienna Purchasing Convention”) and the international private laws of the parties are excluded. The parties irrevocably submit to the exclusive jurisdiction of the courts of the city of St. Gallen, Switzerland.
LIEN & RETENTION OF TITLE:
- VOXILION shall have a right to retain all of your materials in its possession and shall reserve the right to retain any such materials until all monies due and payable have been received.
- In the event of non-payment in accordance with these terms and conditions for any works/materials created by VOXILION any licence that has been granted to you to use or reproduce the works/materials or images thereof shall be immediately revoked without further notice from VOXILION thereby rendering any reproduction of the image(s) by you a breach of copyright and/or other intellectual property rights for which VOXILION reserves the right to take such legal action as may be appropriate.
- “We”, “us”, “our” or “VOXILION” means VOXILION GmbH, Gottfried-Kellerstr. 9, 9000 St. Gallen, Switzerland; and
- “You” means you, the client, the company and/or the organisation who this Agreement is made with and includes any person/s that we reasonably believe are acting with you, the client, the company and/or the organisations authority.
- “Agreement” means this agreement including all subsequent amendments.
- “Business Days” means a day (other than a Saturday, Sunday and public holiday) on which banks in Switzerland (City of St. Gallen) are open for business (other than for the sole purpose of 24-hour electronic banking).
- “Information” means any confidential and/or personally identifiable information or other information related to you, including but not limited to the following: name, email address, post/shipping address and phone number.
- “Materials” means any 2D or 3D models, 2D or 3D prints, 2D or 3D photos or movies, transparencies or digital files/disks or physical materials.
9000 St. Gallen
Valid as of: August 12, 2015