1. Applicability and Principles

1.1. Applicability of the general terms and conditions


These General Terms and Conditions (“T&Cs”) are valid for all legal relationships (offers, contract negotiations, contracts) between Smartwatcher Technologies AG with its registered office at St. Johanns-Ring 133, 4056 Basel, Switzerland and its principle place of business at Technopark Zurich, Technoparkstrasse 1, 8005 Zurich, Switzerland (“Smartwatcher”) and customers (“Customers”) regarding (i) the sale and delivery of products (“Products”) and (ii) the supply of services (“Services”) by Smartwatcher to the Customers.

The term Customer shall apply to any person who purchases or uses Products and/or Services.

These T&Cs form an integral part of all existing legal relationships and in particular the contracts between Smartwatcher and the Customer unless explicitly agreed otherwise. Provisions deviating from these T&Cs shall only be legally binding if explicitly offered by Smartwatcher or explicitly accepted in writing by Smartwatcher.

By placing an order to Smartwatcher and/or by using Products and Services, the Customer confirms and accepts that the sale and delivery of the Products as well as the supply of Services shall be governed by these T&Cs. Smartwatcher reserves the right to amend these T&Cs at any time and without prior notice to its Customers. Amendments shall be applicable upon notice to the Customer for all legal relationships between Smartwatcher and the Customer entered into thereafter. Further use of the Products and Services after an amendment shall be deemed an acceptance of the change.

Unless explicitly agreed otherwise by Smartwatcher in writing, general terms and conditions and/or other contractual documents issued or provided by the Customer are explicitly waived and excluded. This rule shall also apply in case the Customer encloses general terms and conditions or other documents to the order or “order confirmation” or discloses such general terms and conditions or other documents otherwise to Smartwatcher.

The following exclusions to the applicability of these T&Cs are expressly reserved:

  • Smartwatcher maintains a special set of “Terms and Conditions for Users of the SmartWatcher application” downloaded by the Customer in the app store, which is published in the SmartWatcher application (“App”).
  • Smartwatcher maintains a special set of “Terms and Conditions for Business Partners, Shops and Distributors”, a document directly shared with relevant business partners.

1.2. Offers, conclusion and transferability of the contract

All offers, price lists, product descriptions, prospects, plans and the like from Smartwatcher are not binding and may be amended or withdrawn at any time, unless explicitly stated otherwise in the respective document.

In case Smartwatcher issues an unbinding offer, the contract between Smartwatcher and the Customer shall only enter into effect as of the date of the confirmation by Smartwatcher. The confirmation may take place in form of a written order confirmation (declaration of acceptance), the signing of a written contract or by execution of the order by Smartwatcher. Orders and “declarations of acceptance” from the Customer are qualified as offer to conclude a contract only.

The order confirmations of Smartwatcher contain a description of the Products and/or Services. In case no order confirmation is issued, the description of the Products and/or Services is evident from the offer of Smartwatcher and/or the signed written contract.

Smartwatcher may at its discretion and upon prior notification of the Customer transfer contracts between Smartwatcher and the Customers to a third party.

Rights or duties arising from the contractual relationship between Smartwatcher and the Customer may not be assigned without Smartwatcher’s written consent.

1.3. Form

Declarations in text form which may be submitted or recorded by electronic media (e-mail, sms etc.) shall qualify as written declarations from a party. The evidence that such a declaration has been received and retrieved by the addressee shall be in the sender’s responsibility. Such declarations are considered as received at the time of their retrieval by the addressee.

1.4. Description of Products, Services, Brochures, Plans etc.

All descriptions, pictures and drawings of Products and Services and information provided in brochures, catalogues, plans and the like are subject to technical modification and improvement. Such descriptions may only depict contractual properties of the Products and Services if explicitly indicated.

1.5. Right to Change, Withdraw or Cancel

Smartwatcher preserves the right to change, withdraw or cancel its Products and Services at any time without prior notice to the Customer. In this case, Smartwatcher shall attempt to suggest a suitable alternative product or service to the Customer, but this cannot be guaranteed. If the Customer does not accept such suggestion, Smartwatcher shall have the right to cancel all or any part of the order and repay the Customer any money that the Customer may have paid to Smartwatcher in respect of the order. For prepaid Services, Smartwatcher may at its discretion decide to either reimburse the remaining part of the prepayment to the Customer or to continue offering the Service until the already prepaid period expires.

 

2. Prices and Payment

The Products and Services ordered must be paid for by credit or debit card. The prices and conditions stated in the Smartwatcher web shop (“Web Shop”) at the time of the placement of the order shall apply. All prices and remuneration are stated as net prices in Swiss Francs including value added tax (“VAT”) at the relevant statutorily applicable rate. VAT and other taxes shall be borne by the Customer. Smartwatcher shall have the right to change the prices from time to time without further notice.

 

3. Delivery

Dispatch is only possible to delivery addresses in countries listed on the Smartwatcher website (“Website”). All Products shall be delivered to the delivery address the Customer has indicated to Smartwatcher. Smartwatcher shall attempt to deliver the ordered Products as soon as possible and without unnecessary delay. Delivery dates which might be specified by Smartwatcher (whether orally or in writing) or on the Website are estimates only and Smartwatcher shall not be under any liability to the Customer in respect of any failure to deliver on a particular date. In general delivery costs are to be paid by the Customer unless expressly stated otherwise by Smartwatcher. For orders over CHF 100.00, delivery is made free of charge. In the event that any Product is returned shipment costs are not reimbursed.

Risk of loss or damage to Products shall pass to the Customer upon Smartwatcher handing over the Products to its nominated carrier for delivery.

 

4. Cancellation Policy

The cancellation policy set out in this provision shall only apply to Customers who reside in an EU Member State (“EU-Customers”). EU-Customers may cancel their order within fifteen (15) days after it was submitted by filling out and submitting an order cancellation form on the Website (“Cancellation Form”) and by returning the ordered Products if these were already sent off to them and/or by compensating any unpaid use of Services. In case of a valid cancelation, both parties must return the received Products and benefits to the other party. The EU-Customer must immediately and at its own expense and risk return the purchased Products in their original packaging, complete and undamaged. Smartwatcher shall have the right to deduct for and/or claim back any damage or deterioration of Products received. The EU-Customer’s obligation to compensate an unpaid use of Services must be fulfilled within thirty (30) days after the Cancellation Form was issued. For Smartwatcher the thirty (30) day payment term shall start on the day both a valid Cancellation Form has been received and all Products related to the order cancellation have been properly returned to Smartwatcher.

 

5. Warranty

5.1. Products

Smartwatcher warrants that at the time of the dispatch the Products are free of substantial defects in material and workmanship that affect the proper use of the Products. Any material warranty which goes beyond this, as well as any legal warranty, is expressly excluded.

The warranty is provided in accordance with the applicable local laws and is only valid if the Customer has ordered the Product in the Web Shop or purchased it from an official dealership in a member state of European Union, Iceland, Norway, Liechtenstein or Switzerland.

The Customer shall immediately inspect the Products after the delivery and notify Smartwatcher of any complaints, in writing, within 10 working days (the postal date stamp shall determine compliance with the time limit). Smartwatcher shall be notified of later detected hidden defects without undue delay but not later than seven days after detection. In case of failure of giving notice or in case the Products are used without inspection the Products are deemed to be accepted by the Customer.

The warranty shall be forfeit if,

  • the serial number of a Product has been removed, altered or made illegible in any way;
  • unauthorised attempts to open up the Product and/or replace the SIM card (some Products have a built-in SIM card which cannot be replaced) have occurred;
  • the Customer cannot present a valid proof of purchase.

After receiving notification of defects by the Customer, Smartwatcher will examine the warranty claim and inform the Customer whether the asserted defect is covered by the warranty or not. The Customer shall be required to provide a valid proof of purchase as well as the original packaging. If the proof of purchase and packaging are not presented or are incomplete or illegible, Smartwatcher has the right to refuse the warranty service. After having completed the Support Form which is available on the Website, the Customer shall be obliged to follow the instructions and guidelines given by Smartwatcher. For the purpose of inspection and/or repair, the Customer shall upon request be obliged to return the product to Smartwatcher at its own cost.

Where the claim under warranty is justified, Smartwatcher or its authorized service network shall, at Smartwatcher’s own discretion, either rectify all defects in the Products or replace the Products or any relevant part thereof, free of charge. Repair or replacement may involve use of a functionally equivalent reconditioned unit or materials. All replaced defective parts shall become the property of Smartwatcher. The right of the Customer to withdraw from the contract, to claim reduction of the purchase price or to carry out any measures itself on behalf of Smartwatcher is explicitly excluded.

In case no warranty claim exists, the Customer shall bear all cost incurred by Smartwatcher.

The warranty is namely subject to the following exclusions:

  • Smartwatcher gives no warranty where the Customer or a third party processes, alters, modifies, repairs or disassembles the affected Products without prior written consent of Smartwatcher;
  • all deficiencies which cannot be proven to have their origin in defective material or poor workmanship, e.g. for deficiencies resulting from normal wear and tear, improper installation, use and/or maintenance, use of wrong voltage, misuse, abuse, negligence or accident howsoever caused, failure to observe the operating and/or security instructions or deficiencies resulting from other reasons beyond Smartwatcher’s control, including but not limited to damage caused by spillage of food or liquids, erosion, corrosion or rust, exposure to or submersion into water and expose to extreme heat or cold are excluded.

The Customer takes note that the Products may warm up during normal use. This, however, does not constitute a malfunction and shall under no circumstances be considered as a basis for a warranty claim.

Unless explicitly agreed otherwise, claims under warranty shall lapse on expiry of two years from delivery of the Products concerned. With respect to Products repaired or replaced by Smartwatcher, the two-year limitation period shall apply as from the delivery of the original Product.

Any cooperation by Smartwatcher for the detection of defects or their remediation occurs without any prejudice regarding the existence or the scope of the warranty.

5.2. Services

The Customer shall have no rights under warranty in respect of any Services and thus Smartwatcher accepts no responsibility for the result of the Services. However, Smartwatcher undertakes to use proper care and skill in performing the Services.

 

6. Limitation and Exclusion of Liability

Liability shall be governed by these T&Cs and the applicable statutory provisions in force. However, Smartwatcher shall in no event be liable for: (i) slight negligence, (ii) indirect or collateral damages or consequential damages or loss of profit, (iii) unrealized savings, (iv) damages due to delayed delivery or Services as well as (v) any acts or omissions of associates of Smartwatcher, regardless if contractual or non-contractual.

Smartwatcher shall not be liable for any non-performance, loss, damage or delay caused by events of force majeure, particularly natural events, ice, snow, fire, strike, war, terrorist attack and official instructions. Furthermore, Smartwatcher shall not be liable for loss resulting from the improper use of the Products and/or Services or using them in breach of contract or unlawfully and use of the Products and/or Services beyond their specifications.

In addition, Smartwatcher shall not be liable for damage caused by the following:

  • incorrect transportation and/or storage;
  • incorrect installation, such as installation without following the installation guidelines and instructions and/or the installation manual or (in absence of manuals/guidelines) without following the rules of diligent installation;
  • neglected maintenance and/or improper modifications or repairs of the Products by the Customer or an unauthorized third party;
  • external influences such as spillage of food or liquids, erosion, corrosion or rust, exposure to or submersion into water, expose to extreme heat or cold;
  • use of incompatible spare parts or ancillary equipment (e.g. power supply);
  • breach of the Customer’s obligations under clause 8 of these T&Cs.

Smartwatcher shall under no circumstances be held liable for and makes no guarantee that the Products and Services are functioning or available in an emergency situation. In particular, it may be that an alarm notification is not received, or the recipients of such notification do not take proper note of an alert or of a potential emergency situation, or are not able to assess the situation properly, or to arrange any help in a timely manner. Failure to receive or react to an alert shall under no circumstances give basis for any liability of Smartwatcher. The use of Smartwatcher Products and Services cannot replace compliance with common sense safety measures.

Smartwatcher shall under no circumstances be held liable for the costs of any rescue operation that is triggered by and/or in connection with the use of the Products and Services.

Insofar as Smartwatcher is liable, such liability shall also be limited to the total purchase price paid by the Customer for the Products and/or Services concerned.

To the extent that the liability of Smartwatcher is excluded, this shall also apply to the personal liability of Smartwatcher’s employees, members of staff, representatives and associates.

 

7. Data Protection

Smartwatcher adheres to the applicable data protection legislation when processing personal data provided by the Customer.

By placing an order and/or using the Products and/or Services the Customers agree and understand that Smartwatcher may store, process and use the personal information provided to Smartwatcher by them to,

  • deliver Products and to perform Services for the Customer;
  • process Customers payment for the Products and Services;
  • inform Customers of features, updates, and marketing promotions.

In addition, Smartwatcher may disclose and transfer personal data to and jointly use personal data with business associates, service providers, and other persons who Smartwatcher considers appropriate, in connection with the Products and Services provided to or requested by the Customers.

If Customers wish to have access to the information Smartwatcher holds concerning them, or if Customers want to make changes or do not want to receive information from Smartwatcher or third party companies, they shall refer to Smartwatchers Customer privacy policy available on the Website.

 

8. Obligations of the Customer

The Customer undertakes to use the Products and Services only for purposes that do not violate these T&Cs or applicable law and do not violate the rights of third parties. The Customer shall be obliged to use the Products and Services only for personal reasons and not to make it available to any unauthorized third parties.

The Customer shall follow any and all instruction, installation and safety instructions issued by Smartwatcher and/or associates of Smartwatcher and/or stated in packaging, brochures and technical manuals regarding the Products and/or the Services. The Customer undertakes to send an emergency alert only in an emergency situation and to ensure that third parties, in particular children, send no unfounded emergency alerts. The use of the Products and Services cannot replace compliance with common sense safety measures and the Customer is obliged to take preventive safety measures accordingly in anticipation of any possible emergency situation.

Insofar as the Customer violates these T&Cs or applicable law, the Customer is obliged to fully indemnify Smartwatcher for any claims arising out of or in connection with such violation, including but not limited to attorney’s fees and court costs.

 

9. Further Provisions

9.1  Intellectual property and retention of title

Smartwatcher and possible licenser remain holder of all rights to the Products and the Services, descriptions, brochures, catalogues, plans, documents and media, including but not limited to patent rights, copyrights, trademarks and other intellectual property rights. The Customer acknowledges these rights of Smartwatcher and/or the licenser.

Smartwatcher confirms that to its best knowledge all descriptions of Products and Services, brochures, catalogues, plans, documents and media handed out to the Customer do not infringe any third party rights. However, Smartwatcher does not give any guarantee that the descriptions of Products and Services, brochures, catalogues, plans, documents and media handed out to the Customer do not infringe any third party rights.

The Products shall remain the property of Smartwatcher until the Customer has properly fulfilled payment obligations and Smartwatcher has received full payment as set forth in the contract. The Customer shall assist in all necessary measures to protect the property of Smartwatcher. The Customer authorises Smartwatcher to enter its ownership rights in the corresponding register of proprietary rights insofar as Smartwatcher wishes to do so.

9.2  Severability

If any part or provision of these T&Cs be held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of these T&Cs shall nonetheless remain valid. In this case, the Parties shall endeavour to negotiate a substitute provision that best reflects the economic intentions of the Parties without being unenforceable. The same applies to gaps in these T&Cs.

9.3  Governing Law and Jurisdiction

All legal relationships between Customers and Smartwatcher shall be governed by substantive Swiss law to the exclusion of the Vienna Convention on the International Sale of Goods dated 11 April 1980.

The exclusive place of jurisdiction for all disputes shall be the competent courts at the principle place of business (currently Zurich) of Smartwatcher.