Service Description for the Webhosting / HomepageTool Tool

Transcription

1 Service Description for the Webhosting / HomepageTool Tool 1 Area of application The «Webhosting/Homepagetool Service Description» («Service Description») of Swisscom (Switzerland) AG («Swisscom») applies in the area of webhosting, in addition to the Terms and Conditions of Business for Swisscom services («AGB»). In the event of inconsistencies, this Service Description takes precedence over the terms and conditions of business. The subject of this Service Description is Swisscom s webhosting and homepagetool services ( «Services»). Additional components of this Service Description are the following documents: Web Hosting Code of Conduct Web Hosting Spam Policy Code of Conduct Hosting ("CCH") of the Swiss Internet Industry Association ("simsa") Service description for the registration and management of domain names by Swisscom (for customers who have a domain name registered by Swisscom). These documents are published on and shall be deemed to have been accepted by the customer upon registration for a service or the continued use of a service. In cases where Swisscom makes available software of third parties, the customer shall be deemed to have accepted the license agreement terms of the corresponding right holders to this software by using the software. The services may only by used by customers who are resident or have their registered office in Switzerland. 2 Swisscom services 2.1 Web hosting The web hosting service provides for the hosting of a customer's website on the Swisscom web server for a fixed monthly fee. The individual web hosting packages and further information can be found at HomepageTool The HomepageTool service allows customers to create, design and update their website for a fixed monthly fee. The individual HomepageTool packages and further information can be found at A HomepageTool package cannot be procured separately and can only be subscribed to in conjunction with a web hosting package. 1/8

2 2.3 Upgrade/downgrade It is possible to upgrade a service to a higher quality package and downgrade a service to a smaller package at any time without incurring any costs. 2.4 Technical adjustments Swisscom aims to maintain its infrastructure to the latest industry standard. New technical developments, security requirements and/or changes to the service range of Swisscom s contractual partners or to the software used by Swisscom may result in the extension or restriction of the service range. This shall not give customers the right to terminate the contract as long as the aforementioned changes do not greatly disadvantage the customer and are not subject to a charge. 2.5 Technical support Fault acceptance The Swisscom Help Desk is available to customers round the clock (7x24h) for technical support in the case of faults, and can be contacted in German, English, French and Italian on free phone number and also at [email protected] Maintenance windows Where possible, Swisscom will inform customers in good time about business interruptions which are necessary for the purpose of faults rectification, periodic maintenance work, the introduction of new technologies, etc. Swisscom aims to keep interruptions to a minimum and to schedule them at times of low traffic Restoration of data Swisscom services do not include the restoration of data in cases where data is lost. The customer shall be solely responsible for backing up all of his or her data (incl. s). If data still exists at Swisscom, the customer shall have the opportunity to request the restoration of data by Swisscom against payment for the effective time and effort involved. This shall not include HomepageTool data. Homepagetool data cannot be restored. 3 Customer contribution 3.1 Duty to cooperate Infrastructure The customer shall create and maintain the necessary infrastructure, in particular an internet connection, the required software and hardware and a domain name, in good time and at his or her own expense. If the customer does 2/8

3 not possess the latter, this can be obtained from Swisscom. Furthermore, the customer is obliged to keep the software that he or she uses technically up to date, maintain the software on a regular basis, perform regular updates and follow any instructions from Swisscom with regards to the maintenance, updating or deletion of software. Passwords The customer shall undertake to choose suitable passwords, store them with care and protect them from access by third parties. The customer shall be personally responsible for access to his or her account. If the customer identifies misuse of his or her account, he or she must inform Swisscom immediately. Data backup The customer shall ensure the additional separate backup of his or her data. Faults The customer must immediately report faults to the Swisscom Helpdesk on the free phone number Should the customer suffer any losses due to the failure to immediately report a fault, the customer shall be deemed responsible; Swisscom shall assume no liability for any resulting losses. Responsibility for content and accounts Swisscom shall not be obliged to check the hosted content. The customer shall be responsible for content of any form which he or she publishes on websites hosted by Swisscom. Illegal, offensive or prohibited content as well as content which results in the disturbance or personal harassment of third parties shall not be allowed. In particular, content which constitutes a crime (namely in the areas of pornography, racism or defamation) and breaches the rights of third parties, in particular intellectual property rights in a broader sense (e.g. copyrights or trademarks) or personal rights, shall not be permitted. Swisscom has undertaken to comply with the rules of the simsa CCH. If there is evidence of prohibited content, the CCH stipulates a so-called notice and takedown procedure. The customer is obliged to obtain the required knowledge of this procedure. The customer accepts that Swisscom shall view the hosted content if: - it receives notification that content hosted by Swisscom is prohibited (notification pursuant to the CCH) - Swisscom is asked to do so by a court or authority - Swisscom could make itself legally responsible or liable 3/8

4 - Swisscom wishes to perform a spot check. The inspection following the receipt of notification takes place pursuant to the notice and takedown procedure defined in the CCH. The detailed Code of Conduct is published in the Web Hosting Code of Conduct at The customer shall also ensure that his or her web hosting account is not misused by unauthorised third parties for prohibited attacks and manipulations (spam, phishing, DDoS attacks, malware, etc.). Normal use for business customers and private customers The web hosting service is intended to be used for purposes which fall within the scope of normal usage for business customers and private customers, respectively. This normal usage for business customers and private customers does not include the use of the web hosting service for the purpose of saving data. Should there be any indication that the customer is using the service for the purpose of saving extensive volumes of data, Swisscom shall reserve the right to suspend or restrict the service provision at any time, terminate the contract or initiate other suitable measures. The customer is also not authorised to make available to third parties (free of charge or for a fee) any service which it has procured. 3.2 Imprint obligation for electronic e-commerce Customers who present offers (goods, works, services) on their website which are publicly accessible are obliged to incorporate the following information in their websites: - Customer s first name and surname; in the case of companies the name of the company; - Address of place of residence or company s registered office; - Telephone and fax number(s), address(es) and any other available contact addresses which enable direct and efficient communication. Post Box addresses or the possibility of communication solely via a contact form will not suffice. 3.3 Lacking identity of domain holders webhosting customers If a customer purchases the web hosting service on the basis of a domain name which belongs to a third party, the customer shall be deemed to have provided a guarantee upon purchasing the web hosting service and/or accepting this 4/8

5 service description that he or she has been authorised by the domain holder to procure the web hosting service for the corresponding domain name in his or her own name. If a person proves that the domain name used by a customer together with the web hosting service does not belong to the customer, but rather to the person in question, Swisscom shall terminate the existing web hosting contract with the customer (see section 7.3) at the request of the domain name holder and reactivate the domain name for the holder. It is not possible to transfer the existing web hosting agreement or the content from the customer to the domain name holder. The contract with the existing web hosting service customer shall be terminated. The existing customer shall be personally responsible for backing up the content. The domain name holder shall have no entitlement to the content and data of the original web hosting account with his or her domain. The data can neither be backed up by Swisscom nor can the content and configuration of the original website be migrated to the web hosting account operated by the domain name holder. 3.4 No rights of economic beneficiaries vis-à-vis Swisscom Customers of the webhosting service can only be a natural or legal person; several persons together who do not represent a legal entity cannot be a customer collectively. If a customer purchases the webhosting service in his or her own name, the legal relationship only exists between this person and Swisscom even if this person operates the website on behalf of an association or legal person. The association or beneficial owners have no right to the corresponding web hosting account or to notification of the relevant access data. In order to avoid internal disputes as regards authorisation for the account, associations in particular are advised to purchase the domain name and the web hosting service in the name of the association and not in the name of the association member responsible for the operation of the website. 4 Billing/Payment default 4.1 Billing The payment obligation shall begin upon activation of the relevant service by Swisscom. Any delay caused by the customer shall not release him or her from the payment obligation. Swisscom shall invoice the customer the monthly amount with the next invoice. If the customer pays by credit card, he or she will be charged the monthly amount immediately. The fee will subsequently be debited on a monthly basis. 5/8

6 4.2 Payment default If the customer has not paid the invoice by the due date or within the specified payment period, Swisscom may interrupt service delivery after an unsuccessful reminder, i.e. temporarily block the customer s webhosting account, take other measures to prevent damage and/or terminate the agreement without notice and compensation. In this case all domain names will be released for deletion provided they are registered and billed via Swisscom. In the event of temporary blocking of the customer s webhosting account, Swisscom shall demand a fee of CHF to reactivate the account. Monthly fees are still owed during the temporary blocking period. 5 Data protection In addition to the data protection provisions in the GTC, the customer accepts that, in the event of a seizure by an authority or serious grounds for suspicion on the part of Swisscom, the non-public areas of the customer's web hosting account may be accessed. 6 Warranty/Liability In addition to the warranty and liability provisions in the GTC (sections 11-12), the following provisions shall also apply. In the event of inconsistencies, these provisions shall take precedence over those in the GTC. The liability of Swisscom and third parties working on behalf of Swisscom for losses suffered in the event of slight or moderate negligence is excluded. Swisscom shall also accept no liability to the extent permitted by law for consequential losses, loss of production, lost earnings or loss of data. Should the customer fail to perform a separate data backup (section 3.1) and data is lost, Swisscom shall accept no liability to the extent permitted by law for the lost data and the resulting losses. Swisscom does not bear any responsibility for the faults and freedom from defects of the software used by the customer and cannot guarantee that the services will work flawlessly on all the customer s end devices. If changes are made to name server information (DNS), Swisscom shall not be liable for delays caused by the customer (e.g. delayed response to confirmation s). Swisscom shall accept no costs for work carried out by the customer or third parties working on behalf of the customer in connection with the limitation and/or rectification of any faults relating to a service. Costs for work carried out by Swisscom in connection with the limitation and/or repair of any faults relating to one of its services shall also be borne by the customer if the customer has demanded the inspection and the cause of the fault is attributable to the 6/8

7 behaviour of the customer or the equipment it uses. The customer shall be liable for all costs incurred by Swisscom as a result of third parties asserting claims against Swisscom in connection with content on the hosted customer website. This shall also include, in particular, court costs imposed on Swisscom. Swisscom may take recourse against the customer at any time and charge any costs to him or her. The costs incurred by the customer as a result of claims asserted by third parties shall be borne in full and exclusively by the customer. 7 Measures in the event of misuse Swisscom reserves the right to take measures and sanctions that it deems appropriate: - if there is concrete evidence or justified suspicion of illegal or criminal conduct (e.g. via spot checks) - if the Code of Conduct is breached - in the event of any other misuse of the websites - if the requirements of the CCH are met - if a corresponding court or official order is received. Swisscom has the right, either with or without advance warning depending on the circumstances, to: - prompt the customer to ensure that the website is legally compliant and to act in a lawful manner - implement the notice and takedown procedure in accordance with the CCH - fully or partially block access to the customer website and stop the hosting services - suspend the services and block access to the customer website - terminate the contract without notice and without providing compensation - disclose the identity of the customer to the courts and authorities or third parties at the request of the former - inform the criminal authorities and/or the Cybercrime Coordination Unit Switzerland (CYCO) of the actions and identity of the customer in the event of criminal conduct by the customer or third parties acting under his or her supervision - demand compensation - take other measures. Swisscom shall be authorised to charge the customer for any costs arising in connection with the handling of a notice. For any other losses incurred by Swisscom on the basis of asserting claims, the customer shall be liable to pay Swisscom compensation. Swisscom may demand collateral from the customer 7/8

8 as a precautionary measure in order to cover such losses. If this collateral is not paid, Swisscom may discontinue the service. 8 Termination 8.1 Termination of services by notice The services may be terminated by each party prior to the expiry of the monthly subscription, but no earlier than at the end of the minimum contractual term of 12 months. The customer may terminate the service via his or her account at The termination of the web hosting service automatically results in the termination of the HomepageTool service. In the case of a domain name registered by Swisscom for the customer, the relevant domain name shall be cancelled on the next possible cancellation date in accordance with the contractual provisions of the relevant register operator. If the customer wishes to continue using the domain, he or she may transfer it to a new provider (in his or her control panel). The customer shall assume sole responsibility for seeking a (new) provider for his or her domain names or concluding a corresponding agreement directly with the register operator and ensuring the timely domain transfer (i.e. before the expiry of the registration term with Swisscom). 8.2 Termination at the request of the domain name holder If the domain name holder, who is not identical to the customer of the web hosting service, asserts his or her rights to his or her domain name (section 3.3), Swisscom shall be entitled at all times to extraordinarily cancel the web hosting service (possibly together with the HomepageTool) by giving 15 days' notice. Swisscom, April /8