GENERAL TERMS AND CONDITIONS FOR SERVICES OF VERSION 1.0

Transcription

1 GENERAL TERMS AND CONDITIONS FOR SERVICES OF SWITCH, WERDSTRASSE 2, 8021 ZURICH VERSION 1.0 These General Terms and Conditions replace the previous General User Regulations for the Services of SWITCH of 10 December 1999 and the General Service Terms and Conditions, Version 5/ Legal basis 1.1. Subject of the General Terms and Conditions These General Terms and Conditions regulate the terms for purchase of services from SWITCH by the Contractual Partner and its End Users, with the exception of services which are subject to special SWITCH regulations such as domain names Conditions for the purchase of services These GTCs in the current version and the applicable Service Specifications for the individual services (hereinafter known in their entirety only as Service Contract) form part of the relevant Service Contract between SWITCH and the Contractual Partner. In the event of contradiction, the Service Contract takes precedence over the service specification, which takes precedence over these GTCs. Not all services have a service specification Assignment and set-off of claims The Contractual Partner may not transfer its claims against SWITCH under the Service Contract to third parties without the prior written consent of SWITCH. The right to different rules in the applicable Service Specification is also reserved.

2 Set-off pursuant to Article 120 Swiss Code of Obligations is not permitted unless otherwise provided in the applicable service specification Acceptance of the conditions for purchase of services By using the services, the Contractual Partner accepts the valid terms and conditions of the Service Contract on behalf of itself and its End Users. The Contractual Partner is responsible for use of the SWITCH services by it and its End Users in accordance with the Service Contract and the applicable legal regulations. 2. SWITCH supplies 2.1. Services The services are specified in technical and legal terms in the specific Service Specifications Systems, devices and software Any systems, devices and software supplied to the Contractual Partner for use of the services remain the property of SWITCH and the Contractual Partner obtains no rights of free disposal or copyright in them. The Contractual Partner is not allowed to make modifications to such systems, devices and software without permission from SWITCH; it is liable for damage caused to them due to mishandling by its employees or third parties Restriction of service provision by SWITCH SWITCH adopts the measures defined in the service specifications or which it deems appropriate to protect its supplies against negative external influences (viruses and other malicious code, unauthorised access to systems and data etc.). However SWITCH cannot guarantee that such measures will always be effective. Therefore the Contractual Partner cannot rely solely on the measures by SWITCH to protect its systems and data and remains responsible for acting against negative external influences Auxiliary Persons and third parties SWITCH may provide its services by employing auxiliary persons and third parties and gives the same guarantee of their supplies and conduct as for its own supplies. The right to different provisions in the applicable Service Specifications is reserved. 2/8

3 3. Prohibited use 3.1. Definition Use of a SWITCH service contrary to the Service Contract and the applicable laws is prohibited, particularly if the use a) Disrupts or damages other SWITCH customers or their End Users or service providers; b) Adversely affects the operation of the services of SWITCH and/or its partner networks; c) Is intended for mailing of unsolicited advertising or other bulk mailings (spamming) (Article 3 para. 1 o in association with Article 23 Law Against Unfair Competition; or d) Is intended for use to prepare or carry out illegal activities or unauthorised access to systems, services, data or information. This applies in particular to misuse of the SWITCH services to commit or support criminal acts including but not limited to unauthorised data retrieval, unauthorised penetration of data processing systems, data damage, fraudulent abuse of a data processing system, money laundering, distribution and/or retrieval of unlawful or indecent content (e.g. depictions of violence, hard porn, incitement to crime or violence, interference with religious or cultural freedom, or racial discrimination) or prohibited use or exploitation of works protected by copyright (cf. Articles 135, 143, 143b, 144b, 147, 197 para. 3, 259, 261, 261b and 305b of the Swiss Criminal Code, Article 67/68 of the Copyright Law Act) Measures in the case of prohibited use In the event of prohibited use, SWITCH holds discussions with the Contractual Partner. SWITCH considers the proportionality of any action to be taken. The Contractual Partner and its End Users are obliged in such cases to support SWITCH and third parties working with SWITCH in resolving cases of prohibited use, particularly if criminal offences are suspected and in cases of damage. In urgent cases of well-founded suspicion of prohibited use pursuant to sub-clause 3.1, SWITCH may immediately and without prior notification to the relevant Contractual Partner and/or its End User: a) Delete the data in question (e.g. pirate copies, messages with unlawful content); b) Suspend provision of the service in question to the relevant End User and/or Contractual Partner; and/or c) Stop access by the relevant End User(s) or connectivity to the relevant Contractual Partner. The End User(s) and/or Contractual Partner are not entitled to compensation or other claims in such cases. 3/8

4 3.3. Liability of Contractual Partner in the case of prohibited use The Contractual Partner may be held responsible or found liable for all damage caused to SWITCH or third parties by prohibited use of the SWITCH services by it and/or its associated End Users. 4. Cooperation by the Contractual Partner 4.1. Duty of cooperation of Contractual Partner So that SWITCH can supply its services, the Contractual Partner provides the administrative, organisational, technical and legal requirements needed on its part such as designating contact persons and collaborating in the evaluation of faults, at its own expense. The Contractual Partner undertakes to take the necessary measures to ensure that the requirements under the Service Contract are met and prohibited use of SWITCH services is prevented. In particular the Contractual Partner undertakes to commit its associated End Users to compliance with the provisions of these GTCs and the SWITCH service specifications Failings by the Contractual Partner If the Contractual Partner neglects its duties of cooperation, SWITCH may take appropriate action. The right to civil compensation claims is reserved. 5. Fees, billing and terms of payment 5.1. Fees The fees for the SWITCH services are stipulated in the Service Contract Billing at cost If a service is billed on a time basis, the actual time spent plus expenses is billed. Third party costs are passed on Billing The services are billed quarterly in advance unless otherwise stipulated in the Service Contract Payment period SWITCH invoices are due 30 days from date of invoice. If payment is late the Contractual Partner is automatically in default, in which case it is liable for default interest of 5%. The right to the other legal default rights is reserved. 4/8

5 6. Period of services The Contract start and end dates are stipulated in the Service Contract. SWITCH generally enters into fixed-term contracts. SWITCH is entitled to extraordinary termination of the Service Contract by giving three months notice to terminate on any date, if after a reminder the Contractual Partner fails to restore the Contractual conditions when in breach of Service Contract or to correct the defect within a reasonable time, particularly if the partner has already been warned in writing. SWITCH may also give extraordinary notice for good cause. 7. Guarantee and liability of SWITCH 7.1. Guarantee SWITCH provides its services with care and according to the state of the art, within the limits of its financial and human resources. SWITCH cannot give any guarantee of specific success in relation to its services or of uninterrupted and correct provision of the services. SWITCH uses its best effort to meet the service targets defined internally. Failure to meet the service targets does not generate a claim for reimbursement of payments made or other claims by the Contractual Partner. If the service targets are not met repeatedly for the Contractual Partner, SWITCH may adopt suitable measures. The Contractual Partner shall itself adopt measures to avert the consequences of errors and operational interruptions. SWITCH is not obliged to take data protection and backup measures unless this is expressly defined in the service specification. The right to contrary warranty provisions in the Service Contract is reserved. The services are available to the Contractual Partner for use 24/7. Contrary stipulations in the Service Contract and faults, which cause interference to the services remain unaffected. SWITCH undertakes to initiate or implement measures to remedy faults and malfunctions in the services within its normal working hours. The normal working hours are weekdays, Monday to Friday, to 17.00, excluding the federal, cantonal and Zurich city public holidays and the dates from 24 December to 2 January inclusive. Depending on the urgency, SWITCH will also take measures to maintain good service quality outside these periods but gives no Contractual undertaking Liability of SWITCH SWITCH is liable towards the Contractual Partner for direct personal injury and material damage caused by fault, but only up to a maximum of the annual sum payable by the Contractual Partner concerned for the service under the Service Contract in the year the damage occurs. SWITCH is liable as defined above for personal injury or material damage caused by its auxiliary persons. Further or other liability on the part of SWITCH and its employees and auxiliary persons is expressly excluded if permitted by law. Data security, provision of interim 5/8

6 solutions and the results obtained by using the services supplied are the responsibility of the Contractual Partner. In consequence, subject to cases of statutory liability, SWITCH and its employees and auxiliary persons are not liable for data loss or damage, purely financial losses, direct and indirect damage, consequential damage, loss of revenue or loss of savings. SWITCH rejects all liability towards the End User, if permitted by law Force majeure In cases of force majeure, i.e. if SWITCH is prevented from complying with one or more obligations under the Service Contract for reasons which cannot reasonably be controlled by itself and by any third parties brought in by it, such as in particular natural events, mobilisation, war, rebellion, epidemics, accidents, sabotage, terrorism, serious operating malfunctions, interruption of telecommunication connections, in particular those of the internet, labour disputes or official measures, for the period during which the case of force majeure continues, and during an appropriate start-up period thereafter, it is exempt from compliance with the obligation(s) concerned and is not liable for any direct or indirect damages resulting for the Contractual Partner from nonperformance of the obligation(s) concerned. 8. Software in particular 8.1. Licences The delivery and/or licensing of products of a third party (manufacturer) or SWITCH are governed primarily by the delivery, licence and warranty conditions of the manufacturer or SWITCH, to which the Contractual Partner and its End Users shall also be subject and which shall be made available to them in suitable form. In cases of gross or continuing violation of the licence conditions, the licence may be revoked Intellectual property All rights, particularly copyright and other intellectual property rights (patent, trademark, design rights) associated with SWITCH services remain with SWITCH or the manufacturer. This also applies to the rights to the results achieved by SWITCH and/or its auxiliary persons as a result of project work in collaboration with SWITCH, analysis of the Contractual Partner s software or problems, programming work etc. SWITCH is entitled to exploit these results free of charge. In connection with the SWITCH services and the results achieved by SWITCH and/or its auxiliary persons, the Contractual Partner only acquires a non-exclusive right of use for itself and its associated End Users to the extent necessary for permitted use of the service under the Service Contract. The Contractual Partner shall not transfer such right of use to third parties Custom production The results of services (including software developments) and custom work produced by SWITCH for a Contractual Partner become its property, with the intellectual property 6/8

7 rights transferred, after payment in full. SWITCH is free to reuse and exploit the ideas, methods and know-how used for the development without cost consequences. 9. Confidentiality SWITCH and the Contractual Partner undertake to treat the other party s data, documentation and information known to them in connection with the SWITCH services as confidential and to protect it as appropriate from unauthorised access by third parties. The Contractual Partner s data, information and documentation may be used by SWITCH on a need-to-know basis. Transfer of SWITCH data, information and documentation to third parties by the Contractual Partner requires the express prior consent of SWITCH. The confidentiality obligation also covers data, documentation and information, which is mutually exchanged at SWITCH information and training events and is not in the public domain. 10. Data protection The Contractual Partner agrees to data on itself and its End Users being forwarded by SWITCH to domestic or foreign Contractors, licensors etc. for data processing. This includes personal data such as IP addresses and all data required for due Contract performance in relation to SWITCH service providers, particularly in cases of abuse. SWITCH and the Contractual Partner guarantee compliance with the applicable data protection regulations in all cases and for all activities. The Contractual Partner is solely responsible for protection and security of the personal data of third parties (including its personnel) processed on its systems. Special requirements which extend beyond the general data security and protection measures only have to be implemented by SWITCH if expressly agreed in writing with the Contractual Partner concerned. 11. Concluding provisions Entry into force, amendment and cancellation of these GTCs These GTCs enter into force on 1 August SWITCH may amend these GTCs and the service specifications at any time. The Contractual Partner will be notified of the amendment by and/or via the website or other suitable means. 7/8

8 11.2. Continued application of individual provisions The provisions on liability and warranty, confidentiality, intellectual property rights and law and jurisdiction continue to apply indefinitely after the end of the Service Contract Partial invalidity Should any provision of these GTCs, the Service Contract or a Service Specification be or become invalid or legally ineffective, the other provisions continue to apply. In such case the invalid or ineffective provision shall be replaced by a valid and effective provision which comes as close as legally possible in economic effect to the invalid or ineffective provision Applicable law This GTC s and the Service Contract is governed by substantive Swiss law, to the exclusion of UN Law of Purchase and the Swiss conflict of laws rules Jurisdiction The jurisdiction for all disputes is Zurich Commercial Court. 8/8