General Terms and Conditions - CH

for Services and Products Provided by CipherSpace GmbH

  • Last Updated September 2, 2015

Contents

  1. Introduction
  2. Products and Services
  3. Your General Rights and Obligations
  4. Duration
  5. Payment
  6. Out of Scope Activities
  7. Taxes
  8. Service Windows, Interruptions and Misbehavior
  9. Liability
  10. Indemnification
  11. Force Majeure
  12. Data Protection
  13. Confidentiality and Non Disclosure
  14. Miscellaneous
  15. Applicable Law and Jurisdiction

1. Introduction

These general terms and conditions (“Terms”) set out the basis upon which CipherSpace will provide You with products and services agreed in separate individual contracts. The Terms are integral part of each actual and future contractual relationship with You. CipherSpace will not provide you products and services until you agreed to the Terms.

In the Terms “CipherSpace” means CipherSpace GmbH and “You” or “Your” means the individual, company or organization which requests CipherSpace to provide those products and services.

2. Products and Services

CipherSpace may make recommendations on the type of products and services You require based upon the information and requirements you provide. CipherSpace shall not be responsible for any inaccuracies or issues caused with the information and requirements You supply. Any timelines and implementation plans specified by CipherSpace are based on its reasonable assessment of the current facts, are an estimate only and may change. Delivery dates for products and services stated by CipherSpace shall not be taken as binding. CipherSpace shall strive, however, to keep the specified dates to the best of its ability. With the despatch of products, usage and risk shall pass to You. Except where CipherSpace agrees otherwise in writing time shall not be of the essence. CipherSpace shall notify You as to how and when the products will be delivered.

Many of the products and services CipherSpace recommends are sourced from third party suppliers and if You wish to purchase them then You will need to enter into terms with the relevant third party supplier separately. You agree that You will do this when reasonably demanded by CipherSpace, and will comply with those terms at all times and to the maximum extent permitted by law. CipherSpace shall not be responsible or liable for the performance of third party products or services. You are solely responsible for the correct licensing vis-à-vis such third parties.

If CipherSpace requires Your (or Your third party suppliers’) assistance and information in supply of their products and services, then you shall supply that assistance and information to CipherSpace (or procure its provision) promptly upon request. You shall be entirely responsible for the functionality and performance of Your own information technology systems and will ensure Your third party suppliers co-operate fully with CipherSpace.

3. Your General Rights and Obligations

You must use CipherSpace’s systems with due care and according to CipherSpace’s instructions, specifically to satisfy the requirements for the operating environment. You shall assist actively in any fault localisation.

If CipherSpace is not contracted to perform backup services in a separate agreement, then You are responsible for ensuring that you make regular back-up copies. CipherSpace is not obliged to make back-up copies of Your data and is not liable for any loss of Your data. CipherSpace guarantees in no way that Your data are archived or available or can be recovered based on a back-up copy made by You.

You shall be entirely responsible for the content of information you make publicly available on the internet, on services hosted by CipherSpace and that You disseminate on telecommunications networks. You shall refrain from improper and unlawful uses and transactions on the internet and the use of CipherSpace services for such purposes (such as the publication of erotic, pornographic, racially discriminating and violent content, illegal or offensive content in general, improper use of copyright-protected works, e.g. by circumventing DRM, using torrent software, creating links or disseminating and publishing illegal material by other means; immoral or radical political information, information causing unrest or personal nuisance, malware, trojans, viruses, scripts (such as Perl, PHP), reselling of CipherSpace services etc. If CipherSpace becomes aware of or is notified by a third party of unlawful content or improper use of CipherSpace services, CipherSpace is entitled to block storage areas immediately and/or issue a notice to You.

In the event of usage in breach of contract within the meaning of this clause, CipherSpace can demand surety from You equivalent to the anticipated costs of defending itself against possible third-party claims. CipherSpace can offset its own claims against the surety. If the surety is not paid within the due time, CipherSpace is entitled to suspend or block its services and the products delivery without further warning, and in serious cases dissolve the contract without notice or compensation, possibly demanding damages from You.

4. Duration

Except where otherwise agreed in writing any services CipherSpace procures or provides will be supplied for five year periods, which shall automatically renew unless one party gives written notice to the other to terminate them three months or more before the end of the then current period. All products and services that directly rely upon upstream vendors will have terms that are aligned with CipherSpace’s term commitment to the respective up-streams.

CipherSpace is entitled to dissolve the contractual agreement without notice or compensation for good cause (in particular if the contractual conditions are not adhered to) and is entitled to terminate or block the services if You are in default with payment for more than 10 calendar days.

5. Payment

You must pay all periodic pre-determined charges notified by CipherSpace to You in advance before the 1st of every month. All other charges will be paid within 7 days of being invoiced by CipherSpace (NET 7).

If no payment or less than full payment has been received by the end of the due payment term, You are automatically in default. In that case You are liable for 8% p.a. interest default. CipherSpace is entitled in case of default to withhold further deliveries of products without notice or cease to provide services 10 days after issuing the relevant reminder. If You are in default of payment, and if You raised no substantiated objections to the invoice in writing, CipherSpace can suspend all services without further notification, take other steps to avert losses and dissolve the contract without notice or compensation. You are liable for any reminder and collection costs, but for at least CHF 30 per reminder, including court and legal costs. CipherSpace reserves the right to claim further default damages.

6. Out of Scope Activities

For services not provided by CipherSpace, You shall be solely responsible for entering into a supply agreement with a relevant third party supplier. If You require CipherSpace to provide any such out-of-scope services, then CipherSpace will charge You sums mutually agreed and based on its then-current standard man day rates for those services.

7. Taxes

In addition to any sums quoted You will promptly pay all taxes, duties and surcharges (e.g. VAT, federal and local taxes, and other regulatory fees) set out in any CipherSpace invoice issued to You.

8. Service Windows, Interruptions and Misbehavior

CipherSpace reserves the right to carry out regular maintenance work on the systems during specified service windows. During this time operation of the services may be temporarily interrupted. CipherSpace will inform You in good time about other service interruptions necessary for elimination of faults, performance of maintenance work, introduction of new technologies etc. CipherSpace will strive to keep such interruptions brief and schedule them during quiet periods.

CipherSpace reserves the right to carry out emergency maintenance work without any notice to You and will strive to keep such interruptions as brief as possible.

CipherSpace reserves the right to set limits on the consumption of resources, and to block Your services if Your behaviour impairs operation of the service in any way.

9. Liability

CipherSpace shall supply the services in accordance with any service levels expressly set out in writing and issued to You. CipherSpace only uses experienced IT professionals with industry standard experience to perform the services it supplies and shall supply those services using reasonable skill and care.

Except where agreed in writing, or otherwise required by law, CipherSpace gives no warranties and makes no representations to You in connection with the products and services it supplies. CipherSpace assumes no liability either for ensuring the permanent availability of the offered services, its servers, or for ensuring that the services, including the hardware CipherSpace uses, operate without interruption or faults.

Where CipherSpace supplies any third party products then it shall use its reasonable endeavours to pass on any manufacturer warranty it receives in connection with them, but in certain cases you acknowledge that this may not be possible.

CipherSpace shall only be liable – irrespective of its legal basis – for direct damage caused intentionally or by gross negligence. To the extent permitted by law, CipherSpace excludes any liability – irrespective of its legal basis – for itself, its auxiliary staff and third parties engaged by CipherSpace. In particular, CipherSpace accepts no liability for damage caused to You as a result of transmission errors, technical defects, capacity overload, interruptions (including system-related service and maintenance), delayed transmission, disruptions, illegal interventions in the telecommunications equipment or networks by third parties or as a consequence of computer viruses, malware or trojans.

The maximum extent of CipherSpace’s aggregate liability to You shall in no case exceed the contractually agreed annual service charge payable to CipherSpace under these terms, to a maximum amount of [CHF 50’000] per damage incident per calendar year.

CipherSpace shall not be liable to You for any loss of revenue, profit or loss of data however arising. However, the creation of backup of any data provided to CipherSpace lies in Your sole responsibility (see also paragraph 3).

In no event shall CipherSpace be liable to You for any indirect, special, incidental, or consequential losses or damages of any kind whatsoever, including, without limitation, lost revenue or profits, business interruption, or loss of data, whether any claim is based upon breach of contract, negligence, strict liability, tort, or otherwise.

Nothing attempts to exclude or limit any CipherSpace liability or responsibility for death or personal injury caused by its negligence.

10. Indemnification

You agree to indemnify, defend and hold harmless CipherSpace and its officers, directors, employees, consultants, agents, founders and partners, from and against any claims, actions, liability, losses, damages and/or demands, including without limitation reasonable legal and accounting expenses, due to or resulting from:

  • Your use or receipt of products and services supplied by CipherSpace and/or its third party suppliers;
  • Your connection to those products and services; and
  • Your and Your users’ violation of any third party’s rights (including third party intellectual property rights).

11. Force Majeure

CipherSpace shall not be liable or responsible to You or Your customers for any costs, expenses, or damages due to delays in the supply of products or the performance of services hereunder, when such delay is due to causes beyond its reasonable control. Force majeure covers all unforeseeable events and events whose effects on performance of the contract are not attributable to either party, nor to third parties engaged by them, including, but not limited to acts of god (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, terrorist activities, labor dispute, strike, lockout or interruption or power failure, satellite or telecommunications service.

12. Data Protection

CipherSpace collects, stores and processes the personal data of customers as required to perform the individual contract with You (to process the ordering of services and products in connection with an offer, the contract or these Terms, and for invoicing) according to statutory regulations and the following special provisions.

CipherSpace shall disclose to third parties (and their suppliers), both in Switzerland and abroad, only the personal and customer data necessary to perform the individual contract, to design and develop its services to meet the requirements.

CipherSpace will disclose personal and customer data to the authorities in Switzerland and abroad in connection with civil, administrative and criminal proceedings, where a legal and enforceable judgment, disposition or legal obligation applies.

Transactions on the systems and traffic data may be logged by CipherSpace and/or the third-party providers and may be retained during the statutory period. These logfiles will be used exclusively to perform the services, comply with legal provisions, locate faults or collect performance data.

CipherSpace will take precautions to protect its infrastructure from unauthorised third-party access. However, no guarantee can be given of absolute security against unauthorised access or unauthorised interception. CipherSpace cannot accept liability for such attacks. The data are thus transmitted across borders on a regular basis and are not monitored, including when the sender and recipient are both in Switzerland.

You remain the data owner within the meaning of the statutory provisions and are responsible for data protection compliance in relation to Your own data.

It is Your responsibility to check whether the legislation requires that You notifies Your customers that you are transferring their data to CipherSpace and have obtained their approval.

You have a right of information and correction for personal data relating to You. You may exercise this right by addressing the relevant inquiry to CipherSpace.

13. Confidentiality and Non Disclosure

This obligation of secrecy and confidentiality shall apply to all the Your confidential information and data made available to CipherSpace or third parties appointed by it in preparing to make the contract or during the term of such contract, whether in documentation or files. All data and information not already publicly accessible or that will become publicly accessible during the performance of the contractual relationship with You shall be treated as confidential, without this resulting from an infringement of this statement. Not treated as confidential shall be information and data with no significance that establish no identifiable connection with the confidential data. You agree any documentation and prices supplied by CipherSpace constitute confidential information and/or copyrighted material of CipherSpace. You shall only use that information and material in connection with Your receipt of the products and services and shall not disclose, provide, or otherwise make available such information and material in any form to any third party without the prior consent of CipherSpace. You shall take reasonable steps to ensure You, Your employees and agents take reasonable measures to protect such information and material with the same degree of care.

CipherSpace undertakes not to disclose data and information to third parties, copy it, back it up, process or analyse it, except under the circumstances described in this Terms.

After installing and setting up the systems for You, CipherSpace may provide You access data and passwords. You must immediately substitute the temporary password with a new one chosen by Yourself. The password should not be an obvious combination and must consist of the stated minimum number of characters, ideally a combination of numbers, letters and special characters. You are responsible and liable for the safekeeping and any misuse of the password. If the password is lost, CipherSpace must be notified without delay.

You cannot assert liability or any other claim against CipherSpace if third parties gain knowledge of the password resulting from its careless safekeeping, use or disclosure, or otherwise making it available, and unauthorised changes are made or other damage occurs.

30 days after termination of the contractual relationship with You, Your data and information will be deleted, where lawfully permitted. At Your request CipherSpace will confirm the deletion/destruction of the data in writing. At Your request a longer period for the retention of back-ups can be agreed.

This non-disclosure statement shall apply until it is confirmed that Your data and information have been deleted or that the contractual relationship is otherwise terminated, but for 2 years at most.

14. Miscellaneous

If any term or provision of these Terms or the individual contract, or of any document incorporated herein by reference, is held by a court of competent jurisdiction to be contrary to law, then that term shall be severed and the remaining provisions or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby. Each provision of the Terms shall be valid and enforceable to the extent permitted by law and unless prohibited by law.

No consent is waived and no breach is excused unless that waiver or consent is in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of a breach by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach.

You acknowledge that, if CipherSpace services are used from foreign countries, foreign laws may be violated. You are responsible for taking the requisite care to inform Yourself in this regard. CipherSpace disclaims all liability in relation to this. You also acknowledge that there may be import and export restrictions for the encryption algorithms and undertake to comply with these accordingly.

15. Applicable Law and Jurisdiction

These terms will be subject to the laws of Switzerland, to the exclusion of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods). Exclusive place of jurisdiction shall be the Canton of Zug, Switzerland.