Terms and Conditions

1. conclusion, validity of the terms and conditions:

1.1 These General Terms and Conditions (GTC) govern the mutual rights and obligations of xyxle ag, Wermatswilerstr. 8, 8610 Uster Switzerland on the one hand and the customer (hereinafter referred to as "Customer") on the other hand. A contract for the use of xyxle's services shall only be concluded upon xyxle's acceptance of a Customer's order.

1.2 If the Customer's order is placed via the order mode on xyxle's homepage or in any other electronic way, this shall be deemed to be a binding order on the part of the Customer.

1.3 These General Terms and Conditions (hereinafter referred to as "GTC") shall serve as the basis for any conclusion of a contract between the Customer and xyxle. They shall also apply to all further contracts without express reference. With the first access to a computer of xyxle or the services of the xyxle network, these GTC shall be deemed accepted. Counter-confirmations of the user or customer with reference to his terms and conditions of business or purchase are hereby objected to. Agreements deviating from these Terms and Conditions and individual contracts including this written form clause must be in writing.

1.4 Contradictory provisions in the xyxle Customer Agreement or the Individual Orders shall prevail over these GTC.

2. Scope of services and service obligations of xyxle:

2.1 The scope of services of xyxle is limited to the provision of various services in the field of data management, consisting of online software and services.

2.2 The obligation to perform and the scope of the individual xyxle services or individual services of xyxle (hereinafter also referred to as the "Services") are set out in the service description of xyxle ag and in the Customer Agreement.

2.3 The Internet is a worldwide system of independent, interconnected networks and computers. xyxle only has influence on the systems which are located in its own network and therefore cannot guarantee error-free services.

2.4 xyxle is entitled to modify the services to be provided as well as these GTC to the extent that xyxle deems this to be reasonable for technical reasons or due to market developments in its discretion and the Customer's interests, in particular the adequacy of service and consideration, are not unreasonably affected thereby. Upon notification of the changes or publication of the General Terms and Conditions, they shall become effective for the customer immediately, unless objection is raised in writing within 7 days. In such a case the Customer has the right to terminate the affected contract according to the contractual period.

2.5 xyxle shall ensure the permanent availability of its infrastructure (servers, Internet lines, etc.). For maintenance purposes and in case of unexpected system failures, xyxle may at any time and without notice limit the availability of services or put them out of operation for an indefinite period of time.

2.6 Insofar as xyxle provides services free of charge, such services may be discontinued at any time and without prior notice. This shall not give rise to any claim for reduction, reimbursement or damages.

3. obligations of the customer:

3.1 Depending on the scope of the xyxle service, a close cooperation between xyxle and the Customer may be necessary. In such a case interim objectives and mutual duties of co-operation and fulfilment of Customer shall be defined in individual contracts. If the Customer fails to comply with these duties of performance and cooperation, xyxle shall be released from its further obligations to perform. Furthermore, xyxle is entitled to invoice the Customer for the costs incurred until then for immediate payment after having issued a warning.

3.2 Customer is obliged to use the services of xyxle properly. He is in particular obliged to:

  • to provide xyxle with the necessary information about existing technical equipment to participate in the xyxle Services or, if necessary, to enable xyxle to install technical equipment on Customer's premises;
  • to ensure the fulfilment of official requirements and to take care of the granting of official permissions, as far as these should be necessary at present or in the future for the participation in services of xyxle;
  • to notify xyxle without delay of any recognisable defects or damage (fault report) and to take all reasonable measures to enable the defects or damage and their causes to be identified or to facilitate and expedite the rectification of the fault;
  • to reimburse xyxle for any expenses incurred by xyxle for the inspection of its equipment after the submission of a fault report, if and to the extent that it becomes apparent after the inspection that Customer caused the fault intentionally or by gross negligence or that the fault was within Customer's sphere of responsibility and Customer failed to recognise this due to gross negligence;

notify xyxle within one month of any of the following circumstances:

  • any change in the person of the Customer caused by succession,
  • in the case of legal communities, the addition or withdrawal of persons,
  • any change in the Customer's name or designation under which it is recorded in xyxle's business records,
  • any other factual or legal circumstance which has a significant influence on the contract with xyxle.

3.3 In the event of a breach of clause 3.1, xyxle is entitled to terminate the contractual relationship without notice after unsuccessful warning.

3.4 Customer agrees to use xyxle's services exclusively in accordance with the terms of use. These are available on the internet under the following link under "legal conditions".

4. Responsibility for web content / transmission or retrieval of data:

4.1 The customer is liable for his own use of the services as well as for his own content. He is in particular obliged:

  • not to provide or offer information with illegal or immoral content.
  • to comply with the applicable laws against the dissemination of illegal or immoral content as well as content harmful to minors and to ensure, among other things, by careful handling of passwords and the use of suitable measures that content which is likely to endanger children or minors morally or to impair their well-being does not come to the knowledge of persons protected by these laws;
  • not to infringe the national and international copyrights and other intellectual property rights of third parties;
  • not to use the services to harm or harass third parties, in particular by unauthorised intrusion into other people's systems (hacking), spreading viruses of any kind or by sending unsolicited e-mail (spamming, junk mail);
  • to ensure that its data used on xyxle's server is not subject to errors.

4.2 If the customer violates clause 4.1 or if it is disputed whether the content of the data supplied by the customer violates applicable law, xyxle shall be entitled to block such data until the legal situation has been determined by a court or until the customer has provided evidence that the data has been restored to its contractual condition. Furthermore, xyxle is entitled to terminate the contractual relationship without notice after unsuccessful warning.

4.3 Details of the interaction between the users may be regulated by xyxle within the framework of user rules. Violations of essential provisions of these user rules entitle xyxle to terminate the contractual relationship without notice after unsuccessful warning.

5. use by third party customers:

5.1 Direct or indirect use of the services of the xyxle network by third parties is permitted, unless xyxle prohibits this in writing. Customer is therefore entitled to provide or make available to third parties passwords for the use of the services or to enable the use in any other way.

5.2 If the use is managed by third parties, Customer shall duly instruct such third parties in the use of the xyxle Services and Customer shall oblige such third parties to comply with the provisions set out in clause 4 of these GTC. Furthermore, Customer shall be responsible for any fault of the third party or such fault shall be attributed to Customer. If the use by third parties is not permitted, this shall not give rise to any claim for reduction, reimbursement or damages.

5.3 Customer shall also pay any charges incurred by third parties through authorised or unauthorised use of the services of the xyxle network within the scope of the access and use facilities made available to Customer. Customer shall be liable to xyxle for all violations of the provisions of these GTC and the underlying Customer Agreement resulting from any use of the Services by authorised and unauthorised third parties.

5.4 In any case Customer shall indemnify xyxle against all claims of third parties of whatever nature.

5.5 If Customer becomes aware of any unlawful or immoral use of the xyxle Services by any third party, or if Customer becomes aware of any facts giving rise to fears of unlawful or immoral use, Customer shall immediately notify xyxle in writing so that xyxle can take the necessary measures, in particular in accordance with clause 4.2. Furthermore, in such a case Customer shall change passwords or arrange for the change.


6.1 Customer undertakes to inspect the performance or delivery of xyxle Services without undue delay and to report any defects in writing without undue delay. If no such notification is made, the service shall be deemed to have been accepted and thus to be free of defects.

6.2 To the extent that services or software to be delivered under the contract are defective and have been notified in accordance with clause 6.1, xyxle shall rectify the defect. If, in xyxle's opinion, rectification is impossible, Customer may demand rescission of the contract or reduction of the purchase price.

6.3 If xyxle sells third party products (in particular services and software) to Customer, Customer shall receive the same warranty as granted to xyxle by the manufacturer. Customer warrants that its services are of professional quality. Expenses resulting from consequential damages are not covered by warranty. Expenses which are necessary after the exchange of software are also not covered by the warranty. This includes, for example, the reinstallation of programs, creation of content, configuration of hardware and other expenses by xyxle in connection with the manufacturer's warranty service.

6.4 Warranty services are generally performed at xyxle's domicile by xyxle's qualified personnel during normal business hours. Transport costs or travel expenses, if any, shall be borne by the customer. In the event of contracts to the contrary, warranty services shall be provided in accordance with the agreements.

Failures resulting from inadequate personnel training (violation of xyxle's or the manufacturer's guidelines) as well as malfunctions or failures of the power supply are not covered by warranty.

7. rights of use of software and product or service names as well as "Managed Services:

7.1 Unless expressly agreed otherwise, the rights of use of software and product or service names with respect to the services managed by xyxle are agreed as follows: Customer shall be granted a non-exclusive, perpetual and non-transferable right to use software and service marks for its own internal use. Supplementary regulations on the use of software are hereby included. The software may be made available to third parties. For standard products of third parties, their licence conditions shall apply insofar as they contain further restrictions. The source code shall only be handed over if this has been expressly agreed.

7.2 If, in derogation of Clause 7.1, it is agreed that the right to use software may be transferred to third parties, all copies must bear the original copyright notice and all other protective notices.

7.3 If in connection with the respective subject matter of the contract (software development or execution of other projects) claims are asserted due to the infringement of a licence, a patent or any other intellectual property right, Customer shall immediately notify xyxle in writing. Customer shall not take any legal action without xyxle's prior consent and shall leave the defence against such claims, in particular the conduct of litigation including the conclusion of a settlement, to xyxle upon request.

7.4 If the use of the subject matter of the contract or parts thereof is prohibited by a court decision or if, in the opinion of xyxle, a claim for infringement of proprietary rights is imminent, xyxle shall have the right to choose between the following measures:

  • to modify the subject matter of the contract in such a way that it no longer infringes any property rights,
  • to procure the right for the customer to continue to use the subject matter of the contract,
  • replace the subject matter of the contract by another subject matter of the contract which does not infringe any proprietary rights and which either meets the Customer's requirements or is equivalent to the replaced subject matter of the contract
  • to take back the subject matter of the contract and to refund to the customer the remuneration paid less a reasonable amount for the use and the loss in value.

7.5 The above obligation shall not apply to such Contractual Objects where the infringement of the IPR is based on a concept originating from Customer or on the fact that the Contractual Object has been modified by Customer or operated together with Contractual Objects not supplied by xyxle.

8. Delivery times:

8.1 As a matter of principle, delivery times shall be deemed to be non-binding. Delivery dates shall only be deemed binding if they have been expressly confirmed as "binding" in writing by xyxle. Customer shall be notified in writing of any delays in delivery. Customer shall not be entitled to withdraw from the purchase due to delay in delivery and waives all claims for damages against xyxle. Delivery and installation costs shall be borne by Customer.

8.2 Benefit and risk shall pass to Customer as soon as the data has been handed over or can be viewed on the servers.

8.3 xyxle shall be entitled to make partial deliveries at any time.

9.Prices, remuneration, terms of payment:

9.1 Unless otherwise expressly agreed, all agreed remunerations are exclusive of value added tax and any other customs or excise duties in Swiss francs (CHF).

9.2 For orders of products which xyxle does not carry in its product range, xyxle may request an appropriate down payment. In general, invoicing of services and software is effected upon delivery and is due for payment from that point in time.

9.3 For the realisation of customer orders of CHF 5000.- or more the following payment conditions apply (or according to the order confirmation): 50% of the services at the time of order placement, the remaining amount will be invoiced in instalments after completion of the work or pro rata at the end of each month.

9.4 Each invoice amount is due without deductions ten (10) calendar days after the invoice date. Any ambiguities must be clarified and any objections raised in writing within this period. If no objections are raised within the aforementioned period, the invoice shall be deemed accepted. If the customer claims that connection charges invoiced to him have not been caused by him or by third parties for which he is responsible, he must prove this.

9.5 Unless otherwise agreed, xyxle's services shall be billed as follows: Monthly, semi-annually or annually in advance; or in case of retroactive invoices (e.g. usage-based) monthly in arrears.

9.6 The prices for the xyxle Services are set out in the current price list. Price changes will be communicated to the Customer in due time. xyxle may make reasonable price changes during the term of the contract if significant cost factors have changed. The same right exists in each case for the future in case of an unusual or special cost causing extent of the use of the services by the customer. Further details are regulated in the customer contract.

10. default:

10.1 In the event of Customer's default in payment, xyxle shall be entitled to suspend or block its services. In this case the Customer remains obliged to pay the periodically due fees.

10.2 In case of default of payment xyxle is furthermore entitled to charge default interest in the amount of 5%, provided that the usual Swiss bank discount rate does not exceed this amount; if it exceeds this amount, this higher default interest rate is owed.

10.3 If Customer is in default of payment of the fees or of a not insignificant part of the fees for two consecutive months or in a period of more than three months is in default of payment of the fees in an amount equal to the monthly fee for three months, xyxle may terminate the contractual relationship without notice.

10.4 xyxle reserves the right to assert further claims due to default of payment. This shall apply in particular to the costs incurred by xyxle for the collection of the claims in the dunning procedure.

10.5 Delays in delivery and performance due to force majeure and due to events which make performance substantially more difficult or impossible for xyxle. Such events include, but are not limited to, strikes, lock-outs, official orders, failure of communication networks and gateways of other operators, even if such events occur at xyxle's suppliers or subcontractors or at their sub-suppliers, subcontractors or at the operators of sub-node computers authorised by xyxle, shall entitle xyxle to postpone the delivery or service for the duration of the event plus a reasonable start-up time. If such events last uninterruptedly for more than two weeks, either party shall be entitled to terminate the contract without notice.

11. provision of security:

11.1 In the event that Customer is repeatedly in default of payment for more than 60 days, xyxle shall be entitled to demand security (bank guarantee, surety, etc.) from Customer in the amount of the invoice amounts of the last two months prior to the occurrence of the repeated default or, at xyxle's reasonable discretion, measured by the average of the expected turnover.

11.2 xyxle may also demand the provision of security if justified by other exceptional circumstances. Customer undertakes to immediately order the security requested by xyxle if and when xyxle claims such security.

12. termination of the contract:

12.1 In the absence of a specific agreement, the contractual relationship for contracts without a minimum term may be terminated by either party with a notice period of three (3) months to the end of a month. In the case of contracts with a minimum term, this notice period shall apply after expiry of the minimum term.

12.2 Upon termination of the contractual relationship, the items and documents provided to Customer and owned by xyxle shall be returned to xyxle at Customer's risk and expense without undue delay, but no later than 14 calendar days after termination of the contract. If Customer fails to comply with this return obligation, Customer shall be obliged to pay damages in the amount of the replacement value of the items, unless a higher or lower damage is proven.

12.3 xyxle may terminate the Customer Contract without notice if insolvency or composition proceedings or similar proceedings have been instituted against Customer's assets, or an application for the institution of insolvency proceedings has been filed. In this case clause 12.2 shall apply accordingly. Customer shall immediately inform xyxle of the existence of such circumstances.

12.4 In the event of premature termination of the contract for a reason for which Customer is responsible, xyxle shall be entitled to claim damages in the amount of the remuneration which would have accrued for the remaining term of the contract. xyxle reserves the right to assert further claims.

12.5 Any termination must be in writing to be effective.

13. right of set-off and retention, assignment, transfer:

13.1 Customer shall only be entitled to set-off against claims of xyxle if such claims are undisputed or have become res judicata. Apart from that, Customer shall have no right of set-off. Customer shall only be entitled to assert a right of retention due to counterclaims arising from the same contract.

13.2 All rights and obligations determined within the framework of the customer contract are not transferable and cannot be assigned to third parties. Any transfer shall require the written consent of the other party.

14. exclusion and limitation of liability:

14.1 xyxle shall not be liable for any direct or indirect, consequential or incidental damages arising out of the use or inability to use the services provided by xyxle.

14.2 xyxle shall in particular not be liable in the following cases:

  • Direct or indirect consequential damages in case of malfunctions of the xyxle infrastructure, in particular of leased line malfunctions or malfunctions of other xyxle suppliers.
  • Electronic messages which are not transmitted correctly, not transmitted at all, transmitted illegally or intercepted by third parties.
  • Lack of or inadequate secrecy of encrypted data, even if xyxle acts as a certification authority or offers other cryptology services.

14.3 Liability of xyxle or its representatives or vicarious agents shall only exist in case of breach of essential contractual obligations, the fulfilment of which the other party may rely on to a particular extent (hereinafter referred to as "cardinal obligations"). This relates to liability for damages, in particular due to default, non-performance, poor performance or tort - also in connection with warranty obligations. The aforementioned exclusion does not apply to cases of intent and gross negligence or to liability due to warranted characteristics. Liability for slight negligence is excluded.

14.4 To the extent that cardinal obligations are breached in the sense set out in clause 14.3, xyxle's liability shall not exceed an amount per claim corresponding to 10% of the invoice amount - or in the case of periodic services - of an average monthly remuneration under the relevant contract. The calculation of the average shall be based on the six months preceding the event of damage or, if the term of the contract was shorter, on the expected average monthly remuneration determined by xyxle in its reasonable discretion.

14.5 Liability under the Product Liability Act remains unaffected in any case.

15. Declaration under data protection law:

Customer has been informed about the nature, extent, location and purpose of the collection, processing and use of personal data required for the performance of services. Accordingly, the data protection policy of xyxle pursuant to clause 16 shall apply. xyxle shall transfer the collected data to companies affiliated with xyxle, including foreign companies, if this is necessary for the purpose of fulfilling the contract. Customer consents to the processing and use of Customer's data, which was collected for the purpose of structuring and amending the contractual relationship with xyxle, for the purpose of advising Customer also on innovations in the product and service area, for advertising and market research or for the design of services in line with requirements by xyxle, its affiliated companies and third parties. The Customer may optionally restrict this consent. For this purpose, corresponding options are available to him on the xyxle homepage under conditions.

16. data protection policy:

16.1 xyxle constantly endeavours to use the data of its customers of which it becomes aware lawfully within the framework of the legal provisions. Therefore, we are constantly striving to comply with national and international data protection regulations. Accordingly, we would like to inform you about the processing of your data within the framework of data protection law. Processing is defined in Article 3 of the Data Protection Act as any handling of personal data, regardless of the means and procedures used.

16.2 Data collection: xyxle or the user collects personal customer data during registration or order entry. This is done either independently by the customer or in the context of a contract initiation in direct contact between the customer and a customer consultant of xyxle. In addition to the personal data, depending on the service, various data about the Customer's technical infrastructure are collected; e.g. serial numbers of hardware, licences of software, network environment, access data, installation routines, IP addresses, etc.. This data collection takes place exclusively for the purpose of comprehensive customer support and after approval by the customer. The data collected by xyxle will be used for the purpose of fulfilling the contract.

16.3 Transmission to third parties: As xyxle sometimes cooperates with other companies in the performance of the contract (leasing of lines, ordering of hardware, software, licences, domains, etc.), it may be necessary to send the necessary Customer data to such companies in the course of the performance of the contract. In this case, only the data necessary for the fulfilment of the contract will be transmitted to these contractual partners. Transmission for marketing purposes by third parties expressly does not take place. xyxle protects your data in accordance with the legal requirements (Art. 7 DSG). Accordingly, we use appropriate technical and organisational measures to protect in particular the access, transport, storage and input of data.

16.4 Information / changes about data processing: The Customer is entitled to request information about his data processed by xyxle at any time, generally free of charge (Art. 8 DSG). Customer may at any time restrict the consent to the use of data by xyxle. Should the Customer wish to do so, the Customer may notify us of this wish in writing, using the document provided for this purpose by xyxle on its website. For this purpose and for further questions or comments, please contact us by telephone, Tel. 0041 (0) 41 410 00 80.

17. Confidentiality:

17.1 Both parties undertake not to disclose to any third party any information designated as confidential, in particular the content of contracts and their annexes shall be treated as confidential.

17.2 The customer gives xyxle the right to pass on customer addresses directly to third party companies or the criminal authorities in case of illegal or immoral actions.

18. place of performance, place of jurisdiction, applicable law, others:

18.1 Place of performance is Uster. The exclusive place of jurisdiction for all claims arising from or based on the GTC or the contract as well as for all disputes arising between xyxle and the Customer shall be CH-8610 Uster.

18.2 The contractual relationship between xyxle and Customer shall be governed exclusively by Swiss law.

18.3 Any invalid provision in these GTC or in the Customer Agreement shall not affect the validity of the other provisions. In such a case a substitute provision shall be made which comes as close as possible to the economic result of the invalid provision.

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