1. Formation of Contract, Applicability of Terms:
1.1 These General Terms and Conditions (hereinafter “GTC”) govern the mutual rights and obligations of XYZ AG, Wermatswilerstr. 8, 8610 Uster, Switzerland, on the one hand, and the customer (hereinafter “Customer”) on the other. A contract for the use of XYZ’s services is concluded only upon XYZ’s acceptance of a customer contract.
1.2 If the customer’s order is placed via the ordering process on XYZ’s website or by other electronic means, this shall be considered a binding order by the customer.
1.3 These General Terms and Conditions (hereinafter “GTC”) form the basis for all contracts between the customer and XYZ. They apply to all further contracts even without explicit reference. By accessing a computer of XYZ or using the services of XYZ’s network for the first time, these GTC are deemed accepted. Any confirmations by the user or customer referring to their own business or purchase terms are hereby rejected. Agreements deviating from these terms and individual contracts, including this written form clause, must be made in writing.
1.4 Conflicting provisions in the XYZ customer contract or individual orders take precedence over these GTC.
2. Scope of services and obligations of xyxle
2.1 The scope of XYZ’s services is limited to the provision of various services in the field of data management, consisting of online software and other related services.
2.2 The obligation to perform and the scope of the individual XYZ services or individual services provided by XYZ (hereinafter also referred to as the “Services”) are determined by the service description of XYZ AG as well as the customer contract.
2.3 The Internet is a worldwide system of independent, interconnected networks and computers. XYZ has influence only over systems within its own network and therefore cannot guarantee error-free services.
2.4 XYZ is entitled to modify the services to be provided as well as these Terms and Conditions to the extent that XYZ, at its discretion, considers this reasonable for technical reasons or due to market developments, provided that this does not unreasonably impair the customer’s interests, in particular the balance of performance and consideration. Changes or publication of the Terms and Conditions take effect immediately for the customer, unless written objection is raised within 7 days. In such a case, the customer has the right to terminate the affected contract in accordance with the contractual notice period.
2.5 XYZ is responsible for the continuous availability of its infrastructure (servers, Internet connections, etc.). For maintenance purposes or in the event of unexpected system failures, XYZ may at any time and without prior notice restrict the availability of services or render them unavailable for an indefinite period.
2.6 To the extent that XYZ provides free services, these may be discontinued at any time without prior notice. No claim for reduction, reimbursement, or damages arises from this.
3. Customer Obligations
3.1 Depending on the scope of XYZ’s service, close cooperation between XYZ and the customer may be required. In such cases, interim goals and the mutual obligations of the customer to cooperate and perform will be defined in individual agreements. If the customer fails to fulfill these performance and cooperation obligations, XYZ is released from its further obligations to provide services. Furthermore, after a formal warning, XYZ may invoice the customer for the costs incurred up to that point for immediate payment.
3.2 The customer is obliged to use XYZ’s services properly. In particular, the customer shall:
- provide xyxle with the necessary information about existing technical equipment required to use xyxle services or, where necessary, allow xyxle to install technical equipment at the Customer’s premises
- ensure compliance with official requirements and obtain any required governmental or regulatory approvals, insofar as these are currently or in the future required for the use of xyxle services
- to immediately notify XYZ of any identifiable defects or damage (fault report) and, within what is reasonable, to take all measures that enable the identification of the defects or damage and their causes, or that facilitate and expedite the устранion of the malfunction.
- after submitting a fault report, to reimburse XYZ for the costs incurred as a result of inspecting its equipment, if and insofar as the inspection reveals that the customer intentionally or through gross negligence caused the fault, or that the fault lay within the customer’s area of responsibility and the customer failed to recognize this through gross negligence.
notify XYZ within one month of any of the following circumstances:
- any change in the identity of the customer resulting from legal succession
- in the case of legal partnerships or joint entities, the addition or withdrawal of persons
- any change to the customer’s name or to the designation under which the customer is listed in XYZ’s business records
- any other factual or legal circumstance that has a significant impact on the contract with XYZ.
3.3 In the event of a breach of Clause 3.1, XYZ is entitled, after an unsuccessful formal warning, to terminate the contractual relationship with immediate effect.
3.4 The customer agrees to use XYZ’s services exclusively in compliance with the terms of use. These are available on the Internet at the following link under “Legal Terms and Conditions.”
4. Responsibility for web content and data transmission
4.1 The customer is liable for its own use of the services as well as for its own content. In particular, the customer is obliged to:
- not supply or offer any information with unlawful or immoral content
- comply with the applicable laws governing the dissemination of unlawful, immoral, or harmful-to-minors content and, inter alia, ensure through careful handling of passwords and the implementation of appropriate measures that content capable of endangering the moral well-being of children or adolescents or impairing their welfare does not become accessible to persons protected by such laws
- not infringe national or international copyrights or other intellectual property or protective rights of third parties
- not use the services to harm or harass third parties, in particular not through unauthorized access to third-party systems (hacking), the distribution of viruses of any kind, or the unsolicited sending of emails (spamming, junk mail)
- ensure that the data used by the customer on XYZ’s servers is free from defects and errors.
4.2 If the customer breaches Clause 4.1, or if it is disputed whether the content of the data provided by the customer violates applicable law, XYZ is entitled to block such data until the legal situation has been determined by a court, or until proof has been provided by the customer that the contractual condition has been restored. Furthermore, XYZ is entitled to terminate the contractual relationship with immediate effect after an unsuccessful formal warning.
4.3 XYZ may regulate the details of the interaction between users within the framework of a user policy. Breaches of essential provisions of this user policy entitle XYZ to terminate the contractual relationship with immediate effect after an unsuccessful formal warning.
5. Use by third-party customers
5.1 Direct or indirect use of XYZ’s network services by third parties is permitted, unless XYZ expressly prohibits it in writing. The customer is therefore entitled to provide or make passwords accessible to third parties for using the services or otherwise enable their use.
5.2 If services are used by third parties, the customer must properly instruct them in the use of XYZ’s services and obligate such third parties to comply with the provisions set out in Clause 4 of these Terms and Conditions. Furthermore, the customer is responsible for any fault of the third party, which will be attributed to the customer. If third-party use is not permitted, this does not give rise to any claim for reduction, reimbursement, or damages.
5.3 The customer is also obliged to pay the fees arising from authorized or unauthorized use of XYZ’s network services by third parties through the access and usage options made available to them. The customer is liable to XYZ for all violations of these Terms and Conditions and the underlying customer agreement resulting from the use of the services by authorized or unauthorized third parties.
5.4 In any case, the customer must indemnify XYZ against all claims of third parties, of any kind.
5.5 If the customer becomes aware of unlawful or immoral use of XYZ’s services by third parties, or becomes aware of facts suggesting the possibility of such unlawful or immoral use, the customer must immediately notify XYZ in writing so that XYZ can take the necessary measures, in particular those under Clause 4.2. Furthermore, in such a case, the customer must change passwords or ensure that they are changed.
6. Warranty
6.1 The customer undertakes to inspect the performance or delivery of XYZ’s services immediately and to report any defects in writing without delay. If no such notification is made, the service is deemed accepted and therefore free of defects.
6.2 If services or software to be delivered under the contract are defective and have been reported in accordance with Clause 6.1, XYZ shall remedy the defect. If, in XYZ’s opinion, rectification is impossible, the customer may demand rescission of the contract or a reduction of the purchase price.
6.3 If XYZ sells third-party products (in particular services and software) to the customer, the customer receives the same warranty as XYZ is granted by the manufacturer. The customer warrants that its own services are of professional quality. Costs arising from consequential damages are not covered by the warranty. Also, costs incurred after software replacement are not covered by the warranty. This includes, for example, reinstallation of programs, creation of content, hardware configuration, and other efforts associated with the manufacturer’s warranty service carried out by XYZ.
6.4 Warranty services are generally provided at XYZ’s premises by qualified personnel during normal business hours. Transport costs or any travel expenses are borne by the customer. In the case of contracts with different terms, warranty services shall be provided according to the agreed arrangements.
6.5 Defective performance resulting from insufficient staff training (violation of XYZ’s or the manufacturer’s guidelines), as well as disturbances or failures in the power supply, are not covered by the warranty.
7. Software usage rights and product or service names, as well as “Managed Services”:
7.1 Unless expressly agreed otherwise, the usage rights for software and product or service names in relation to the services managed by XYZ are agreed as follows: The customer is granted a non-exclusive, unlimited in time, and non-transferable right to use the software and service marks for its own internal purposes. Supplementary provisions regarding software use are hereby incorporated. The software may not be made accessible to third parties. For standard third-party products, their license terms apply insofar as they impose further restrictions. Delivery of the source code occurs only if expressly agreed.
7.2 If, contrary to Clause 7.1, it is agreed that the usage right for software can be transferred to third parties, all copies must bear the original copyright notice and all other protective notices.
7.3 If claims arise in connection with the subject matter of the contract (software development or execution of other projects) due to the infringement of a license, patent, or other intellectual property rights, the customer is obliged to notify XYZ immediately in writing. The customer shall not take any legal action without prior consent from XYZ and, at XYZ’s request, shall leave the defense against such claims, including litigation and settlement, to XYZ.
7.4 If the use of the contract subject or parts thereof is prohibited by a court decision, or if XYZ believes that a claim for infringement of intellectual property rights is imminent, XYZ shall have the option to take one of the following measures:
- to modify the contract subject so that it no longer infringes any intellectual property rights
- to grant the customer the right to continue using the contract subject
- to replace the contract subject with another contract subject that does not infringe any intellectual property rights and that either meets the customer’s requirements or is equivalent to the replaced contract subject
- to take back the contract subject and refund the customer the amount paid, minus a reasonable amount for use and depreciation
7.5 The above obligation does not apply to contract subjects where the intellectual property rights infringement is based on a concept originating from the customer, or where the contract subject was modified by the customer or operated together with contract subjects not supplied by XYZ.
8. Delivery times
8.1 Delivery time indications are generally non-binding. Delivery dates are only binding if they have been expressly confirmed in writing as “binding” by XYZ. Any delivery delays will be communicated to the customer in writing. The customer is not entitled to withdraw from the purchase due to a delay in delivery and waives all claims for damages against XYZ. Delivery and installation costs are borne by the customer.
8.2 Benefits and risks transfer to the customer as soon as the data has been handed over or can be accessed on the servers.
8.3 XYZ is entitled to make partial deliveries at any time.
9. Prices, fees, and payment terms
9.1 All agreed fees are, unless expressly stated otherwise, exclusive of value-added tax and any other customs duties or consumption taxes, and are quoted in Swiss Francs (CHF).
9.2 For orders of products not carried in XYZ’s standard assortment, XYZ may require a reasonable advance payment. In general, invoicing for services and software occurs upon delivery and is due for payment from that date.
9.3 For customer orders starting from CHF 5,000, the following payment terms apply (or as stated in the order confirmation): 50% of the service fees upon order placement, with the remaining amount invoiced in installments after completion of work or proportionally at the end of the month.
9.4 Each invoice amount is due ten (10) calendar days after the invoice date without deductions. Any discrepancies must be clarified and any objections submitted in writing within this period. If no objections are raised within the aforementioned period, the invoice is deemed accepted. If the customer claims that billed connection fees were not incurred by them or by third parties for whom they are responsible, the customer must provide proof.
9.5 Unless otherwise agreed, XYZ’s services are invoiced as follows: monthly, semi-annually, or annually in advance; or, in the case of retroactive billing (e.g., usage-based), monthly in arrears.
9.6 Prices for XYZ services are determined by the current price list. Price changes will be communicated to the customer in advance. XYZ may adjust prices reasonably during the term of the contract if significant cost factors change. The same right applies for future cases of unusual or exceptional usage of the services by the customer. Further details are governed by the customer contract.
10. Default / delay in payment
10.1 In the event of the customer’s default in payment, XYZ is entitled to suspend or block its services. In this case, the customer remains obliged to pay the regularly due fees.
10.2 In case of default, XYZ is also entitled to charge default interest at a rate of 5%, provided that the usual Swiss bank discount rate does not exceed this amount; if it exceeds this rate, the higher default interest is payable.
10.3 If the customer defaults on payment of fees or a significant portion thereof for two consecutive months, or over a period of more than three months with an amount reaching the monthly fee for three months, XYZ may terminate the contractual relationship with immediate effect.
10.4 The assertion of further claims due to default in payment remains reserved for XYZ. This applies in particular to costs incurred by XYZ in collecting claims through dunning procedures.
10.5 Delivery and performance delays caused by force majeure or events that significantly hinder or make performance impossible for XYZ—including, in particular, strikes, lockouts, governmental orders, failure of communication networks or gateways of other operators, even if occurring at suppliers or subcontractors of XYZ or their subcontractors, or at sub-node operators authorized by XYZ—entitle XYZ to postpone delivery or performance for the duration of the event, plus a reasonable start-up period. If such events continue uninterrupted for more than two weeks, either party is entitled to terminate the contract with immediate effect.
11. Security deposit
11.1 In the event that the customer repeatedly defaults on payment for more than 60 days, XYZ is entitled to request a security (e.g., bank guarantee, surety, etc.) from the customer in the amount of the invoices for the last two months prior to the occurrence of the repeated default, or, at XYZ’s reasonable discretion, based on the average of the expected revenue.
11.2 XYZ may also require the provision of a security if other extraordinary circumstances justify it. The customer undertakes to immediately provide the security requested by XYZ if XYZ demands such a security.
12. Termination of the Contract
12.1 Unless otherwise specifically agreed, for contracts without a minimum term, the contractual relationship may be terminated by either party with three (3) months’ notice to the end of a month. For contracts with a minimum term, this notice period applies after the expiration of the minimum term.
12.2 Upon termination of the contractual relationship, items and documents provided to the customer that are owned by XYZ must be returned immediately, but no later than 14 calendar days after the termination of the contract, at the customer’s risk and expense. If the customer fails to comply with this return obligation, they are liable to pay damages equal to the replacement value of the items, unless a higher or lower damage can be proven.
12.3 XYZ may terminate the customer contract without notice if insolvency, estate proceedings, or comparable proceedings are opened over the customer’s assets, or if an application for the opening of insolvency proceedings has been filed. In such cases, Clause 12.2 applies accordingly. The customer is obliged to inform XYZ immediately of the occurrence of such circumstances.
12.4 In the event of early termination of the contract for a reason attributable to the customer, XYZ is entitled to claim damages in the amount of the fees that would have been incurred for the remaining term of the contract. Further claims remain reserved.
12.5 Any termination must be made in writing to be effective.
13. Right of set-0ff and retention, assignment, transfer
13.1 The customer may only set off claims against XYZ with undisputed or legally established claims. Otherwise, the customer has no right of set-off. The customer is only entitled to assert a right of retention with respect to counterclaims arising from the same contract.
13.2 All rights and obligations specified under the customer contract are non-transferable and may not be assigned to third parties. Any transfer requires the written consent of the other party.
14. Disclaimer and limitation of liability
14.1 XYZ shall not be liable for direct or indirect, consequential, or immediate damages arising from the use of, or due to deficiencies in, the services provided or delivered by XYZ.
14.2 In particular, XYZ shall not be liable in the following cases:
- Direct or indirect consequential damages resulting from malfunctions of XYZ’s infrastructure, including leased line disruptions or malfunctions of other XYZ suppliers.
- Electronic messages that are incorrectly transmitted, not transmitted at all, transmitted unlawfully, or intercepted by third parties.
- Failure or inadequate confidentiality of encrypted data, even if XYZ acts as a certification authority or provides other cryptology services.
14.3 Liability of XYZ or its representatives or vicarious agents exists only in cases of breach of essential contractual obligations on which the other party may particularly rely (“cardinal obligations”). This includes liability for damages, in particular due to delay, non-performance, defective performance, or tort—including in connection with warranty obligations. The above exclusion does not apply to cases of intent or gross negligence, or liability for guaranteed characteristics. Liability for slight negligence is excluded.
14.4 To the extent cardinal obligations in the sense of Clause 14.3 are breached, XYZ’s liability is limited to an amount per claim corresponding to 10% of the invoice amount—or, in the case of periodic services, the average monthly fee under the relevant contract. For the average calculation, the six months preceding the claim or, if the contract duration was shorter, the expected average monthly fees reasonably determined by XYZ shall be used.
14.5 Liability under the Product Liability Act remains unaffected in all cases.
15. Data protection statement
The customer has been informed about the type, scope, location, and purpose of the collection, processing, and use of personal data necessary for the provision of services. Accordingly, XYZ’s data protection policy applies as set out in Clause 16.XYZ transmits the collected data to affiliated companies, including foreign entities, insofar as this is necessary for the fulfillment of the contract. The customer agrees that their data, collected for the purpose of establishing and modifying the contractual relationship with XYZ, may also be processed and used for the purpose of advising the customer on product and service updates, for advertising and market research, or for the needs-based design of services by XYZ, its affiliated companies, and third parties.The customer may optionally restrict this consent. Corresponding options are available on XYZ’s website under the applicable conditions.
16. Data protection statement
16.1 XYZ is continuously committed to using the customer data it receives in compliance with legal provisions. Accordingly, we make every effort to observe both national and international regulations regarding data protection. We would therefore like to inform you about the processing of your data under the applicable data protection conditions. According to Art. 3 of the Swiss Data Protection Act (DSG), “processing” is defined as any handling of personal data, regardless of the methods and procedures used.
16.2 Data Collection: XYZ or the user collects personal customer data during registration or when placing an order. This may be done independently by the customer or during contract initiation in direct contact between the customer and an XYZ customer advisor. In addition to personal data, depending on the service, various data about the customer’s technical infrastructure may be collected; e.g., hardware serial numbers, software licenses, network environment, access data, installation routines, IP addresses, etc. This data collection is carried out solely for the purpose of comprehensive customer support and with the customer’s consent. The data collected by XYZ is used to fulfill the contract.
16.3 Transmission to Third Parties: Since XYZ partly collaborates with other companies to fulfill contracts (e.g., leasing lines, ordering hardware, software, licenses, domains, etc.), it may be necessary to send the required customer data to such companies in the context of contract fulfillment. In this case, only the data necessary for contract fulfillment is transmitted to these contractual partners. Data will not be transmitted to third parties for marketing purposes. XYZ protects your data in accordance with legal requirements (Art. 7 DSG). Accordingly, we employ appropriate technical and organizational measures to ensure the security of access, transport, storage, and entry of data.
16.4 Information / Changes Regarding Data Processing: The customer is entitled at any time, generally free of charge, to request information about the data processed by XYZ (Art. 8 DSG). The customer may at any time restrict consent for the use of their data by XYZ. If the customer wishes to do so, they can communicate this in writing, using the document provided on XYZ’s website. For this and for further questions or comments, please contact us by phone at +41 (0) 41 410 00 80.
17. Confidentiality
17.1 Both parties undertake not to disclose information designated as confidential to any third party. In particular, the content of contracts and their appendices must be treated as confidential.
17.2 The customer grants XYZ the right to provide customer addresses directly to third-party companies or law enforcement authorities in the event of unlawful or immoral actions.
18. Place of performance, jurisdiction, applicable law, miscellaneous
18.1 The place of performance is Uster. The exclusive place of jurisdiction for all claims arising from or in connection with these Terms and Conditions or the contract, as well as for any disputes between XYZ and the customer, is CH-8610 Uster.
18.2 The contractual relationships between XYZ and the customer are exclusively governed by Swiss law.
18.3 An invalid provision in these Terms and Conditions or in the customer contract does not affect the validity of the other provisions. In such a case, a replacement provision shall be agreed upon that comes as close as possible to the economic intent of the invalid provision.
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