Netstream Blue RGB

General Terms and Conditions (GTC)

Status: July 1, 2022

Preamble

These General Terms and Conditions (hereinafter referred to as the "GTC") govern the rights and obligations of Swiss Netstream AG (hereinafter referred to as "Netstream") and its customers (hereinafter collectively referred to as the "Customers" and collectively referred to as the "Parties"), unless and to the extent that expressly agreed otherwise. The validity of any customer GTC is expressly excluded.

The privacy policy of Netstream AG informs about the processing of personal data and about the rights of persons about whom data is processed.

1. subject matter and components of the contract

The subject of these GTC is the provision of various services by Netstream to customers (hereinafter jointly the "Services")...:

 The individual services to be provided in each case are agreed individually with individual customers in a service contract.

Contractual components are in particular the respective service contract as well as these GTC. The service contract takes precedence over the provisions of these GTC.

2. offer and conclusion of contract

Standard packages with the respective scope of services listed can be ordered and purchased via Netstream's online store. The standard packages offered online are considered offers. The service contract is concluded with the order under acceptance of these GTC.

In the case of individually negotiated contracts, the delivery of the respective service contract to individual customers shall be deemed to be an offer. Other documents issued in the course of contract negotiations, such as offers or documentation, are not legally considered offers and are not binding, unless Netstream has assured this in writing. The contract comes into effect with the signing of a service contract or the booking via Netstream's online store by both parties. The delivery of the signed service contract in digital form (e.g. as PDF with scanned signatures) by e-mail is also considered as signing. Unless otherwise indicated in the delivered service contract, Netstream shall remain bound to an offer for 30 days.

3. obligations of the contracting parties

3.1 Obligations of Netstream

Netstream shall provide the services within the scope agreed upon individually in each case and with due diligence.

Netstream informs about any service disruptions on the "Status" website at
"status.netstream.ch". The customer can make settings on this website so that he will be notified in case of service disruptions.

3.2 Obligations of the customers

The customers are responsible for the provision and maintenance of the terminal equipment required for the use of the services as well as for the data line for accessing the services (for example hardware and operating system, network devices, rental or internet connections, etc.). The customers shall ensure that the configuration and the technical status comply with any specifications of Netstream.

Customers are obligated to protect their infrastructure from access by unauthorized third parties and to keep it up to date with the latest technology.

In case of serious violations of the customer's obligations to cooperate or in case of unlawful use of the services by the customer as well as in case of a reasonable suspicion to that effect, Netstream is entitled to block the customer's access to the services temporarily or permanently. A serious violation exists in particular if the violation has or may have an impact on Netstream's infrastructure. An illegal use exists, for example, if content is stored which is suspected to be or actually punishable or violates the rights of third parties.

4. scope of services and service disruptions

4.1 Scope of services and support

The scope of services is determined by the respective service agreement. If agreed, the service contract also includes the service level agreement (SLA) and the costs of the services.

Unless otherwise agreed in the Service Agreement, the Services included the following support services:

  • Helpdesk during business hours
  • Receiving and checking error messages during business hours
  • Error and fault elimination according to SLA

Business hours are the weekdays from Monday to Friday from 09.00-17.00 each day, with the exception of federal, cantonal and municipal holidays at Netstream's registered office.

Additional support services will be invoiced separately and at an hourly rate. The applicable hourly rates can be found in the applicable price list.

4.2 Performance disruptions

Customers are obliged to report functional failures, impairments or malfunctions to Netstream immediately and as accurately as possible. Netstream provides a ticket system and a support telephone number for such reports around the clock.

5. availability and maintenance

5.1 Availability

The availability is based on the SLA. Unless otherwise agreed in the SLA, availability shall be 99.9% per calendar year less the periods required for maintenance work.

The availability figures do not include the unavailability of services due to maintenance work, incorrect configuration by customers, outages caused by customers or outages that are not within the responsibility or control of Netstream, such as in particular force majeure.

5.2 Maintenance work

Scheduled maintenance usually takes place once a month. Scheduled maintenance work that affects customers' access to the cloud services and their data generally takes place once a year.

Scheduled maintenance work is generally carried out between 1.00 am and 5.00 am. If customers are affected by the maintenance work, Netstream will inform about the restrictions on the "Status" website at "status.netstream.ch" 7 days in advance, if possible.

In the event of unscheduled maintenance work, customers will also be informed on the "Status" website at "status.netstream.ch". In the case of short-term or emergency maintenance work, time windows are selected wherever possible that have the smallest possible impact on customers.

6. services from third parties

Netstream is entitled to engage third parties for the provision of the services. Netstream shall be liable for acts or omissions of subcontractors as for its own acts or omissions.

7. intellectual property rights

All intellectual property rights and other rights to the infrastructure as well as to any software required for the provision of services shall remain with Netstream, irrespective of their protectability. Customers do not acquire any rights to the software contained therein.

8. data

Customers retain sovereignty over their data. Customers themselves are responsible for securing their data. Netstream is exclusively entitled to use customer data within the scope of legal and regulatory obligations as well as for the provision of services and for the improvement of such services, in particular in aggregated or anonymized form. Furthermore, Netstream's order processing agreement applies to the processing of data by Netstream on behalf of third parties.

Customers shall ensure the data protection of persons about whom they process data. This includes, in particular, informing such persons and obtaining any necessary consents for the processing of data.

9 Warranty and liability

9.1 Warranty

Netstream guarantees the careful provision of services. However, customers' attention is drawn to the fact that restrictions or impairments cannot be excluded. The availability figures contained in these GTC or in service contracts (cf. section 5.1) are approximate values.

In case of restrictions or impairments as well as other deficiencies notified to Netstream by customers, Netstream will take the necessary measures to remedy the deficiencies within the response times defined in the SLA. However, compliance with the response times cannot be guaranteed.

Netstream does not assume any warranty for restrictions and impairments that are not within the responsibility or the sphere of influence of Netstream. This includes in particular actions of third parties, internet failures and force majeure.

Likewise, Netstream cannot assume any warranty for limitations or impairments caused by the customer. For example, in case of non-use of the hardware and software configuration recommended by Netstream, incorrect operation, unauthorized interventions in the infrastructure or in case of non-fulfillment of cooperation obligations.

9.2 Liability

Netstream shall be liable exclusively for direct property damage or financial loss arising from the performance of service contracts, provided that any damage was caused by gross negligence or intent.

Liability for slight and medium fault is excluded. Liability for auxiliary persons is also excluded, with the exception of liability for services provided by third parties in accordance with Section 7.

In all cases, liability is limited to the amount paid by an affected customer for the services in the month prior to the damage event. Liability for all other damages, in particular direct or indirect damages as well as for consequential damages is excluded.

Liability is also excluded in the following cases:

  • Damages beyond the responsibility or control of Netstreams (for example, technical circumstances beyond Netstream's control, force majeure and the like).
  • Non-compliance with availability key figures
  • Non-compliance with response times according to SLA
  • Data loss
  • Third party actions
  • Damage due to access by unauthorized third parties, which is made possible by actions or omissions of the customers
  • Actions of customers
  • Damage that could have been avoided through the customer's duty to mitigate damage
  • Unavailability due to maintenance

10. remuneration and terms of payment

The remuneration to be paid by individual customers is based on the agreements in the respective service contract or on Netstream's current price lists, if the service contract refers to them.

Netstream is entitled to unilaterally adjust the price lists at any time. Price changes will be brought to the customer's attention in an appropriate form.

Customers who do not agree with an adjustment of the price lists are free to terminate the service contract with extraordinary effect as of the date of the price adjustment.

Invoices are to be paid by customers within 30 days from the date of invoice. After expiry of this payment period, the customer shall automatically be in default without further action and in particular without a reminder. After expiry of the payment period, interest on arrears of 5.0 % per annum is owed.

11. exclusion of set-off and assignment of claims

Customers are not entitled to set off any claims of their own against claims of Netstream. Netstream shall be entitled to set off any claims of its own against claims of customers.

Netstream is entitled to assign its claims against customers to third parties or to commission third parties with collection and enforcement.

12. contract term and termination

12.1 General

Unless otherwise agreed in the respective service contract, service contracts are concluded for an indefinite period and may be terminated with 30 days' notice at the end of a month. Minimum terms agreed in the individual service contract remain reserved.

All contracts can be terminated in writing or by e-mail.

12.2 Extraordinary termination

In the event of good cause, the contract may be terminated at any time without notice. Good cause shall be deemed to exist in particular if customers are in default of their payment obligations.

If no data is stored by a customer for more than three months, Netstream is entitled to extraordinary termination.

13. final provisions

13.1 Severability clause

Should any provision of these GTC prove to be unenforceable, invalid or ineffective, the enforceability, validity and effectiveness of the remaining provisions shall not be affected thereby.

In this case, the parties undertake to replace the unfulfillable, invalid or ineffective provision with a fulfillable, valid or effective provision that comes closest in terms of content and economy to the original intention of the parties.

13.2 Force majeure

The parties shall be released from their obligations towards the other party if, as long as and to the extent that the non-performance of services is due to the occurrence of circumstances of force majeure such as, for example, war, strike, storm and other natural disasters, epidemics and pandemics as well as other circumstances for which the parties are not responsible. Each party is obliged to notify the other party immediately upon the occurrence of such a case of force majeure.

13.3 Place of jurisdiction and applicable law

The contractual relations between the parties shall be governed by Swiss law, excluding the Vienna Sales Convention (CISG) and excluding the conflict of laws rules.

The exclusive place of jurisdiction is at the registered office of Netstream.

 

 

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