Netstream AG (hereinafter referred to as Netstream) was founded in 1998, today employs around 50 people and operates its own data center in Switzerland. Netstream proves the quality of its products and services every day. These general terms and conditions (hereinafter referred to as GTC) apply to all products and services from Netstream, regardless of whether they are free or chargeable.

1. subject matter of the contract

1.1 Customers who purchase Netstream services (“Customer”) are legal and natural persons who purchase services from Netstream under a service agreement.

1.2 Integral parts of the service agreement are the present GTC, the Netstream data protection declaration, the current price list or offer and the Support Level Agreement (SLA) for the services of Netstream, as well as, if agreed upon, a supplementary appendix on order data processing.

1.3 If the customer also uses services of third parties via Netstream services, the customer is responsible for the compliance with the terms of use of these third party services and can be held directly liable by the third party provider in case of damage. In particular, the customer is obliged to settle directly with the third parties for the use of their services. A different written agreement with Netstream remains reserved.

2. beginning, duration and termination of the service contract

2.1 The service agreement with the customer is concluded or Netstream is only bound when Netstream has confirmed the customer’s legally binding signed application for a service agreement in writing or via e-mail. Netstream shall have the commencement of the customer’s use of the service determined. The customer acknowledges that the commencement of use of the services provided by Netstream may be delayed for organizational or technical reasons. The customer cannot derive any rights against Netstream from this.

2.2 The service contract is concluded for an indefinite period of time, unless otherwise agreed in the service contract.

2.3 The periods of notice can be found in the respective service contract or registration form. The minimum contract duration from the respective contract must be observed. If no notice period is defined, a minimum term of six months applies. Thereafter, the contracts may be terminated with a notice period of 30 days to the end of the month. By mutual agreement, the contract can also be terminated within other periods or on another date. In any case, the remaining credit balance is forfeited to Netstream and cannot be refunded in principle

2.4 For good cause, both parties may terminate the service agreement at any time with immediate effect. This applies in particular if the available services of Netstream or the third party services obtained by means of this service are obtained, used, made available or passed on to unauthorized third parties in violation of law, contract or purpose, as well as if this service agreement or the terms and conditions of use of third parties are disregarded.

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2.5 If a prepaid account is not used for incoming or outgoing calls for twelve (12) months after opening, Netstream AG reserves the right to terminate the account. Any credit balance available at this point in time will be forfeited.

3. duties of Netstream

3.1 Netstream provides the services according to the offer professionally and carefully according to the current state of the art.

3.2 The facilities and equipment made available to the customer for the use of the services remain the property of Netstream and the customer receives neither rights of disposal, nor copyright, nor other industrial property rights. Exceptions are equipment purchased by the customer from Netstream, which is also described in the service agreement. Equipment purchased from Netstream remains the property of Netstream until the purchase price has been paid in full.

3.3 Netstream supports the customer in establishing a stable state for the use of the services. If the customer makes use of support services for this purpose, which Netstream can no longer consider to be appropriate or customary in the industry, or if the costs incurred by Netstream are due to a malfunction of parts of the customer’s equipment or to the customer’s improper operation, Netstream will invoice the customer for the additional or total costs at Netstream’s current rates.

3.4 Netstream undertakes within the normal working hours of Netstream’s office to initiate or carry out measures to remedy faults and malfunctions of the Services. Normal working hours are the weekdays Monday to Friday, 08.00 – 18.00 hours, with the exception of federal and cantonal holidays at Netstream’s registered office and the period from 24.12. to 2.1. Outside office hours, the Service Level Agreement selected by the customer shall apply.

3.5 The customer is only entitled to a refund of the services invoiced by Netstream if this has been agreed in advance and in writing in an individual Service Level Agreement. For all other failures of telecommunications services, no refund of fees already paid will be made.

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3.6 Possible claims for recovery by the customer expire if a failure has not been notified in writing to Netstream within 30 days after the end of the affected calendar month and Netstream has not received a corresponding fee recovery claim. In the event of justified claims, Netstream will always offset such claims against future subscription fees in the form of a credit note.

3.7 The burden of proof regarding the unavailability lies with the customer.

4. warranty

4.1 If agreed upon, Netstream guarantees the service levels for the services according to the SLA.

4.2 The services are generally available to the customer for use 24 hours a day, 7 days a week. However, Netstream cannot guarantee that the Services will function without interruption or disruption or that its network will be absolutely protected against unauthorized access or unauthorized interception. In the event of disruptions to the purchase and use of services, the customer is only entitled to withdraw from this contract, provided that the customer informs Netstream of the disruption immediately in writing and has twice set a reasonable deadline for rectification. Announced interruptions of services, in particular as a result of maintenance work by the respective media supplier, shall not be considered as malfunctions.

4.3 The customer checks the service before using it productively. Unless otherwise provided in the service contract, the responsibility for backing up data lies with the customer. The customer shall take precautions in the event that the service is not properly provided in whole or in part, e.g. by periodic checks, fault diagnosis, alternative procedures, data backup (business recovery). The customer is aware that after termination of this contract the service will be discontinued. In particular, Netstream does not warrant that the data, content and/or information stored on Netstream’s servers will remain accessible after termination of this agreement.

4.4 Netstream declares to the best of its knowledge that the services do not violate the rights of third parties.

4.5 If a third party claims against the customer that the Service infringes any patent or copyright of such third party, Netstream will defend the customer at its own expense against such claim and will pay all costs, damages and attorneys’ fees up to the amount finally awarded by a court or included in a settlement approved by the customer, provided that the customer (i) promptly notifies Netstream of the claim in writing by registered mail; and (ii) allows Netstream to control or assist in the defense and any settlement negotiations.

4.6 If such a claim is made by a third party, or if it appears likely that such a claim will be made, then the customer agrees to allow Netstream to allow the customer to continue to use the service, or to modify or replace the service with at least functionally equivalent service. If Netstream determines that none of these alternatives are reasonably available, Netstream may discontinue the Service. Netstream will then issue a credit to the customer equal to the amount paid by the customer for the unavailable service. Clauses 4.4 to 4.6 describe Netstream’s entire obligation to the customer in respect of claims for compensation.

4.7 The warranty period for purchased devices is 24 months from receipt. The warranty is only valid and enforceable in Switzerland. During the warranty period, defective devices (manufacturing, construction and material defects) will be repaired or replaced at Netstream’s sole discretion. For the duration of the repair, there is no claim for a replacement device. There is no extended or renewed warranty period for repaired or replaced devices. If a device can no longer be repaired or replaced, an equivalent successor device will be provided to the customer, subject to Netstream’s determination of the equivalent successor device. The foregoing warranty claims are void in the event of defects resulting from: improper use and operation that does not meet the specifications of the product; improper, inadequate or improper maintenance; the use of accessories, software, etc. that have not been manufactured by the device manufacturer itself or approved by it for use with the device; unauthorized modifications to the device (including change/removal of serial numbers, additional codes, etc.); misuse, negligence, accident or loss; unauthorized or improper repair. The foregoing warranty is conclusive and supersedes any and all statutory warranty obligations. To the extent permitted by law, any liability of Netstream is excluded. In particular, Netstream is not liable for indirect damage or for damage that has not occurred to the delivered item itself (so-called consequential damage). To assert the warranty, the customer must send the defective device in its original packaging to the address specified by Netstream, together with a description of the defect. This address will be provided to the customer by Netstream upon request.

5. obligations of the customer

5.1 When ordering, registering and in further business contacts with Netstream, the customer is obliged to provide truthful information. In the case of nomadic use of Internet telephony, the customer is obligated to always enter the current location in the account settings, even during temporary use.

5.2 The customer undertakes to provide Netstream at any time with its current data, such as name and address data, and to notify Netstream of any changes without delay online, by letter or fax.

5.3 The customer undertakes to ensure that his employees also comply with the obligations arising from the service contract. This provision shall also apply to third parties called in by the customer within the scope of an order, contract for work or other contractual relationship.

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5.4 When using the Services, the Customer undertakes to comply with the relevant contractual and legal provisions, such as these GTC, the other contractual provisions and the applicable cantonal and federal laws, in particular data protection, telecommunications and copyright. In particular, the services may not be misused for the performance of criminal offences. The sending of mass mailings or advertising circulars via e-mail (spam) to recipients who have not expressly requested to receive the messages shall also be deemed to be misuse.

5.5 Netstream may take measures to prevent or remedy faults and may oblige the customer to take measures himself. Upon prior notice, the customer shall grant Netstream’s employees or third parties commissioned on behalf of Netstream access to the technical equipment provided by Netstream or to the equipment used to use Netstream’s services, as well as to other equipment necessary for the availability of Netstream’s services, to the extent that the maintenance of the quality of service requires it.

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5.6 The customer undertakes to inform Netstream immediately of any defects, malfunctions or unavailability of services or facilities that come to his attention, and in particular of any use of the services by him, his employees or third parties called in by him, or by unauthorized third parties (e.g. hackers) that is illegal or contrary to the terms of the contract.5.6

5.7 The customer undertakes to check the invoice and, in the event of discrepancies, to notify us in writing (by e-mail, fax or letter) within 30 days of the invoice date, otherwise the invoice shall be deemed accepted.

5.8 The Customer shall protect the user and access authorization(s) assigned to him or his users as well as identification and authentication security device(s) against access by unauthorized third parties and shall not pass them on to unauthorized users. As soon as the customer and/or one of its users has indications that the user and access authorization(s) have been obtained unlawfully by a third party or could be misused, the customer is obliged to inform Netstream immediately.

5.9 The customer will refrain from any attempt, himself or through unauthorized third parties, to retrieve information or data without authorization or to interfere or allow to interfere with programs operated by Netstream or to penetrate unauthorizedly into data networks of Netstream.

5.10 If a third party asserts an infringement by the data, content and/or information provided by the customer, Netstream is entitled to block the data, content and/or information completely or temporarily. In this case Netstream will request the customer to cease the infringement within a reasonable period of time or to prove the legality of the data, content and/or information. If the customer does not comply with this request, Net-stream is entitled to delete the relevant data and/or terminate the contract for good cause without notice. Claims for damages remain reserved.

6. fees

6.1 The remuneration for the services provided by Netstream is based on the present service agreement or the respective valid price list. Unless otherwise stated, these prices are inclusive of value added tax.

6.2 Netstream may adjust the fees at any time, in particular, however, in the event of changed prime costs or changed levy rates (value added tax), subject to a notice period of 30 days to the end of each month. Should the customer be significantly disadvantaged by such a change, he is entitled to terminate the contract as of the effective date of the new prices. This right of termination expires with the coming into effect of the new prices. Roaming tariffs can be changed at any time and without prior notice.

6.3 Basic fees that are independent of usage are invoiced to the customer quarterly, semi-annually or annually in advance. Partial calendar months will be invoiced pro rata. Variable and usage-dependent fees will be charged monthly. Subscriptions designated as “prepaid” will be charged in advance, whereby the reimbursement or rebooking of prepaid credit that has already been topped up is excluded in any case. The customer undertakes to pay the invoiced amount by the due date indicated on the invoice form. The bank details stated on the invoice must be used by the customer for his payment. Any expenses resulting from the payment that may be charged to Netstream will be borne by the customer.

6.4 If the customer does not meet his payment obligation after the expiry of the payment period, he shall be in default without further ado and shall be obliged to pay default interest of 5%. If payment is not made even after a reminder has been issued or the reminder period has expired, Netstream is entitled to suspend all services to the customer without further notice and/or to terminate the contract without notice in accordance with section 2.4. Netstream has the right to charge an additional fee of CHF 50.

for the suspension of the service.

6.5 The use-independent fees such as basic fees are also owed for blocked services. Netstream may at any time request the customer to provide security (deposit) if there is reasonable doubt as to the customer’s compliance with the contractual payment terms.

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6.6 Upon request, the customer may request the calculation basis for the invoice in writing. Netstream provides the customer with the calculation bases, provided that these can be compiled with reasonable technical expenditure. If the fee calculation is correct, the customer shall pay Netstream for the work involved in preparing the calculation bases according to Netstream’s agreed hourly rates.

7. adhesion

7.1 Netstream undertakes to provide the services in a professional and diligent manner in accordance with the service agreement signed by the customer and the valid and current GTC.

7.2 To the extent permitted by law, Netstream excludes all liability for direct and indirect damages as well as consequential harm caused by a defect, both for itself and for auxiliary persons employed by it for the performance of the contract.

7.3 Netstream is not responsible for content created by third parties or retrievable from third parties. Netstream cannot provide any assurance for such content, nor can it assume any liability or guarantee for its correctness, completeness, up-to-dateness, legality or expediency, availability and timely delivery.

7.4 It is the responsibility of the customer to protect the IT systems and equipment in his possession, which are used for the Netstream services, as well as the data used for this purpose or accessible via the Netstream services, including program data, from unauthorized access, viruses, attacks of any kind and manipulation.

7.5 The customer may be held responsible or liable for all damages incurred by Netstream or third parties as a result of his use of Netstream services.

<7.6 The customer is solely and fully liable for the consequences of emergency calls that are forwarded to the wrong emergency call center due to incorrect location information.

7.7 If Netstream is unable to meet its contractual obligations due to force majeure, such as natural events of particular intensity, strike, riot, war, third party default, unforeseen governmental requirements, etc., performance of the contract shall be postponed for as long as the force majeure event continues. Any liability of Netstream is excluded in these cases.

8. data security and data protection

8.1 Netstream undertakes to comply with the applicable data protection laws when processing personal data. Netstream’s Privacy Policy is an integral part of the Service Agreement.

<8.2 If agreed, a supplementary appendix on commissioned data processing shall also apply.

9. final provisions

9.1 Changes or additions to the service contract must be made in writing, the reference to the provision to be changed and the legally valid signature of the contracting parties.

9.2 In case of contradictions between different language versions of the individual contractual documents, only the German language version shall be authoritative. Netstream reserves the right to provide the customer with the service sheets only in the German language version as the authoritative version.

9.3 Should any provision of the contract concluded with the customer become void or legally ineffective, the remaining provisions shall continue to apply. In this case, the void or legally ineffective provisions shall be replaced by an effective provision which comes as close as legally possible in its economic effect to that of the ineffective provision.

9.4 Netstream reserves the right to change these terms and conditions at any time. The customer will be notified of any changes in writing or via the Internet at www.netstream.ch and these changes will replace the previous GTC. Should the customer be significantly disadvantaged by the changes in the terms and conditions, he is entitled to terminate the contract to the next possible termination date while retaining the previous terms and conditions. The right of termination expires with the coming into effect of the change.

9.5 Applicable law and place of jurisdiction: The service contract is subject to Swiss law. The place of jurisdiction shall be the registered office of Netstream at the time of commencement of legal proceedings. Mandatory places of jurisdiction remain reserved.

Status from: January 1, 2019