General Terms and Conditions

Preamble

These General Terms and Conditions (hereinafter the “GTC”) govern the rights and obligations of the Swiss company Netstream AG and of Netstream Cloud AG (hereinafter “Netstream”) and of their customers (hereinafter uniformly the “Customers” and together the “Parties”), unless and to the extent that expressly deviating agreements are made. The application of any general terms and conditions of the Customers is expressly excluded.

Netstream’s Privacy Policy provides information on the processing of personal data and on the rights of the persons whose data is processed.

1. Subject Matter and Contractual Components

The subject matter of these GTC is the provision of various services by Netstream to Customers (hereinafter collectively the “Services”).

The individual services to be provided in each case are agreed individually with the Customers – for standard services, as a rule, by order or a confirmed quotation, and otherwise by a service agreement. The respective agreement, together with these GTC, constitutes the contract.

The contractual components are in particular the respective service agreement or the respective order or confirmed quotation, these GTC, the technical and organisational measures (TOMs), the list of sub-processors and – where applicable – Netstream’s Data Processing Agreement. The individual agreement (service agreement or order or confirmed quotation) takes precedence over the provisions of these GTC. In the event of conflicts, the provisions of these GTC take precedence over the Data Processing Agreement; this is without prejudice to provisions of these GTC that expressly refer to the Data Processing Agreement.

These GTC apply to all services provided by Netstream AG and Netstream Cloud AG. The specific contracting party is determined in the respective contract, offer or order confirmation.

Netstream is entitled to amend these GTC. Amendments are communicated to the Customers in an appropriate form (for example by email or via Netstream’s website). If an amendment results in an actual material disadvantage for the Customer, the Customer may object to it within 30 days of notification. Following an objection, Netstream shall endeavour to find an amicable solution. If no amicable solution is reached, the previous version continues to apply to the Customer concerned; Netstream remains free to terminate the service agreement concerned with ordinary notice.

If no objection is raised or if the amendment does not entail a material disadvantage, the amended version is deemed accepted as of its entry into force.

2. Offer and Conclusion of Contract

Standard packages with the scope of services listed in each case can be ordered and purchased via Netstream’s online shop. The standard packages offered online constitute offers. The service agreement is concluded upon placing the order with acceptance of these GTC.

In the case of individually negotiated contracts, the delivery of the respective service agreement to individual Customers constitutes the offer. Other documents provided in the course of contract negotiations, such as quotations or documentation, do not legally constitute offers and are not binding unless Netstream has confirmed this in writing. Irrespective of the distribution channel, the contract is concluded with acceptance of these GTC, in particular by placing an order directly via Netstream’s online shop, by placing an order by email or by signing or confirming an offer. Both handwritten (physical) signatures and electronic or digital signatures are permissible for signing contracts. The delivery by email of the signed service agreement in digital form (for example as a PDF with a scanned signature or by means of an electronic signature) is likewise deemed a signature. Unless otherwise stated in the service agreement delivered, Netstream remains bound by an offer for 30 days.

3. Obligations of the Contracting Parties

3.1 Obligations of Netstream

Netstream provides the Services within the scope agreed individually in each case and with the requisite care.

Netstream provides information on any service disruptions on the “Status” website at “status.netstream.ch”. On this website, the Customer can configure settings so as to be notified in the event of service disruptions.

3.2 Obligations of the Customers

The Customers are responsible for providing and maintaining the end devices required to use the Services and the data line for accessing the Services (for example hardware and operating system, network devices, leased lines or internet connections, etc.). The Customers ensure that the configuration and technical status comply with any specifications issued by Netstream.

The Customers are obliged to protect their infrastructure against access by unauthorised third parties and to keep it in line with the current state of the art.

The Customers are obliged to keep their contact persons and contact addresses up to date at all times. Communications from Netstream to the contact details last notified are deemed to have been delivered.

The Customers are obliged to comply with Netstream’s guidelines, instructions and terms of use applicable from time to time. In their respective current version, these form a binding part of these GTC. Netstream is entitled to amend such guidelines; the version published at the time of use is authoritative.

In particular, the Customers undertake to comply with Netstream’s Acceptable Use Policy (AUP) in its respective current version. A breach of the AUP constitutes a serious breach of the duties to cooperate and entitles Netstream to take the measures provided for below.

Where a Customer makes the Services available in whole or in part to its own end customers (e.g. as a partner or managed service provider), it is obliged to impose on these end customers the terms of use and the Acceptable Use Policy (AUP) applicable from time to time in at least an equivalent manner, and remains responsible to Netstream for their compliance.

Netstream provides support exclusively to its direct contracting party; the direct handling of support or other requests vis-à-vis the Customer’s end customers is excluded.

In the event of serious breaches of the Customers’ duties to cooperate or of unlawful use of the Services by the Customers, as well as in the event of a justified suspicion to that effect, Netstream is entitled to block the Customers’ access to the Services temporarily or permanently. A serious breach exists in particular where the breach has or may have an impact on Netstream’s infrastructure. Unlawful use exists, for example, in the case of the storage of content that is presumably or actually punishable by law or that infringes the rights of third parties.

4. Scope of Services, Support and Service Disruptions

4.1 Scope of Services

The scope of services is determined by Netstream’s respective product description and by any service agreement. Netstream is entitled to amend the scope of services and the product descriptions, provided that the essential functions of the Service are not significantly impaired as a result; the version published at the time of use is authoritative. Any service agreement also includes, where agreed, the Service Level Agreement (SLA) and the costs of the Services.

4.2 Support

Unless otherwise agreed in the service agreement, the Services include the following support services:

• Helpdesk during business hours
• Receipt and examination of error reports during business hours
• Rectification of errors and faults in accordance with the SLA

Business hours are weekdays from Monday to Friday, 09:00–12:00 and 13:00–17:00, with the exception of the Swiss National Day and the cantonal and municipal public holidays at Netstream’s registered office.

Additional support services are invoiced separately at hourly rates. The applicable hourly rates are set out in the price list applicable from time to time.

Depending on the helpdesk package chosen, a corresponding monthly support quota is available to the Customer. This quota covers services such as technical assistance, configuration adjustments, user support or general operational support within the scope of the agreed Services. Unused support time expires at the end of each month. Services exceeding the quota are invoiced on a time-and-material basis in accordance with section 10.

4.3 Service Disruptions

The Customers are obliged to notify Netstream of functional failures, impairments or disruptions without delay and as precisely as possible. Netstream provides a ticket system around the clock for such reports.

4.4 Trial and Proof of Concept

Netstream may provide Services for a limited period determined in advance for trial, evaluation or proof-of-concept purposes (hereinafter “Trial”), as a rule free of charge or on reduced terms. There is no entitlement to a Trial or to repeated or multiple Trials; Netstream grants Trials at its own discretion and may make them subject to conditions.

During a Trial, the Services are provided “as is”. Any support and any service levels are provided on a best-effort basis only; there is no entitlement to any particular availability, response times or service levels. Warranty and liability for Trial services are excluded to the extent permitted by law. Netstream may restrict, block or end a Trial at any time and without prior notice. The Trial ends automatically upon expiry of the Trial period; an automatic transition into a contractual relationship subject to charges takes place only if expressly agreed. After the end of the Trial, the data may be deleted; the Customer is itself responsible for backing up its data in good time.

5. Availability and Maintenance

5.1 Availability

Availability is governed by the SLA. Unless nothing or something else is agreed in the SLA, the availability of Netstream’s IT and cloud services is 99.9 % per calendar year, less the periods required for maintenance work. Availability is calculated as the ratio of the time actually available to the total time of the calendar year; the measurement period is the calendar year.

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

5.2 Maintenance Work

Scheduled maintenance work generally takes place once a month. Scheduled maintenance work that affects the 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 a.m. and 5.00 a.m. If Customers are affected by the maintenance work, Netstream provides information on the restrictions on the “Status” website at “status.netstream.ch”, where possible 7 days in advance.

In the case of unscheduled maintenance work, the Customers are likewise informed on the “Status” website at “status.netstream.ch”. In the case of short-notice or emergency maintenance work, time windows are chosen, where possible, that have the least possible impact on the Customers.

6. Third-Party Services

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

The engagement of third parties that process personal data on behalf of Netstream is governed by the Data Processing Agreement.

7. Intellectual Property Rights

All intellectual property rights and other rights in the infrastructure and in any software required for the provision of services remain with Netstream, irrespective of whether they are eligible for protection. The Customers do not acquire any rights in the software contained therein.

8. Data

Insofar as Netstream acts as a processor for the Customers, Netstream’s Data Processing Agreement forms part of these GTC.

The Customers retain sovereignty over their data. The Customers are themselves responsible for backing up their data. Netstream is exclusively entitled to use Customers’ data within the scope of statutory and regulatory obligations, for the provision of services and for the improvement of such services, in particular in aggregated or anonymised form. The processing of data by Netstream on behalf of the Customers and the processing of usage data are otherwise governed by Netstream’s Data Processing Agreement.

The Customers ensure the data protection of persons whose data they process. This includes in particular informing such persons and obtaining any consents required for the processing of data.

Upon termination of the service agreement, Netstream deletes the Customers’ data within 30 days of the end of the contract, unless technical locks set by the Customer (in particular Object Lock) prevent this. The Customers are responsible for backing up or exporting their data during the term of the contract, that is to say before termination of the service agreement, and for removing any Object Lock in good time so that deletion can take place. If data continues to be stored beyond the end of the contract or beyond the notice period, Netstream is entitled to invoice the corresponding storage and deletion costs in accordance with the current price list. The Customer may request confirmation that deletion has taken place. A request for early deletion of the data does not terminate the service agreement and in particular does not release the Customer from any agreed minimum contract term and the remuneration owed for it. The Customer remains free to continue using the Services for the remaining contract term. Insofar as Netstream acts as a processor, the return and deletion of the data are governed by the Data Processing Agreement.

9. Warranty and Liability

9.1 Warranty

Netstream warrants the careful provision of the Services. The Customers are, however, advised that restrictions or impairments cannot be ruled out. The availability figures contained in these GTC or in service agreements (cf. section 5.1) are guide values.

In the event of restrictions or impairments and other defects notified to Netstream by Customers, Netstream takes the measures necessary to remedy the defects within the response times defined in the SLA. Compliance with the response times cannot, however, be guaranteed.

Netstream gives no warranty for restrictions and impairments that are not within Netstream’s responsibility or sphere of control. These include in particular acts of third parties, internet outages and force majeure.

Nor can Netstream give any warranty for restrictions or impairments caused by the Customer, for example where the hardware and software configuration recommended by Netstream is not used, in the event of operating errors, impermissible interference with the infrastructure or failure to fulfil the duties to cooperate.

9.2 Liability

Netstream is liable exclusively for direct damage to property or financial loss arising from the performance of service agreements, provided that the damage was caused by gross negligence or intent.

Liability for slight and moderate negligence is excluded. Liability for auxiliary persons is likewise excluded, with the exception of liability for third-party services pursuant to section 6.

In all cases, liability is limited to the amount that an affected Customer paid for the Services in the month preceding the event giving rise to the damage. Liability for all other damage, in particular indirect or consequential damage and consequential damage caused by defects, is excluded.

Liability is also excluded in the following cases:

• Damage outside Netstream’s responsibility or sphere of control (for example technical circumstances that cannot be influenced by Netstream, force majeure and the like)
• Failure to meet availability figures
• Failure to meet response times in accordance with the SLA
• Data loss
• Acts of third parties
• Damage caused by access by unauthorised third parties made possible by acts or omissions of the Customers
• Acts of Customers
• Damage that could have been avoided through the Customers’ duty to mitigate damage
• Unavailability due to maintenance work

10. Remuneration and Terms of Payment

10.1 Remuneration

The remuneration to be paid by individual Customers is governed by the agreements in the respective service agreement or by Netstream’s current price lists, provided that the service agreement refers to them.

Where services are provided on a time-and-material basis (for example service, support or consulting work), invoicing is made in units of 15 minutes per unit commenced. Unless otherwise agreed or specified in the price list, the hourly rate is CHF 220.

10.2 Billing Models

Pay-as-you-go model

The Service is billed monthly on the basis of actual usage. Invoicing takes place at the beginning of the following month on the basis of the measured usage volume.

Bundle model

When booking bundles, the total amount for the contract term is paid in advance in order to receive the corresponding discount. If no notice of termination is given before expiry of the agreed notice period, the bundle is automatically extended by a further 12 months in each case.

Object Storage minimum usage

For the Object Storage service, a minimum billable storage volume of 1024 GB applies in the pay-as-you-go model. Irrespective of actual usage, at least this storage volume is always invoiced.

Upgrade of services

An upgrade by booking additional services or licences is in principle possible at any time. In the case of services billed annually, the additionally booked services are invoiced pro rata for the remaining contract term so that their term is aligned with the existing contract term.

In the case of security services, actual usage may temporarily exceed the number of licences booked (over-provisioning). If the Customer does not adjust its usage to the number of licences booked within 48 hours, the additional licences used are automatically provisioned on a permanent basis and invoiced in accordance with the current price list.

10.3 Price Adjustment

Netstream is entitled at any time to adjust the price lists unilaterally. Price changes are brought to the attention of the Customers in an appropriate form.

Customers who do not agree to an adjustment of the price lists are entitled to terminate the service agreement extraordinarily with effect from the date of the price adjustment.

10.4 Payment and Default

Invoices must be paid by Customers within 30 days of the invoice date. Upon expiry of this payment period, the Customer is automatically in default without further ado and in particular without a reminder. Upon expiry of the payment period, default interest of 5.0 % per annum is owed. Pursuant to section 11, Netstream may then block the Services and terminate the contract.

Costs in the event of default in payment: After at least 2 written reminders, the case is forwarded to a debt collection agency, which charges a processing fee in accordance with www.fairpay.ch.

Security deposit: If there are justified doubts as to a Customer’s compliance with its payment obligations, Netstream is entitled to require the Customer to provide appropriate security (deposit). Until the deposit has been provided, Netstream is entitled to block the Services in accordance with section 11. The deposit is refunded or set off against outstanding claims as soon as the reason for the security ceases to exist.

11. Blocking

Netstream may block Services in whole or in part without prior notice or restrict them to certain services if

i) there is a ground for extraordinary termination pursuant to section 13.3,

ii) the blocking is in the presumed interest of the Customer, e.g. in the event of misuse by third parties, and

iii) in the event of justified doubts as to compliance with the payment obligations, until a deposit has been provided pursuant to section 10.4. The Customer is informed of the blocking by appropriate means.

The blocking may be maintained until the reason for the blocking ceases to exist. Where the Customer is responsible for the reason for the blocking, the Customer’s obligation to pay for the Service during a blocking remains unaffected, and a processing fee may be charged to the Customer for each of the blocking and the unblocking.

12. Set-off, Assignment of Claims and Transfer of Contract

12.1 Set-off and Assignment of Claims

Customers are not entitled to set off any claims of their own against claims of Netstream. Netstream is 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 instruct third parties with debt collection and enforcement.

12.2 Transfer of Contract

The Customer may transfer the contract or individual rights and obligations under it to third parties only with Netstream’s prior written consent. Netstream is entitled to transfer the contract or individual rights and obligations under it to third parties, in particular in the context of a restructuring or the transfer of the business unit concerned. By accepting these GTC, the Customer consents to such a transfer in advance; no additional consent is required. Netstream informs the Customer of such a transfer in an appropriate form.

13. Contract Term and Termination

13.1 General

Subject to agreements to the contrary in the respective service agreement, service agreements are concluded for an indefinite period and may be terminated with ordinary notice of 30 days to the end of a month. Minimum terms agreed in the individual service agreement are reserved.

All contracts may be terminated in writing or by email.

13.2 Adjustment of the Scope of Services

A downgrade by reducing booked services or licences is excluded during an agreed minimum term. After expiry of the minimum term, or in the case of services without a minimum term, a downgrade takes effect at the end of the current billing period, subject to the applicable notice period. Agreed minimum terms and notice periods of the respective service agreement are reserved.

13.3 Extraordinary Termination

Where there is good cause, the contract may be terminated extraordinarily and without notice at any time. Good cause exists in particular if Customers are in default with their payment obligation.

If a Customer no longer stores any data for more than three months, Netstream is entitled to terminate the contract extraordinarily.

14. Confidentiality

The Parties shall treat all non-public information of the other Party received in the course of the contractual relationship – in particular technical, financial and business information as well as terms and know-how – as confidential and shall use it exclusively for the performance of the contract. This obligation continues to apply after termination of the contract.

Information is not deemed confidential if it is publicly known or becomes publicly known without breach of this obligation, was already lawfully known to a Party or was lawfully obtained from third parties. Statutory or official disclosure obligations are reserved. The processing of personal data is governed by the Data Processing Agreement.

15. Final Provisions

15.1 Severability Clause

Should a provision of these GTC prove to be impossible to perform, invalid or ineffective, the performability, validity and effectiveness of the remaining provisions shall not be affected thereby.

In this case, the Parties undertake to replace the provision that is impossible to perform, invalid or ineffective with a performable, valid or effective provision that comes closest in content and economic terms to the original intention of the Parties.

15.2 Force Majeure

The Parties are released from their obligations towards the respective other Party if, for as long as and to the extent that the non-performance of services is attributable to the occurrence of circumstances of force majeure, such as war, strikes, storms 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 without delay upon the occurrence of such an event of force majeure.

15.3 Place of Jurisdiction and Applicable Law

The contractual relationships between the Parties are governed by Swiss law, to the exclusion of the Vienna Sales Convention (CISG) and to the exclusion of the conflict-of-laws rules.

The exclusive place of jurisdiction is at Netstream’s registered office.