Terms and Conditions

1. Conclusion of the contract

1.1 These General Terms and Conditions (hereinafter referred to as the “Terms and Conditions”) govern the mutual rights and obligations of ServerBase AG, CH-8180 Bülach (hereinafter: “ServerBase”) on the one hand and the customer of ServerBase (hereinafter referred to as “Customer”) on the other.

1.2 These GTC serve as the basis of the contract and are also valid without explicit reference for all contracts between the parties. Any business or purchase terms and conditions of the customer are deemed to be away. Agreements that deviate from the present GTC, including this written form clause, must be in writing.

1.3 ServerBase is entitled to adapt the present terms and conditions and services, as far as ServerBase considers this to be reasonable for technical reasons or due to the market development and thus the interests of the customer – in particular the reasonableness of service and consideration – are not unreasonably affected.

2. Start, duration and termination of the service contract

2.1 The contract with ServerBase for the use of services of ServerBase comes about with sending of the online order form or in another electronic way or with the signing of a written order form / contract.

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

2.3 Each Contracting Party may terminate the service contract by giving notice of 30 days by registered letter at the end of the contract period, but for the first time at the end of the minimum contract period as specified in the service contract between the parties.

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 ServerBase or the third-party services obtained through this service are legally, contractually or uselessly obtained, used, made accessible to unauthorized third parties or if the terms of use of ServerBase or third parties are disregarded.

2.5 If the contract terminates without notice or in due time, ServerBase deletes all data of the customer on their systems after expiry of a 10-day security period. The customer is responsible for a timely backup of his data.

3. Services of ServerBase

3.1 ServerBase offers services of all kinds in the area of ​​Internet and provides its services in the context of the contract with the customer and the operational resources available.

3.2 The service obligation of ServerBase, results from the service descriptions of the ServerBase as well as from the contracts with the customer.

3.3 The Internet is a worldwide system of independent, interconnected networks and computers. ServerBase only has an impact on those systems that are in its network and therefore can not guarantee error-free services.

3.4 ServerBase provides the services professionally and carefully according to the current state of the art. The services are generally open to the participant for use 24 hours a day, 7 days a week. However, ServerBase can not guarantee the uninterrupted and trouble-free functioning of the services or the absolute protection of its network against unauthorized access or unauthorized interception. In the event of disruptions in terms of the use and the provision of services, the participant is only entitled to withdraw from this contract, provided that he informs ServerBase immediately in writing about the disruption and twice has set a reasonable deadline for rectification. Advertised interruptions of the Services, in particular as a result of maintenance work by the relevant media supplier, are not considered to be disruptions.

3.5 Performance delays due to force majeure and events that make it for ServerBase much more difficult or impossible to provide the services – as well as failure of other operators’ communication networks and gateways.

3.6 ServerBase assists the customer in establishing a stable state for the use of services at the applicable hourly rate.

3.7 ServerBase undertakes within the usual working hours of the office of ServerBase to take measures for the rectification of malfunctions and malfunctions of the services in attack or perform. The usual working hours are the weekdays Monday to Thursday, 08.00 – 17.00 and Friday 08.00 – 16.00, with the exception of the Swiss federal holidays and the cantonal holidays at the headquarters of ServerBase and the time from 24.12. to 2.1., regarding outside office hours, the service level agreement chosen by the customer applies.

3.8 The customer is only entitled to a refund of services billed by ServerBase if this has been agreed upon in advance in writing in a contractually agreed service level agreement. For all other failures of services, there will be no refund of fees already paid.

3.9 Any claims for reclamation by the customer shall lapse if a failure has not been reported to ServerBase within 30 days of the end of the calendar month concerned and a corresponding fee recovery has been asserted against ServerBase. In the case of justified claims, ServerBase will always charge them in the form of a credit note with future subscription fees. The burden of proof regarding the unavailability lies with the customer.

4. Obligations of the customer

4.1 Upon conclusion of the contract, the customer undertakes to accept and pay for the contractual services / products.

The customer waives the dissemination of information and images with illegal content. In particular, are prohibited:

  • Calls for violence in the sense of Art. 259 StGB
  • Racial discrimination within the meaning of Art. 261 StGB
  • Guidance or incitement to criminal conduct
  • Unauthorized gambling in the sense of the lottery law
  • Defamatory statements about third parties or infringing publications
  • Information that infringes copyrights, related rights or other intellectual property rights of third parties.
  • not to use the ServerBase services for damage or harassment of third parties, in particular not unauthorized intrusion into foreign systems (hacking), distribution of viruses of any kind or by unsolicited sending of e-mails (spamming, junk mail and the like)
  • Content of an erotic nature must be protected against the access of minors by means of suitable measures. The operation of so-called download sites is basically undesirable and in any case with the provider in advance to clarify.
  • The operation of websites with copyrighted content (MP3, “Warez”, “Appz”) is prohibited, unless the operator is in possession of valid licenses, which allow him to distribute in Switzerland. Such licenses must be submitted to ServerBase upon request. ServerBase reserves the right to block such content in its sole discretion and to terminate the contract without notice, with no payments already made being refunded.
  • It is necessary to search networks for open ports (accesses) of foreign computer systems;
  • By configuring server services (such as proxy, news, mail, and web server services) to cause unintentional replication of data (Dupes, Mail Relaying);
  • Fake mail and newsheaders as well as IP addresses;
  • Download sites, TOR services (or other anonymization services) or sites that generate high traffic.

5. Warranty

5.1 If ServerBase sells third-party products (in particular hardware and software) to the customer, it will benefit from the same warranty as granted to ServerBase by the manufacturer of the third-party products. Expenses incurred by ServerBase resulting from defective hardware or software are not covered by the manufacturer’s warranty. Similarly, the expenses incurred by ServerBase after delivery of hardware and software from third parties to the customer, are not covered by the manufacturer’s warranty. This includes, in particular, the reinstallation of programs, configuration of hardware parts and other expenses associated with the delivery of the hardware and software.

5.2 Warranty services are generally provided during normal business opening hours at the domicile of ServerBase by appropriately trained specialist staff. The necessary transport and / or travel costs incurred by ServerBase for the provision of warranty services shall be borne by the customer.

6. Rights of use of software and product or service names as well as «Managed Services»

6.1 Unless otherwise expressly agreed, the following rules apply to rights of use of software and product or service names regarding the services managed by ServerBase: The customer is granted a non-exclusive, unlimited and non-transferable right to use software and goods or service marks for their own , granted internal use. Additional regulations for the use of software are hereby included. The software may not be made accessible to third parties. Standard third-party products are subject to their license terms, as far as they contain further restrictions.

6.2 Deviating from paragraph 6.1 hereby agreed that rights of use for software can be transferred to third parties, all copies must bear the original copyright notice and all other protection.

6.3 If claims for infringement of property rights are asserted in connection with the subject of the contract (software development or implementation of other projects), the customer is obliged to notify ServerBase in writing within 5 calendar days. The customer may not carry out any legal actions without the prior consent of ServerBase and grant the defense against such claims to ServerBase upon request, in particular the litigation, including a settlement settlement.

6.4 If the use of the contractual object by the customer or parts of it is prohibited by a court decision or if in the opinion of ServerBase threatens an action for infringement of property rights, so ServerBase has the right to choose between the following measures:

  • change the subject matter of the contract in such a way that it no longer violates any property rights;
  • give the customer the right to continue to use the subject matter of the contract;
  • replace the subject matter of the contract with a contractual object that does not infringe any proprietary rights and that either complies with the requirements of the customer or is equivalent to the replaced subject of the contract;
  • withdraw the subject matter of the contract and reimburse the customer for the paid fee less an appropriate amount for the use and the loss of value.

6.5 The above obligation does not apply to contractual objects for which the infringement of property rights is based on a concept originating from the customer or on the fact that the subject matter of the contract was changed by the customer or operated together with objects not supplied by ServerBase.

7. Prices, allowances, terms of payment, retention of title

7.1 All agreed prices for ServerBase services are in Swiss francs and include VAT and other public charges.

7.2 The terms of payment are based on the contract with ServerBase. After expiry of the term of payment, the customer is automatically in default without notice. Any objections to the invoice must be made in writing by the customer within the payment period. If no objections are raised within the deadline, the invoice is deemed to have been approved by the customer.

7.3 The prices for the ServerBase services are based on the current price list. Price changes will be communicated to the customer as soon as possible. ServerBase may make reasonable price changes during the term of the contract if significant cost factors have changed. ServerBase shall have the same right in the event of an unusually intensive or special cost-causing extent of Customer’s use of the ServerBase Services.

7.4 The customer has to reimburse collection incidental costs to ServerBase.

7.5 Delivered goods remain the property of the ServerBase until full payment of the purchase price. ServerBase reserves the right to register a reservation of title in the relevant register. Pledging or transferring the goods by the customer is not permitted. Property rights are not transferred to the customer. Processing or transformation always takes place for ServerBase as the owner or authorized person, but without obligation for them. If the (co-) ownership of ServerBase lapses due to a connection or sale, it shall be deemed agreed that the resulting claims of the customer – in the case of a connection in proportion to value – shall be transferred to ServerBase.

8. Delay

8.1 In the event of default of payment by the customer, ServerBase is entitled to discontinue or block its services. In this case, the customer has no claim to performance by ServerBase and remains obliged to pay the periodic fees. A re-activation fee of at least CHF 50.00 will be charged.

8.2 In the event of late payment, ServerBase is also entitled to charge default interest in the amount of 5%.

8.3 If the customer delays payment of the fees or a part thereof for two consecutive billing periods, ServerBase can terminate the contractual relationship without notice.

8.4 ServerBase reserves the right to assert further claims for late payment, in particular for costs incurred by ServerBase through dunning and foreclosure proceedings. For reminders, ServerBase may charge reminder fees of at least CHF 20.00 per reminder.

9. Clearing and retention right, assignment, transfer

9.1 ServerBase can bill your claim against counterclaims of the customer. The customer is not entitled to offset any counterclaims with claims of ServerBase.

9.2 The customer agrees to waive the assertion of retention rights to ServerBase.

9.3 All contractual rights and obligations are – unless otherwise agreed – neither transferable nor can they be assigned to third parties.

10. Disclaimer and limitation

10.1 ServerBase does not provide for your services neither the uninterrupted trouble-free operation nor the trouble-free operation at any given time. Liability for interruptions in operation, in particular for troubleshooting, maintenance or the introduction of new technologies is hereby excluded.

10.2 ServerBase does not guarantee the integrity of the data stored or transmitted via its system or the Internet. Any warranty for accidental disclosure, damage or deletion of data sent or received through your system or stored there will be excluded.

10.3 ServerBase is not liable for any direct or indirect, direct or indirect damages resulting from the use or by default of the services delivered / provided by ServerBase.

10.4 ServerBase is not liable in particular in the following cases:

  • Direct or indirect consequential damage in case of malfunction of the ServerBase infrastructure.
  • Electronic messages that are not transmitted correctly, not at all, illegally or intercepted by third parties;
  • Missing or inadequate secrecy of encrypted data.
  • Processing errors in the processing of business transactions via the Internet (electronic commerce), in particular not in the case of transmission errors of credit card data or other payment information;
  • Legal disputes as a result of domain name registrations or domain name deletions caused by ServerBase on behalf of the customer.

10.5 Any liability of ServerBase and its vicarious agents for a specific technical or commercial success, for indirect damage such as loss of profit, claims of third parties and consequential damage resulting from loss of production, data loss and liability for slight negligence are expressly subject to further mandatory statutory liability provisions.

10.6 ServerBase is in no way obliged to check the content of customer offers for their legal compliance.

11. Privacy Policy

Customer data is processed in accordance with the Data Protection Act. The Customer expressly permits ServerBase to use customer data for marketing purposes (e.g., for customer information about new services or products). ServerBase does not sell or lease customer data in parts or as a whole to third parties. Only data that is necessary to process the provider / customer relationship are stored.

12. Confidentiality

12.1 The parties undertake to keep confidential information of the contracting party secret and in particular to make it accessible to unauthorized third parties. In particular, the content of contracts including attachments is considered confidential.

12.2 ServerBase has the right to assign customer addresses to third parties, namely to criminal authorities, in the event of a legal or immoral act.

13. Place of Performance, Jurisdiction, Applicable Law, Miscellaneous

13.1 Place of fulfillment is CH-8180 Bülach.

13.2 The exclusive place of jurisdiction for any disputes arising from or based on the present GTC or the customer contract is CH-8180 Bülach.

13.3 The contractual relations between the parties are subject exclusively to Swiss substantive law.

13.4 If provisions of these Terms and Conditions are invalid or legally invalid, the remaining provisions shall continue to apply. In this case void or legally ineffective provisions will be replaced by legally effective ones whose economic effects are as close to those of the invalid ones as legally possible.

Ausgabe April 2010