General Terms and Conditions
These “General Terms and Conditions for Hosting and Application Service Providing (ASP)” (hereinafter referred to as the “General Terms and Conditions”) govern the legal relationship between xtendx AG (hereinafter referred to as “xtendx”) and any customer (hereinafter referred to as the “Customer”) who uses xtendx’s hosting and/or ASP services (hereinafter referred to as the “Services”).
1. Scope of Application and Conclusion of Contract
By consenting (in writing or electronically) hereto or using the Services, the Customer accepts these General Terms and Conditions and their integral parts (framework agreement, product and services certificate or quotations/order confirmations, usage policy, and license provisions).
2. xtendx’s Obligations and Rights
xtendx will provide the Customer with storage space and IT applications on a server connected to the Internet to enable the Customer to publish its web solution. Unless agreed otherwise, the Customer is entitled to a maximum of 100 Mbit of shared bandwidth. By placing its order, the Customer agrees to the supply of the Services by xtendx. The contract between the Customer and xtendx enters into force on the date when xtendx activates the Services or on the commencement date defined in the specifications. xtendx may use a third party for the performance of its obligations. In such case, xtendx will inform the Customer of the details of the third party.
3. Customer’s Responsibilities and Duties
3.1 The Customer may use the Services to publish its web solution. The Customer agrees to use the Services in accordance with the provisions outlined in xtendx’s usage policy. The Customer is responsible for the content of the information (documents, images, sounds, computer programs, databases, audio/video files, etc.) which it, or a third party which communicates with it, transmits through xtendx or has processed, disseminated, or kept accessible by xtendx. The Customer is also responsible for any references (in particular links) to such information. If the Customer identifies any abuse of xtendx’s Services, it shall report the abuse in writing to xtendx without delay.
3.2. Where the Customer requests xtendx to investigate an interruption to the Services, it is responsible for the costs incurred by xtendx in diagnosing the cause of the interruption and restoring the Services if the interruption was caused by its own conduct or the equipment that it used. xtendx will not pay for support provided by a third party.
3.3. xtendx reserves the right to adopt measures and to impose sanctions that it considers suitable if it acquires specific information about unlawful conduct or a breach of the usage policy by the Customer. If the Customer fails to rectify a breach or act lawfully within a reasonable period following a request from xtendx to do so, xtendx may, at its discretion, terminate its Services and block the Customer’s access to the web solution and/or, in the event of a serious abuse of the Services, terminate the contract without notice. In the event that the Customer or a third party under its responsibility infringes the usage policy, xtendx is entitled to report the activities and identity of the Customer to the criminal authorities.
4. Prices, Invoicing, and Terms of Payment
4.1. The Customer’s obligation to make payment commences on the date when xtendx activates the Services. In the event of doubt, the commencement date defined in the specifications will apply (however, always as from such time as the Customer begins to make productive use of the Services).
4.2. xtendx will invoice the Customer for the selected contract duration (periodicity) in advance. The invoice must be paid by the due date for payment stated on the invoice form.
4.3. If the Customer fails to comply with the above payment terms, xtendx is entitled to charge interest on arrears at the rate of 8% per annum. In addition, xtendx is entitled to terminate the Services pursuant to clause 9.3. Furthermore, xtendx is entitled to suspend the Services as from the date of the Customer’s payment default.
4.4. xtendx reserves the right to change its prices at any time. xtendx will give the Customer timely notice of any changes such that the Customer has the option of terminating the contract within the notice period for termination. The Customer will be deemed to have accepted such changes unless it gives written notice of its termination of the contract.
4.5. The Customer shall not set off any amounts owed to it by xtendx against any amounts that it owes to xtendx.
5. Warranties and Liability
5.1. xtendx warrants that it will provide the Services with care and professional skill. However, xtendx cannot guarantee that the Customer’s web solution will be accessible via the Internet without interruption or that the data requested by the Customer will be delivered via the Internet without error or delay. Furthermore, xtendx gives no warranty that the Services that it provides or that are provided by any third party that it engaged will enable the Customer to achieve its intended business purposes or any other purposes.
5.2. At the Customer’s request, xtendx will prepare an acceptance report. In any event, acceptance will be deemed to occur when the Customer starts to make productive use of the products and Services.
5.3. xtendx is not liable for any abuse of its communications’ infrastructure by third parties or for attacks by third parties (e.g. computer viruses, unauthorized manipulation and sending of e-mails). In addition, xtendx is not liable for any damage that the Customer or the Customer’s customers suffer as a result of the inability to access the Internet or to send or receive information, or due to data loss.
5.4. The Customer and xtendx are responsible for damage arising from a breach of their contractual or statutory obligations.
6. Confidentiality and Data Protection
xtendx and the Customer mutually agree to keep confidential all information and data to which they become privy in the course of preparing and performing this contract unless such information and data is in the public domain. This duty of confidentiality will remain in force and effect even after the termination of this contract in those cases where there is a legitimate interest in the continued confidentiality of such information and data.
7. Intellectual Property
7.1. xtendx grants the Customer and its agents a nontransferable and nonexclusive right to use and exploit the Services for the term of the contract.
7.2. Any rights to intellectual property existing in the Services or created in performing the contract (e.g. programs, templates, and data) will remain with xtendx or any third party engaged by xtendx.
8. Force Majeure/Third-Party Supplier Default
In the event that xtendx is prevented from performing its contractual obligations due to an event of force majeure, e.g. a severe natural disaster, war, riots, strikes and/or third-party supplier default, the imposition of unforeseeable governmental conditions, etc., the performance of the contract or the date for its performance will be postponed for the duration of the event. In such cases, any liability of xtendx is excluded.
9. Term and Termination of Contract
9.1. The contract will commence upon receipt of the order. The contract duration is 12 months and is renewed automatically for another year unless the contract is terminated by registered letter with a notice period of 3 months to the end of the contract term or its extension.
9.2. If the Customer terminates the contract during the agreed minimum term, it is not entitled to a refund of fees that it has already paid.
9.3. If the Customer breaches a contractual provision or uses the Services for unlawful purposes, xtendx is entitled to terminate the contract without notice. In this case, the Customer shall pay xtendx the fees owed up until the date when the contract would have ordinarily terminated.
9.4. xtendx is permitted to terminate the contract if bankruptcy proceedings are instituted against the Customer or proceedings on account of the Customer’s illiquidity are instituted against it or if it becomes apparent in some other way that the Customer is no longer able to meet its payment obligations, and if the Customer does not pay the fees for the next contractual term in advance or provide appropriate security for payment.
9.5. xtendx is entitled to delete the Customer’s data after the expiry of the contract. The Customer is responsible for the backup of its own data.
10. Additional Provisions
10.1. Amendments and additions to this document will only be valid if they are in writing and xtendx has consented to them. xtendx may in principle amend these General Terms and Conditions at any time; however, the amendments will not take effect until the expiry of the contractual term. The current version is posted on xtendx’s website and shows the date from which it applies.
10.2. Rightsandobligationsarisingfromthiscontractmaynotbeassignedtothirdpartiesexceptwith the written consent of the respective other party. The foregoing provision does not apply to an assignment of this contract to a legal successor or affiliated entity.
11. Applicable Law and Jurisdiction
Except where otherwise provided by mandatory statutory provisions, the courts of Regensdorf have exclusive jurisdiction for all legal relations between the Customer and xtendx. These General Terms and Conditions are governed by and construed in accordance with Swiss law.
January 9, 2014