GENERAL TERMS & CONDITIONS
1. General provisions
These general terms and conditions apply to all services (services in general, managed services, cloud services and products) provided by Wide Technology Partners AG (hereafter “Wide”) supersede any previous agreements and apply to all contracts between Wide and the customer (hereinafter “Customer”), unless and in so far as not otherwise agreed in writing in individual cases. Any business or general terms and conditions of the customer are excluded.
For each service, the relevant Special Terms and Conditions apply, if available / applicable. These may legally differ from these terms and conditions. Should individual provisions of these General Terms and Conditions and the Special Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected. In this case, the invalid provision shall be replaced by a provision which comes as close as possible to the invalid provision in its economic purpose. Insofar as these General Terms and Conditions, the Special Terms and Conditions and a possible individual written agreement contain no provisions, the provisions of the Swiss Code of Obligations shall apply on a subsidiary basis. Wide is authorized to adapt the Services as well as the present GTC, as far as this is considered reasonable and practicable and thereby the interests of the customer are not unreasonably affected. Wide informs in advance in writing about any changes to these conditions. In the case of significant changes to the contract, the customer has the right to cancel in writing until the effective date of the change, whereby existing orders remain unaffected. If he fails to do so or if he continues to use the services or products after the new GTC has come into effect, these are considered accepted. The current terms and conditions, as well as the special terms and conditions can be viewed under www.wide.ch.
1.1 Service Provider/Supplier: Wide reserves the option to use a different company instead of the originally designated company as provider/supplier of the contractually agreed services (internet, telephony, hardware, maintenance,…) and / or to use third party suppliers or sub-suppliers and the customer agrees accordingly.
1.2 Geographic limitations: Wide offers services and products to companies based in Switzerland and throughout Switzerland. However, Wide does not guarantee the full availability of services outside the country’s borders, as these are influenced by the type of existing lines, the quality of the connection and the customer’s material and IT resources.
2. Terms of contract
2.1 Effective date and duration of contract: The contract between Wide and the customer is concluded with the signature/order of the offer by the customer, whereby the content of the offer is deemed approved. The customer confirms with his signature/order that the customer has taken note of these General Terms and Conditions and the Special Terms and Conditions and agrees to them without reservation. In the case of an order via internet/telephone, the contract begins when the corresponding order confirmation/confirmation e-mail has been sent to the customer. Even in the absence of an offer, the contractual relationship begins at the latest with the use of the product/service. The delivery of the order confirmation or other documents by fax or e-mail binds the parties and is deemed to be equivalent to delivery by post. The sending report of the sending fax machine shall be deemed to be the acknowledgement of receipt of the addressee. Wide reserves the right to refuse to sign a contract without giving reasons. The normal contract period is 12 months, unless otherwise agreed in writing.
2.2 Termination: Upon submission of a written contract, the minimum period, the notice period and the termination date are determined by the respective contract, which was concluded with Wide. If termination takes place before the end of the agreed minimum period or on an unscheduled date, the reimbursement of the amount / fee pro rata temporis is excluded and forfeited to Wide. Except for fixed term contracts, all contracts and subscriptions will be tacitly renewed for another year after the agreed term of the contract or subscription, unless they are terminated by one of the two parties in writing and subject to a three month notice period on the anniversary of commissioning at the end of the month.
Early termination is possible in the following cases:
– If the contract performance is unavailable for a long time: In case of proven permanent or long unavailability of the contracted service, for which the customer cannot be held responsible, Wide and the respective partners refund the customer for the remaining contract or subscription period from the occurrence of unavailability (pro-rata calculation). Explicitly reserved is force majeure for the relief of Wide. “Long unavailability” in this sense, is a period of at least five consecutive working days from receipt of the customer’s registered letter informing Wide of the interruption of service. The limitation of liability of Wide applies (see section 5 hereinafter).
– In the event of default of payment by the customer: If outstanding invoices are not settled despite a set grace period, Wide can terminate the contract or subscription prematurely with a 30-day notice period. A premature termination due to non-payment of the invoices has the following consequences: Wide as the provider is released from the obligation to perform any duties/services after the futile elapse of the given period. The customer’s payment of the open invoices is due without deductions and in addition to that the fees until the next contractually agreed termination date. All outstanding amounts and fees are due immediately upon receipt of the early termination.
– In the event of unlawful, inappropriate or abusive behaviour of the customer: The present technological standards, the performance of the internet network and the quality of the telephone connections are influenced by physical aspects of the type of transmission and of the transmission medium. Furthermore, the functionality depends directly on the appropriate use by the respective user. Wide is committed to ensuring efficient operation and to preventing inappropriate or abusive behaviour wherever possible. Inappropriate or abusive behaviour includes in particular: Misuse of the unlimited internet connection (e.g. uninterrupted downloading by one or more computers, abusive telephone calls, inappropriate and / or improper use of the telephone line; any use that interferes with the proper functioning and security of the internet; systematic and / or aggressive sending of e-mails, begging letters, etc. (spamming); sending messages, files, etc. with violent, pornographic, racist, human dignity infringing and similar content; providing websites and information (blogs) featuring violent, pornographic, racist, human dignity-infringing and similar content; alienation or poor maintenance of the material provided by the provider. In any case, Wide decides whether it is unlawful, inappropriate or abusive. Wide relies on the complaints of other users. Wide may, at its sole discretion, warn the customer or discontinue the service without further notice until the customer agrees to refrain from the conduct charged to him in the future. If the customer refuses or fails to make such an undertaking and in the event of repeated unlawful, inappropriate or abusive behaviour, Wide may prematurely terminate the contract or subscription with immediate effect. The consequences are the same as for non-payment by the customer (see above). If there is a serious breach of Net-Etiquette / Godwin’s Law or any criminally relevant conduct due to transmitted or provided information, the provider may prematurely terminate the contract or subscription with immediate effect.
– At the request of the customer: long-term contracts can be terminated prematurely by the customer. In the event of early termination at the request of the customer, the customer shall be responsible for the shutdown fee charged by Swisscom, Sunrise or other providers and for the premature termination fees as follows: The customer must pay the entire amount due for the duration of the contract. If the duration of the contract exceeds one year, it owes the contribution in full for the current year, 50% for the following year and 25% for each subsequent year. In addition, the rebates granted during commissioning for contracts with a term of more than one year must be fully reimbursed to the provider. The premature termination results in the immediate termination of the contractually agreed services.
– In case of violation of the respective Special Terms and Conditions.
After termination of the contract, the items and documents provided to the customer, which are the property of Wide, shall be returned to Wide without delay, but at the latest 14 calendar days after the contract has been terminated, at the cost and risk of the customer. If the customer does not comply with this return obligation, the customer is obliged to pay compensation of the replacement value of the objects and documents, unless a higher damage is proven.
Wide may terminate the contract without notice if a bankruptcy, insolvency or similar proceeding has been opened or an application has been made to open such a proceeding. The customer is obliged to inform Wide about the relevant facts immediately. In the event of premature termination of the contract for a reason for which the customer is responsible, Wide is entitled to demand compensation of the same amount that would be payable for the remainder of the contract period. The right is reserved to claim further damages.
2.3 Indivisibility of the service: The contractually agreed or subscribed services are granted in their entirety and are limited in time. The customer cannot terminate the contract or subscription for only part/s of the services. Without prior written approval, the customer is strictly prohibited from transferring, reselling or assigning any services provided by the provider under the contract or subscription to third parties. The public internet addresses provided by the provider cannot be transferred to the customer’s property. They remain at all times the property of the European coordination office for IP networks RIPE registered provider. The customer declares to be aware of the respective restrictions with respect to the acquisition, especially trademarks, and knows the ownership of domain names. According to the applicable legal provisions, the final acquisition of a domain name is not possible (see also the regulation on addressing elements in the telecommunications sector (AEFV: SR 784.104).) In case of doubt, the customer can contact the regulatory authorities (switch.ch, internic.com). The provider’s top-level domains (.com, .ch, .org, .net, etc.) correspond to the top-level domains recognized by ICANN (Internet Corporation for Assigned Names and Numbers). For any questions, the customer can contact the organization directly (www.icann.org).
3. General responsibilities of the contracting parties
Wide and the customer must use every effort to ensure the proper and faithful execution of the contract. They further agree to inform the other party of circumstances likely to affect the performance of the contract and to respect the Internet etiquette (“Godwin’s Law”). The customer must truthfully notify Wide of any aspect that could affect its contractual ability or the quality of service provided by the Service Provider. When using the services provided, such as Internet access, telephony and others, the customer strictly complies with the Swiss law and the valid international agreements. In particular, the customer pays attention not to violate the provisions of the Swiss Penal Code, namely the Telecommunications Act and its regulations. The customer is liable for acts of civil and criminal nature and absolves Wide in the event of prosecution of any responsibility. The customer strictly adheres to the Swiss legislation when using the infrastructure provided to the customer.
3.1 Wide: Within the service obligations and scope of work, Wide is responsible for the availability of the IT infrastructure. For maintenance purposes and in the event of unexpected system failures, Wide may, at any time and without notice, limit or suspend the availability of the services for an indefinite period. As far as Wide provides free services, they may be discontinued at any time and without prior notice and there is no entitlement to any reduction, refund or compensation or else. Any delays caused by force majeure and / or due to events that make the performance much more difficult or impossible – in particular: strike, lockout, official orders, the failure of communication networks and gateways of other providers – entitle Wide to prolong the delivery time accordingly and are also subject to an extended grace period.
3.2 Obligation of the customer: The customer is responsible for an appropriate working environment and the operation of their own infrastructure, as well as the computer systems themselves, and works closely with Wide to achieve the best possible results. The provision of internet or telephony services and managed services and their quality are closely linked to the location of the customer connection when signing the contract and the accuracy of the customer’s information. Any changes in address, including those within the same place of residence or building, must be notified to Wide without prior request immediately and, if possible, in advance. Wide may charge the customer for any address search costs in the event of an unreported address change. Wide assumes no liability in the event of unavailability of the service as a result of a move by the customer or the cessation of a third-party service. Wide reserves the right to use the most appropriate service for the customer’s place of residence instead of the unavailable service. Wide shall invoice the customer for the costs of the technical change and the costs incurred by the relocation of third parties (e.g. Swisscom, Sunrise), in particular the line costs paid and the costs of cancelling the line. In the same way, the customer must inform Wide about changes to his e-mail address and about changes in its situation that could affect the services of the provider. The customer is responsible for the hardware and software components (including programs, licensing and configuration) on the customer’s devices. The service provider does not guarantee that services will function properly on customer’s technically poorly equipped devices/machines/hardware.
4. Costs and payment conditions
4.1 Charges on time and material basis: Unless otherwise agreed in writing between Wide and the customer, Wide will invoice services on a time and material basis. In addition to the above services, this also includes support (also by telephone), as well as remote access. The time subject to compensation includes the time spent at the customer’s site or the time spent on support on the phone or remote access or the corresponding travel.
4.2 Tariffs: The tariffs and provisions in accordance with the contract plus expenses apply as far as accrued and chargeable. Insofar as no specific agreements have been made, the commercially available tariff or value of the goods shall be deemed to be due. The minimum duration of an intervention at the premises of the service recipient is two hours, the duration of a remote operation is half an hour; regardless of the effective duration.
4.3 Invoices: All Wide invoices are due for payment within 30 days from the invoice date, from which date a default interest begins to run, which is 5% higher than the CHF Libor.
4.4 Reminder fee: A fee of CHF 20.- will be charged for the reminder after the expiry of the payment period, regardless of the amount of further interest on late payment.
4.5 Discontinuation of service: In the event of a delay in payment by the customer, Wide is entitled to discontinue the services or deliveries. In this case, the customer is not entitled to services delivered by Wide but remains obligated to pay in full any periodic fees or maintenance costs that are charged on it.
4.6 Deposit: Wide may at any time require the customer to pay a deposit to cover the services provided to the customer, in particular for the provision of material, the extraordinary increase in the volume of data and the protection in the event of late payment. If the customer does not provide the required guarantee within the given period, Wide is entitled to refuse or discontinue the provision of the service without further notification. The customer bears full and sole responsibility for the consequences of the interruption of performance and cannot claim compensation (see 2.2).
5. Liability limitation
5.1 Limitations: With the use of the services of Wide, no liability claims are granted beyond those cases where no derogation from statutory provisions is possible. The customer is informed of the limitations of the internet and telephony network as well as of the dangers associated with their use. Wide does not enter into a commitment of results, but merely a commitment of means. Wide does not guarantee the constant availability of the internet and telephone network, nor a non-disruptive connection or a minimum data rate. Wide reserves the right to re-initialize for technical reasons or to temporarily suspend the connection. Wide is committed to adhere to the “best effort” principle. i.e. with the best of knowledge and conscience, use at all times all available and according to technical knowledge human and material resources in order to achieve the desired result. In no event shall Wide be liable for any actions, omissions, interruptions of performance, quality problems or delays caused by third parties. It is up to the customer to install the necessary security systems (firewall, antivirus, etc.) to protect themselves against illegal attacks. Wide can provide the customer with technical solutions for a fee, if desired.
Wide shall not be liable for any damages caused to the customer by a temporary or permanent interruption or delay of the services or the network, such as lost profits, loss of business data, non-availability of the data (direct and indirect damage). Wide is not liable in particular in the following cases:
Direct or indirect consequential damage in the event of malfunctions of Wide’s infrastructure, in particular in the event of faults in the leased lines of Wide’s sub-suppliers;
Electronic messages that are not correctly, not at all, unlawfully transmitted or intercepted by third parties;
Lack of or deficiency of confidentiality of encrypted data, notably if Wide acts as a certification body or offers other cryptology services;
Processing errors in the processing of business transactions over the Internet (Electronic Commerce), in particular not in the case of transmission errors of credit card data or other payment information;
Lack of or defective hit rates in internet search engines, even if the customer expressly places an order with Wide to make the search engine registrations;
Legal disputes arising from domain name registrations or domain name deletions that Wide has initiated on behalf of the customer.
5.2 Liability: In any case, Wide is only liable for direct damage if proof of impairment of the customer due to gross negligence of an employee or a defect of the proposed (safety) solution up to an amount of CHF 250,000.— after tax. Liability for indirect or consequential damages of any kind, in particular for loss of production and use, for data loss, lost profit or other indirect damages as well as for damages due to force majeure are excluded as permitted by law. Liability in accordance with the Federal Act of 18 June 1993 on product liability (Product Liability Act, PrHG) remains unaffected in any case.
6. Privacy Policy
The customer has been informed of the nature, scope, place and purpose of the collection, processing and use of the personal data required for the performance of services. Wide’s data protection policy applies in accordance with 6.1. Wide shall transmit the collected data to companies connected to Wide, including foreign ones, if this is necessary for the purpose of fulfilling the contract.
6.1 Data protection policy
Wide strives to use the customer’s data to its knowledge within the scope of the statutory provisions, and Wide strives to take into account the national and international regulations for the protection of data protection. Accordingly, Wide informs customers about the processing of their data within the framework of the data protection regulations. The Federal Act of 19 June 1992 on Data Protection (DSG) defines as processing all handling of personal data, regardless of the means and procedures used.
6.2 Data collection
a) The customer data is recorded at the time of placing the order. This is done either within the framework of a contract initiation in direct contact between the customer or online via the corresponding web forms;
b) In addition to the personal data, depending on the service, various data about the customer’s technical infrastructure are also collected, e.g. serial numbers of hardware, licensing of software, network environment, access data, installation routines, IP addresses, etc. This data collection is carried out exclusively for the purpose of comprehensive customer support;
c) When visiting the homepage of Wide, the following information is stored, which is only used for statistical purposes and do not allow conclusions to be drawn about the user: IP address used, browser incl. version, operating system incl. version and (if available) the domain that has been listed on www.wide.ch (search engine, banner, etc.). Wide may use the customer’s IP address to ensure compliance with these Terms & Conditions or the security of these services, the homepage or other users.
6.3 Data use
The data collected by Wide will be used for the purpose of fulfilling the contract. In addition, Wide is entitled to use the data for information purposes about other Wide products.
7. Confidentiality and intellectual property, non-solicitation clause
7.1 Confidentiality
All activities for and with the customer are treated as confidential. Wide shall take the necessary precautions to secure relevant information. The parties undertake the necessary steps to keep confidential information of the contractual partner secret and not to make it available to unauthorized third parties. In particular, the content of contracts, including annexes, is considered confidential, even without a specific confidentiality notice. In the event of a determination of unlawful or immoral acts, Wide is entitled to hand over customer addresses to third parties, in particular to law enforcement authorities.
7.2 Intellectual property
The customer has the right to use the products, inventions and applications of Wide insofar as these are in connection with contractual agreements. However, Wide owns and is a commercial user of these inventions and developments. A deviation from this requires the written consent of Wide.
7.3 Non-solicitation clause
No party may, for the duration of the business transaction and within one year thereafter, recruit employees of the other party for itself or for a third party without the other party’s written consent. Any party who hires, employs, or arranges or otherwise makes use of an employee of the other party without their written consent pays the other party a payment for the resulting recruitment and introduction of personnel a compensation fee equal to the half-yearly salary of this employee, but at least SFr. 50’000.-.
8. Place of performance, place of jurisdiction and other
Place of performance is CH-6315 Oberaegeri/ZG. The General Terms and Conditions and the individual contracts concluded are subject to Swiss law. Oberaegeri/ZG is the exclusive place of jurisdiction for all disputes arising from these General Terms and Conditions, the Special Terms and Conditions and the individual contracts concluded, unless there is any other legally binding place of jurisdiction.
A) Special Terms of Business – Managed and Cloud Services
A.1 Delivery of hardware and software: Hardware and software are delivered with the status “as-is”. The customer can authorize Wide for design, setup and implementations or adjustments. The services, software, and applications described for Managed Services are merely installed and available “as is” for further customization and configuration by the customer. The customer can authorize Wide with these extended services. The responsibility for the platform and the applications running on it lies with the customer. The customer can entrust Wide with the maintenance, adjustments, etc. within the desired framework against offsetting. If technically feasible, Wide will complete this task accordingly.
A.2 Backup: Backups are carried out regularly and, unless otherwise agreed in writing, the secured information will be kept for a period of one week. The customer is responsible for the consistency of content, data and files.
A.3 Redundant Services: If the customer has purchased a redundant service, Wide ensures redundant components and their functionalities. The customer is responsible for the availability of installed operating systems, applications, data, security and their regular updates.
A.4 Connection: The customer can access the server platform via direct connection or internet, provided that direct connections or remote access solutions have been agreed/ordered in writing.
A.5 Commissioning status: The customer must notify Wide in writing of any changes, additions and adjustments no later than ten days after commissioning. Thereafter, the status of the services is recorded and all other changes are reviewed by Wide and, if technically possible – done for a fee. After the above date, Wide is no longer responsible for features and limitations; especially if these were caused by updates or adjustments of software or hardware.
A.6 Ownership of services, etc.: Services, products, materials and other services (in particular hardware and software, as well as IP addresses, telephone numbers, licenses, domain names) always remain the property of Wide or its respective partners (even after installation). Any changes regarding location, configuration or the like are only permitted with the prior written consent of Wide. This property may be reclaimed at any time with a notice period of 30 days until the end of the month. In particular, there is no claim for retention or right to offset of the customer.
A.7 Contract duration: For all managed and cloud services, a regular contract period of 36 months applies, unless otherwise agreed.
A.8 Limitation of Liability: In any case, the customer will be refunded at most the amount paid for the current subscription or contract period to settle the claim.
B) Special Terms and Conditions – Delivery of IT Products
Wide does not manufacture IT products. Wide delivers selected IT products to the customer. All IT products supplied by Wide are therefore third-party products. Wide does not control the quality of such products. The price of the IT products supplied by Wide depends on the order confirmation of Wide. The prices in the signed offer may be subject to the current exchange rates. Therefore, Wide reserves the right to adjust the prices accordingly in the period between the signing of the offer and the final order confirmation. The binding prices can be seen in the order confirmation. In addition, the terms and conditions of the contract shall be governed solely by the conditions of the manufacturer or the supplier of the IT products. Wide does not assume any independent obligations towards the customer from the delivery of IT products, with the exception of those that accept IT products from the supplier and hand them over to the customer. Wide is only liable for delivery delays to the customer if these are due to the area of responsibility of Wide and didn’t inform the customer immediately regarding the delivery delay. In addition, Wide excludes any liability for the IT products supplied. The customer shall assert any liability claims directly against the manufacturer or supplier of Wide, for which Wide assigns all warranty and liability claims against the manufacturer or supplier to the customer at its first request. Until the customer has paid the purchase price of the IT products in full, they remain the property of Wide. Wide is entitled to enter the retention of title in accordance with Art. 715 ZGB in the register of retention at the respective domicile or registered office of the customer up to this date, for which the customer gives his written consent upon first request. The customer is aware that by opening the sealed packaging of a software, the customer acknowledges the license terms of the manufacturer and at the same time any subsequent return and/or exchange are excluded with the opening.
Valid from 01. May 2014
