These “General Terms and Conditions for Hosting and Application Service Providing (ASP)” regulate 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
With his consent (in writing or electronically) or with the use of the service, the Customer accepts the “General Terms and Conditions Hosting and ASP” together with the further components (framework agreement, product and service certificate “PDS” resp. offers/order confirmation, usage guidelines, license terms).
2. xtendx’s Obligations and Rights
xtendx provides the customer with storage space and IT applications on a server connected to the Internet for publishing a web solution. Unless otherwise agreed, a maximum bandwidth of 100 Mbit (shared bandwidth) is available to the Customer. By placing an order, the Customer acknowledges the services to be provided by xtendx. The contract between the Customer and xtendx shall come into effect upon activation of the service or upon the start date defined in the service description (Service Description). xtendx may engage third parties for the provision of services. In this case, xtendx shall inform the Customer of any third parties relevant to the system.
3. Customer’s Responsibilities and Duties
3.1 The Customer may use the Service for publishing a web solution. The Customer undertakes to xtendx to comply with the Service in accordance with the instructions from the xtendx usage guidelines. The Customer is responsible for the content of the information (documents, images, sounds, computer programs, databases, audio/video files, etc.) that he himself and third parties communicating with him transmit, process, disseminate or make available for retrieval by xtendx. The Customer shall also be responsible for references (in particular links) to such information. If the Customer discovers any misuse, he/she shall inform xtendx immediately in writing.
3.2. The Customer bears the costs for the containment and rectification of malfunctions by xtendx if the Customer has requested the investigation and if the cause of the malfunction is attributable to the conduct of the Customer or the equipment used by the Customer. xtendx bears no costs for support by third parties.
3.3. xtendx reserves the right to take appropriate measures and sanctions in case of a concrete indication of illegal behavior and violation of the usage guidelines. If the request of xtendx ‘to restore the lawful condition or to behave lawfully’ is not complied by the Customer within a reasonable period of time, xtendx may, at its own discretion, suspend the service and block access to the Customer’s web solution and/or terminate the contract without notice in case of severe misuse. 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. Maintenance and Support
4.1. Support hours are Monday to Friday (excluding federal holidays) from 9 am to 5 pm. Customer requests to the Service Desk can be made by email (firstname.lastname@example.org) or by phone (Serviceline: 043 299 92 92) during the business hours listed above. Fault cases are handled Monday to Friday (excluding federal holidays) from 8 am to 6 pm.
4.2. Support outside the regular service hours will be charged according to time and effort. Minimum charge: CHF 250.00. A guaranteed response/processing time can be provided within the framework of a separate SLA (Service Level Agreement).
4.3. Consulting, training, individual updates of the software at the request of the Customer, or due to changes in the Customer’s infrastructure, are not covered by the standard support maintenance contract and are charged separately according to time and effort.
5. Prices, Invoicing, and Terms of Payment
5.1. The Customer’s payment obligation begins with the activation of the service. In case of doubt, the start date defined in the specifications will apply (however, always as from when the Customer begins to make productive use of the Services).
5.2. xtendx will invoice the Customer for the selected contract duration (periodicity) in advance. The invoice must be paid by the due date stated on the invoice form.
5.3. If the Customer fails to comply with the above payment terms, xtendx is entitled to charge default interest at the rate of 8% per annum. In addition, xtendx is entitled to terminate the Services pursuant to clause 10.3. Moreover, xtendx shall have the right to suspend the service as of the occurrence of the Customer’s default in payment.
5.4. xtendx reserves the right to change its prices at any time. xtendx will give the Customer timely notice of any changes that the Customer has the option of terminating the contract within the notice period for termination. Without any written notice of termination within this period, the changes shall be deemed to have been approved by the customer.
5.5. The Customer can never offset claims against xtendx with debts he has against xtendx.
6. Warranties and Liability
6.1. 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 any interruption or that the data requested by the Customer will be delivered via the internet without error or delay. Furthermore, xtendx gives no guarantee that the services provided by xtendx and/or any third parties will enable the Customer to achieve business purpose or any other purposes intended by the Customer.
6.2. 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.
6.3. 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 emails). In addition to that, xtendx shall not be liable for any damages incurred by the Client or the Client’s customers due to loss of data or the inability to access the internet or to send or receive information.
6.4. The Customer and xtendx shall be liable for the damages caused by the violation of their contractual and legal obligations.
7. Confidentiality and Data Protection
xtendx and the Customer mutually agree to keep all information and data confidential to which they get access during the course of preparing and performing this contract. 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.
8. Intellectual Property
8.1. xtendx grants the Customer and its agents a nontransferable and nonexclusive right to use and exploit the Services during the term of the contract.
8.2. 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.
9. 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 such an event. In such cases, any liability of xtendx is excluded.
10. Term and Termination of Contract
10.1. The contract period starts with the receipt of the order, is 12 months and is automatically extended for another year, unless the contract is terminated by registered letter with a notice period of 3 months to the end of the contract period or the extension.
10.2. If the Customer terminates the contract during the agreed minimum term, a refund of fees that were already paid can not be made.
10.3. 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 has to pay the fees owed up until the date when the contract would have ordinarily terminated.
10.4. 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 provides appropriate security for payment.
10.5. 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.
11. Additional Provisions
11.1. 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 changed 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.
11.2. Rights and obligations under this contract may be transferred to third parties only with the written consent of the other party. The transfer of the contract to a legal successor or affiliated company is excluded from this provision.
12. Applicable Law and Jurisdiction
For all legal relations between the Customer and xtendx, Regensdorf is agreed as the exclusive place of jurisdiction, unless mandatory statutory provisions provide otherwise. Swiss law is applicable.
May 20, 2021