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General terms and conditions of business

Updated 08/02/2020

THE CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE USE OF FAIRWALTER AND ALSO ENSURES CORRECT OPERATION THROUGH ORGANISATIONAL AND TECHNICAL MEASURES. TO THE EXTENT PERMITTED BY LAW, FAIRWALTER DISCLAIMS ANY LIABILITY TO CUSTOMERS OR ANY OTHER PERSON FOR ANY LOSS OF PROFIT, LOSS OF GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR NEGLIGENCE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK INTERRUPTION, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGES OR LOSSES. FAIRWALTER ALSO EXCLUDES LIABILITY FOR DAMAGES, EVEN IF FAIRWALTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

By completing the registration form ("Login") on Fairwalter on the Fairwalter AG homepage (hereinafter the "Provider"), you (hereinafter the "Client") accept without reservation the following general terms and conditions ("General Terms and Conditions" or "GTC").

The Provider reserves the right to supplement, amend and, if necessary, adapt the present General Terms and Conditions to the statutory provisions at any time without stating reasons. The current version of the General Terms and Conditions is available at any time at www.fairwalter.ch/rechtliches/agb. The changed conditions come into force upon publication on the homepage.

§ 1 SOFTWARE AS A SERVICE (SAAS) AGREEMENT

The provider provides its customers with SaaS services (Software-as-a-Service) via the Internet in the area of business software. The subject of the contract is:

  • The granting of rights of use to the software of the Provider for use via the Internet
  • The storage of customer data (data hosting)

§ 2 TRANSFER OF SOFTWARE

For the duration of this contract, the provider provides the customer with the "Fairwalter" software solution in its current version for use over the Internet against payment. For this purpose, the provider stores the software on a server that can be accessed by the customer via the Internet.

The Provider will continue to develop the software and will improve it through regular updates and upgrades. The current scope of functions is shown in the service description on the provider's website (fairwalter.ch).

The Provider continuously monitors the functionality of the software and eliminates software errors within the scope of technical possibilities.

§ 3 RIGHTS OF USE OF THE SOFTWARE

The provider grants the client the non-exclusive and non-transferable right to use the "Fairwalter" software for the duration of the contract within the framework of the SaaS services as intended.

The Provider is continuously developing the software and will improve it through updates. The current scope of functions is shown in the service description on the provider's website (fairwalter.ch).

The Provider continuously monitors the functionality of the software and eliminates software errors in accordance with the technical possibilities.

The customer may neither copy nor edit the software, unless this is expressly permitted in the current service description on the website. In particular, it is forbidden to install or store the software, even temporarily, on data carriers (hard disks or similar) of the hardware used by the customer (excluding RAM).

The customer is not entitled to make this software available for use by third parties, whether for payment or free of charge. The customer is expressly prohibited from making the software available to third parties in any form.

The customer undertakes to formulate his possible contractual relationships with third parties in such a way that the free use of the software by third parties is excluded.

In addition to the "Fairwalter" software, the client has the option of ordering various additional packages ("add-ons") from the provider. Such add-ons may in particular enable integration with third-party software. If access rights are required for the use of such an add-on, the customer expressly agrees to grant all necessary access rights when ordering the add-on.

§ 4 DATA-HOSTING

The Provider leaves the customer a defined storage space on a server in Switzerland to store his data. If the storage space is not sufficient for storing the data, the Provider will inform the customer in good time. Unless the customer subsequently orders further storage space against payment, data that exceeds the available storage space will no longer be stored.

The provider ensures that the stored data can be retrieved via the Internet within the scope of technical possibilities.

The customer shall not be entitled to transfer this storage space to a third party for use in part or in full, whether in return for payment or free of charge.

The customer undertakes not to store on the server any content whose provision, publication and use violates applicable law or agreements with third parties.

The Provider is obliged to take suitable and reasonable precautions against data loss and to prevent unauthorized access to the customer's data by third parties within the scope of technical possibilities. For this purpose, the Provider shall have regular backups made, the customer's data checked for viruses and firewalls installed.

In any case, the customer remains the sole owner of the data and can therefore demand that the Provider surrender some or all of the data during the term of the contract, without any right of retention on the part of the Provider. The surrender of the data is effected by transmission via a data network. The customer has no claim to the software suitable for the application/use of the data.

After termination of the contract, the customer is still entitled for one month (from the termination date) to demand the surrender of his data under the above provisions. The Provider is not obliged to store the Customer's data beyond this period. Should a customer demand the surrender of data after the one-month period has expired and the Provider still has the data, the Provider will surrender the data to the customer after payment of the actual costs incurred for this.

§ 5 SUPPORT & CUSTOMER SERVICE

Enquiries about the "Fairwalter" software should be sent exclusively by e-mail to the provider

The provider will answer the customer's enquiries about the "Fairwalter" software and other SaaS services within the agreed scope of services as soon as possible after receipt of the respective question by telephone or e-mail.

§ 6 DUTIES OF THE CUSTOMER

The customer is obliged to prevent unauthorised access to the software by third parties by taking appropriate precautions. For this purpose, the customer shall, if necessary, inform his employees or deputies of the compliance with copyright law. In particular, the customer shall instruct his employees not to make any copies of the software or pass on access data to third parties.

The customer undertakes to release the Provider from all claims of third parties which are based on the data stored by him and to reimburse the Provider for all costs incurred by the Provider due to possible infringements of rights.

The client is responsible for entering and maintaining the data and information required to use the SaaS services - without prejudice to the provider's obligation to back up the data.

The customer is obliged to check his data and information for viruses or other harmful components before input and to use state-of-the-art virus protection programs for this purpose.

When using the SaaS services for the first time, the client must generate a "User ID" and password himself, which are required for further use of the SaaS services. The client is obliged to keep the "user ID" and password secret and not to make them accessible to third parties.

The customer has to inform the Provider immediately of any unauthorized use of "User ID" and password or other attacks on security. In such cases the Provider will change the "User ID" and password of the Customer in agreement with the Customer.

The Customer must take all measures which are necessary at the Provider's dutiful discretion to maintain or improve the security of the data, software and network connections. For example, the User undertakes to change the password regularly, but at least every sixty (60) days.

§ SECTION 7 REDUCED

The customer undertakes to pay the agreed fee plus statutory VAT for the provision of software and data hosting in accordance with his subscription to the provider.

The fee is invoiced either at the beginning of the month or the beginning of the year. If the amount has not been paid after 30 days, access will be blocked until payment has been made.

The Provider is entitled to adjust the fees and service content by informing the Customer by e-mail on the next possible termination date. Reasons for such a change in services are in particular technical progress and further development of the software. If the customer does not wish to continue the contract at the changed tariffs, he is entitled to terminate the contract immediately by written notice within 14 days of notification of the change.

§ 8 WARRANTY/LIABILITY

THE CLIENT ASSUMES FULL RESPONSIBILITY FOR THE USE OF FAIRWALTER THE CLIENT ALSO ENSURES CORRECT OPERATION THROUGH ORGANISATIONAL AND TECHNICAL MEASURES. UNDER NO CIRCUMSTANCES SHALL FAIRWALTER BE LIABLE TO THE CUSTOMER OR TO ANY OTHER PERSON FOR ANY LOSS OF PROFIT, LOSS OF GOODWILL, OR FOR ANY INDIRECT OR SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES RESULTING FROM NEGLIGENCE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK INTERRUPTION, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGES OR LOSSES. IN NO EVENT SHALL FAIRWALTER BE LIABLE FOR ANY DAMAGES, EVEN IF FAIRWALTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The provider guarantees the functionality and operational readiness of the SaaS services in accordance with the provisions of these GTC.

The provider represents neither tenants nor landlords and accordingly assumes no guarantee and no liability for the correct conclusion and proper fulfilment of the leases processed via the fairwalter.ch SaaS platform. In particular, the data recorded in user accounts is not checked for correctness and completeness.

The Provider assumes no guarantee and no liability for the content of the published advertisements and any published links to external sites. The respective advertiser or site owner is solely responsible for the content of the advertisements and for the content of any externally linked sites.

The provider is entitled to block the storage space immediately if there is a justified suspicion that the stored data is illegal and/or violates the rights of third parties. A well-founded suspicion of illegality and/or violation of rights exists in particular if courts, authorities and/or other third parties notify the Provider of this. The Provider must immediately inform the customer of the removal and the reason for it. The block is to be lifted as soon as the suspicion is completely invalidated.

Within the scope of the statutory provisions, the Provider excludes any liability towards the Customer (or any third party), in particular for the fulfilment of its contractual and non-contractual obligations and for the loss of data and loss of profits (including negligence, to the extent permitted by law). This exclusion of liability also applies to damage caused directly or indirectly by the use of the "Fairwalter" software. In particular, the provider does not guarantee the technical availability of the Fairwalter software.

In all cases, regardless of the liability basis, the liability of the Provider is limited to the amount of the monthly access fees in the last twelve months before the damage occurred.

§ 9 TERM/TERMINATION/TERMINATION

The contractual relationship begins with the customer's login and registration. The payment obligation begins after the end of the free trial period. Only monthly subscriptions are offered.

The monthly subscriptions are concluded for an indefinite period of time and can be terminated by both parties in writing at the end of each month.

The parties are at liberty to terminate the contract immediately for good cause. An important reason for the immediate termination of this contract exists for the Provider in particular then,

  • if the customer becomes bankrupt or the opening of bankruptcy proceedings has been suspended due to lack of assets;
  • if the customer is in arrears with payment obligations arising from this contractual relationship to the extent of at least one month's remuneration and he does not meet his payment obligation even after setting a grace period of two weeks and threatening to terminate the contract;
  • if the customer culpably violates legal regulations when using the contractual services or encroaches on copyrights, industrial property rights or rights to a name of third parties;
  • when using the distributed services for the purpose of promoting criminal, illegal and ethically questionable activities by the customer

§ 10 DATA PROTECTION AND INTELLECTUAL PROPERTY RIGHTS
§ 10.1 Data protection & confidentiality

The Provider undertakes to maintain secrecy about all confidential processes, in particular business or company secrets of the customer, which have come to his knowledge in the context of the preparation, execution and fulfilment of this contract and not to pass on this information to external third parties without the authorisation of the customer. This applies to any unauthorized third parties, unless the disclosure of information is necessary for the proper fulfillment of the Provider's contractual obligations.

When using the SaaS service "Fairwalter", tracking data is collected. This data is collected and stored for marketing and optimisation purposes. They are not merged with other personal data in the context of this analysis.

The processing of data transmitted to the provider through the use of the application (registration, profile, contact requests and other usage data) is carried out in accordance with the provisions of the Swiss Data Protection Act. Within the framework of the legal provisions, the Provider is authorized to store, evaluate and use user data for operational purposes (in particular market research and market processing). The customer hereby expressly declares his agreement.

The provider is authorized within the scope of the legal provisions to store and evaluate user data for operational purposes (especially market research). The customer hereby expressly declares his agreement.

§10.2 Intellectual property rights

All intellectual property rights to the services, the "Fairwalter" software, the fairwalter.ch website and to documentation on the services remain the exclusive property of the provider.

The content, signs and trademarks of the Fairwalter software and the Fairwalter.ch website are subject - unless explicitly stated otherwise - to the provisions of copyright and trademark law and may not be distributed, altered or copied, either in whole or in part, without prior written consent from "Fairwalter" and without reference to the source. The pictures, sketches and other graphic representations included on fairwalter.ch may not be used without the prior written consent of "Fairwalter". Some of the pictures, sketches and other representations presented on the website are subject to the copyright of third parties. All brand names and trademarks shown or mentioned within the offer on fairwalter.ch and protected by third parties are subject without restriction to the provisions of the respective rights holder.

§ 11 FINAL PROVISIONS
§ 11.1 Notifications

All notifications, unless a stricter form is provided for in these provisions or by law, are to be sent in writing to the addresses given at the time of registration of the Customer or on the homepage of the Provider. The transmission via e-mail satisfies the written form requirement in each case. Communications from the Provider to the e-mail address provided by the Customer during registration are in any case considered as written communication.

The contractual partners are obliged to notify the other contractual partner of changes of address (including e-mail) without delay, otherwise notifications sent to the address last notified in writing shall be deemed to have been received in a legally effective manner.

§11.2 Applicable law & place of jurisdiction

This contract and all disputes arising in connection therewith shall be governed by internal Swiss law [[possibly] excluding the UN Convention on the International Sale of Goods of 11 April 1980].

All disputes arising in connection with this contract, regardless of their legal basis, shall be decided exclusively by the courts in Zurich.

§11.3 Severability clause

Should individual provisions of the GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these GTC. In place of an invalid provision, the corresponding legal regulation shall apply.

If a contract contains loopholes which cannot be closed by the present General Terms and Conditions, these are to be closed by means of a supplementary interpretation of the contract in such a way that the intended economic purpose is achieved.

However, if this would constitute unreasonable hardship for one of the contracting parties, the contract as a whole shall become invalid.

Zurich the 30.08.2018

FAIRWALTER is an internet service of the:
Fairwalter AG
Winterthurerstrasse 52,
CH-8006 Zurich

Do you have any questions about AGB & data protection? Please write to us