Terms and Conditions
1. Scope
The general terms and conditions ("terms") apply to all services and products ("services") of the Netbreeze GmbH (hereafter "Netbreeze"). Every natural or legal person or partnership which has concluded a contract with Netbreeze is referred to as customer. If this version conflicts with the German original text or in case of uncertainty in regards to the translation or the interpretation of the terms and conditions of business or in any other case of doubt, the German version shall be exclusively binding. The current and authoritative version of the Terms will be published online at www.netbreeze.ch/index.php?option=com_content&view=article&id=15&Itemid=44.
2. Services of Netbreeze
Content and scope of the services are subject of the contract documents (online orders, customer contracts). Netbreeze vouches for the careful and contractual performance of the agreed services. Netbreeze seeks to ensure high availability of the deployed infrastructure but can not take any guarantee for an uninterrupted, trouble-free performance. Netbreeze reserves the right to perform maintenance work at any time that can lead to temporary disruptions. To fulfill the contract Netbreeze may at any time engage third parties.
3. Services and benefits of the customer
The customer is responsible for the legal and contractual use of the services of Netbreeze and for the timely payment of any use. The customer is required to take reasonable and appropriate precautions to prevent damage to Netbreeze. Other obligations of the customer may be gathered from the contract documents. If there are in the opinion of Netbreeze justified indications of unlawful use of services, Netbreeze may urge the customer to the right and contractual use, stop their services without prior notice and compensation, terminate the contract without compensation, and claim compensation for damages. Netbreeze may take the same steps if there is reason to believe that the customer has violated or will violate the contract or has given inaccurate or incomplete information in the contract. If Netbreeze renounces the contract for any of those reasons, remains the customer liable for payment.
4. Use by third parties
The customer is responsible for all use of services, including for such of unauthorized third parties, and is obligated to pay the charge due to this.
5. Prices
The prices for the customer resulting from the use of services are subject of the contract documents and are owed at the beginning of the service, ie with the activation of the services by Netbreeze.
6. Billing & Payment
The invoicing by Netbreeze is carried out in the form agreed upon in the terms and conditions of the contract documents. The amount invoiced is to be paid until the date specified on the invoice or in the contract documents or within the specified period. The customer may up to that date raise reasonable objections to the invoice in writing. The bill counts afterwards as accepted without reservation.
7. Delay of Payment
If the customer has neither paid nor raised reasonable objections to the invoice in writing by the specified date or within the payment period, Netbreeze may interrupt the supply of all services without further notice, take other measures to prevent damage, and terminate the contract without notice and compensation. Netbreeze may charge fines for invoice reminders. The customer bears all other costs incurring to Netbreeze though the delay of payment. The customer may not allocate the claims of Netbreeze by any counter-claims.
8. Customer data
When handling data, Netbreeze abides by the applicable legislation, especially to the telecommunication and data protection law. Netbreeze may collect, store and process data needed to fulfil contractual obligations, to administer customer relationships, to ensure high service quality, for the safety of equipment and facilities, and for invoicing. Netbreeze may impart customer data to selected third parties for billing, collection and provision of contractual services. Netbreeze ensures that they also follow the legal provisions regarding data protection. Netbreeze takes precautions to protect the infrastructure from the interference by third parties. However, full protection from unauthorized access or eavesdropping can not be granted. Netbreeze can not be held liable for such interferences.
9. Confidentiality
Each contracting party shall treat all information which is not publicly known or generally available as confidential. Statutory disclosure requirements are exempt from this.
10. Intellectual property rights
For the duration of the contract, the customer receives the non-transferable, non-exclusive right to use the services of Netbreeze. All rights to existing intellectual property or intellectual property produced with respect to services of Netbreeze remain with Netbreeze or authorized third parties. Should the customer in this respect violate licensing rights of third parties and thus a claim is made on Netbreeze, is the customer obligated to keep Netbreeze harmless.
11. Liability of Netbreeze
In the case of claims irrespective of their legal basis and of claims from the customer in connection with any warranties, is Netbreeze liable for damage caused intentionally or by gross negligence and for personal injuries. For damages caused by Netbreeze by slight negligence, Netbreeze is liable up to the amount paid in the last year of the contract services, but shall not exceed the amount of CHF 20'000 .- per customer and year. Liability for property and consequential damages, lost profits and loss of data - if legally permissible – is excluded. Netbreeze shall not be liable for damages resulting from illegal or contractual use of its services. Can Netbreeze due to force majeure, such as for example natural hazards of particular intensity, strikes, riots, acts of war, terrorism, disruptions from third parties, power failure, virus attacks, unexpected regulatory restrictions, etc. not comply with their contractual obligations, the contract is delayed as long as the event of force majeure continues. A liability of Netbreeze is in these cases exempted.
12. Entry into force, duration and termination
The contract usually begins with the receipt of the written order of services by Netbreeze. In the case of orders via the internet begins the contract when the customer receives confirmation Netbreeze the corresponding contract in writing or via email. The contract is entered into force at any rate when the service is used by the customer. Contracts concluded with indefinite periods can be terminated by either party with written notice within 30 days of the end of the quarter. Contracts with a defined period may be terminated with a period of three months to the end of the specified deadline. If the contract is not terminated at the defined deadline, the defined period of the contract is tacitly extended by a year. If a certain period of contract was declared and the customer terminates the contract before its expiration, they owe Netbreeze the fee for the unused services of the remaining time, if not otherwise agreed upon in the contract documents. Netbreeze can terminate the contract after serious breaches of contract by the customer at any time without notice or compensation.
13. Contract changes
Netbreeze reserves the right to adjust their services, their prices and these terms at any time. Netbreeze gives the customer due notice about the changes. In the case of a contractually agreed minimum period has the customer the right to terminate the contract on the date of entry into force of the amendments to the contract without financial consequences of terminating it prematurely. Without written notice are the changes to the contract approved by the customer. If the tax rates change (in particular VAT), is Netbreeze entitled to adjust their rates accordingly. In this case has the client no right to early termination. The customer may transfer rights and obligations of this agreement to third parties only with the written consent of Netbreeze. Netbreeze may transfer this contract without the consent of the customer.
14. Other provisions
The invalidity of any single clause is without effect on the validity of the remaining clauses. The parties make if necessary a special agreement which comes closest to the invalid clause. Side agreements, amendments and supplements to this contract, in particular the terms and conditions, including this clause, must be in writing to be valid and include a reference to the clause to be amended and the legally valid signatures of the parties. Exempt from this are the provisions in clause 13 of the terms.
15. Governing Law and Jurisdiction
This contractual relationship is subject to Swiss law with the exclusion of the Vienna Sales Convention (UN-Convention on the Contracts for the International Sale of Goods, CISG). Jurisdiction is Zurich. Netbreeze has the right to sue the customer before any other competent court.
Date: 28th Feb 2011
