ProCloud AG, Sägestrasse 50, 5600 Lenzburg
1. Subject of the General Terms and Conditions
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) govern the mutual rights and obligations of ProCloud AG, Sägestrasse 50, 5600 Lenzburg (hereinafter referred to as “ProCloud”) on the one hand and the Customer of ProCloud (hereinafter referred to as “Customer”) on the other.
1.2 These General Terms and Conditions also apply without express reference to all contracts between the Parties. Any terms and conditions of business or purchase of the Customer shall be deemed to be null and void. Agreements that deviate from these Terms and Conditions, including this written form clause, must be in writing, excluding email.
1.3 The present GTC together with the order form (offer), the service descriptions and the service level agreement constitute the respective service contract.
In case of contradictions between the documents, the following ranking applies:
- Order form / Accepted offer / Accepted contract
- General Terms and Conditions (GTC)
- Service Level Agreement
2. Start, duration and termination of the service contract
2.1 The contract with ProCloud for the use of its services comes about with the sending of the online order form or in another electronic form or with the signing of a written order form or contract.
2.2 The service contract is concluded for a limited period, unless otherwise agreed.
2.3 Without notice, the service contract will be automatically renewed for the same agreed term 3 months before expiry. In any case, termination of the contract is possible for the first time at the end of the minimum contract period stipulated in the service contract between the parties.
2.4 For good cause, both parties may terminate the service contract at any time with immediate effect. This applies in particular if the available services of ProCloud or the third-party services purchased through this service are legally, contractually or objectively related, used, made accessible to unauthorized third parties or passed on and if these GTC, in particular no. 4.3 are violated by ProCloud or third parties.
2.5 Upon termination of the service agreement, for whatever legal reason, ProCloud will keep the data up to the last hour of the paid contract period so that the Customer can migrate it. The data will subsequently be deleted.
3. Benefits of ProCloud
3.1 ProCloud provides its services as part of the service contract with the Customer and the operational resources.
3.2 ProCloud’s obligation to provide services results in concrete terms from ProCloud’s service descriptions as well as from the other contractual components with the Customer.
3.3 ProCloud provides the services professionally and carefully according to the current state of the art. The services are generally open to the participant for use 24 hours a day, 7 days a week.
3.4 ProCloud undertakes, within the normal working hours of the ProCloud office, to take or implement measures to remedy faults and malfunctions of the services. The normal working hours are the weekdays Monday to Thursday, 8:00 a.m. – 5.00 p.m. and Friday 8:00 a.m. – 4:00 pm, with the exception of the Swiss federal holidays and the cantonal holidays at the headquarters of ProCloud as well as the period from December 24 to January 2. Outside office hours, the service level agreement chosen by the Customer applies.
3.5 ProCloud assists the Customer in establishing a stable state to use the services at the applicable hourly rate.
4. Customer obligations
4.1 First Level Support is performed by the Customer. For IT managers, ProCloud is available during office hours, unless otherwise agreed.
4.2 Upon conclusion of the contract, the Customer undertakes to accept and pay for the contractual services / products. You can adjust the services you receive at any time. During the contract period, 75% of the originally booked services must be maintained.
4.3 The Customer waives the dissemination of information and images with illegal content. The Customer does not use the services of ProCloud in an illegal manner. The following things are especially, but not exclusively, prohibited:
- Calls for violence in the sense of Art. 259 StGB (German Penal Code)
- Racial discrimination within the meaning of Art. 261 StGB
- Guidance or incitement to criminal conduct
- Unauthorized gambling in the sense of the lottery law
- Defamatory statements about third parties or infringing publications
- Information that infringes copyrights, related rights or other intellectual property rights of third parties.
- Using the ProCloud services to damage or harass third parties, in particular to penetrate unauthorized third-party systems (hacking), spreading viruses of any kind or sending unsolicited emails (spamming, junk mail and the like).
- Content of an erotic nature must be protected against the access of minors by means of suitable measures. The operation of so-called download sites is basically undesirable and must always be clarified with the provider in advance.
- The operation of websites with copyrighted content is prohibited, unless the operator is in possession of valid licenses, which allow him to operate in Switzerland. Such licenses must be provided to ProCloud upon request. ProCloud reserves the right to terminate such content at its sole discretion and terminate the Agreement without notice, with no refund of any payments already made.
- It is necessary to search networks for open ports (accesses) of foreign computer systems;
- By configuring server services (such as proxy, news, mail, and web server services) to cause unintentional replication of data (Dupes, Mail Relaying).
- Fake mail and newsheaders as well as IP addresses;
- Download pages or pages that trigger high traffic.
- Download / sync folders or folders that trigger high traffic.
5. Prices, fees, payment, retention of title
5.1 All agreed prices for ProCloud services are in Swiss francs and exclude statutory VAT and other public charges.
5.2 Invoices are payable within 14 days, unless otherwise agreed in writing. After this deadline, the Customer will automatically be in default with no further warning necessary. Any objections to the invoice must be made in writing by the Customer within the payment period, otherwise the invoice is considered approved.
5.3 The prices for the ProCloud services are based on the current price list. Price changes will be communicated to the Customer as soon as possible. ProCloud may make price changes at any time during the contract period if cost factors have changed. ProCloud shall have the same right in the event of unusually intensive or special costs for the Customer’s use of ProCloud Services.
5.4 Delivered goods remain the property of ProCloud until full payment. ProCloud may register a reservation of title in the relevant registry. Pledging or transferring the goods by the Customer is not permitted. Intellectual property rights do not pass to the Customer before full payment. Processing or transformation always takes place for ProCloud as owner or beneficiary, but without obligation for them. If ownership of the ProCloud expires as a result of a connection or sale, it shall be deemed agreed that the resulting claims of the Customer – in the case of a connection in proportion to value – shall be transferred to ProCloud.
5.5 Services offered on an unlimited basis (storage, traffic, computing power, support, etc., depending on the product) are subject to the Fair Use Policy. Fair Use Policy means that a Customer does not exceed twice the amount of benefits received by the average of comparable customers. If this is the case anyway, this can lead to additional costs. If this is the case, ProCloud will first attempt to speak with you about this matter.
6.1 In the event of default of payment by the Customer, ProCloud is entitled to discontinue or block its services. In this case, the Customer is not entitled to performance of services by ProCloud and is obliged to pay the periodic fees. A processing fee of at least CHF 50.00 will be charged to restore service.
6.2 In the event of late payment, ProCloud charges default interest of 12%.
6.3 If the Customer delays payment of the fees or a part thereof for two consecutive billing periods, ProCloud may terminate the contract without notice.
6.4 The Customer must reimburse ProCloud for collection, legal and court costs.
ProCloud reserves the right to assert further claims for late payment. ProCloud may charge reminder fees of at least CHF 20.00 per reminder.
7. Offset and retention right, assignment, transfer
7.1 ProCloud may offset its claim against counterclaims of the Customer. The Customer is not entitled to offset any counterclaims with claims of ProCloud.
7.2 The Customer agrees to waive the assertion of retention rights to ProCloud.
7.3 All contractual rights and obligations are – unless otherwise agreed – neither transferable nor can they be assigned to third parties.
8. Intellectual property rights
8.1 Unless otherwise agreed in writing, the Customer is granted a non-exclusive, unlimited and non-transferable right to use software and goods or service marks for his own internal use. Additional regulations for the use of software by the manufacturers are hereby included. The software may not be made accessible to third parties. The license terms for standard third-party products apply to the extent that they contain further restrictions.
8.2 Deviating from para. 8.1 it is hereby agreed that rights of use for software can be transferred to third parties, however all copies must bear the original copyright notice and all other protective annotations. You are responsible for the software you use and its correct licensing.
8.3 If, in connection with the subject matter of the contract (software development or implementation of other projects), claims of third parties are asserted against the Customer for infringement of intellectual property rights, the Customer is obliged to notify ProCloud in writing within 5 calendar days. The Customer may not conduct any litigation without the prior consent of ProCloud and, upon request, must provide ProCloud with the defense against such claims, including litigation, including settlement settlement.
8.4 If the use of the subject matter by the Customer or parts thereof by a court decision is prohibited, or when an action for the infringement of IP rights according to the ProCloud, so ProCloud has the right to vote between following measures: i) change the subject of the contract such that it violates any intellectual property rights; (ii) the Customer gain the right, continue to use the subject of the contract; III) subject of the contract through a contract to replace, which infringe any intellectual property rights and which meets the requirements of the Customer or is equivalent to the replaced contract or (iv)) the subject of the contract take back and the Customer to reimburse the fee paid less a reasonable sum for the use and the loss of value.
8.5 The above obligation shall not apply to objects of contract for which the intellectual property infringement is based on a concept originating from the Customer or on the fact that the subject matter of the contract was changed by the Customer or operated together with contractual objects not supplied by ProCloud.
9.1 ProCloud only affects those systems that are in their network. Therefore, ProCloud cannot assume any liability for the interruption or failure-free functioning of the services or for absolute protection of its network against unauthorized access by third parties (eg cyberattacks, DDos, etc.) or unauthorized interception or spying or other impairments.
9.2 If ProCloud sells third-party products (in particular hardware and software) to the Customer, the Customer has the same manufacturer’s warranties as ProCloud. Expenses incurred by ProCloud for consequential damage resulting from defective hardware or software are not covered by the manufacturer’s warranty. Nor are expenses incurred after delivery of third-party hardware and software by ProCloud to the Customer covered by the manufacturer’s warranty. This includes, in particular, the reinstallation of programs, configuration of hardware parts and other expenses associated with the delivery of the hardware and software. These expenditures are to be replaced by the Customer of the ProCloud according to the current price list.
9.3 Warranty services are generally provided during the normal business opening hours at ProCloud’s domicile by suitably trained specialist staff. Any transportation and / or travel costs incurred by ProCloud for the provision of warranty services will be borne by the Customer.
9.4 In the event of disruptions in the purchase and use of services, the Customer is only entitled to withdraw from this contract, provided that he immediately informs ProCloud in writing of the disruption and twice has set a reasonable deadline for rectification. Advertised service interruptions, in particular as a result of maintenance by the relevant media supplier or force majeur, are not considered to be disruptions. Unless explicitly agreed, there will be no reimbursement of fees already paid. In the case of justified claims, ProCloud will always charge them in the form of a credit note with future subscription fees. The burden of proof regarding the unavailability lies with the Customer.
9.5 ProCloud does not guarantee data integrity. Any warranty for accidental disclosure, damage or deletion of data sent or received through your system or stored there will be excluded.
9.6 The Customer must attach complaints within 30 days, otherwise the warranty rights are considered forfeited.
9.7 Any warranty exceeding the scope of para. 9 is waived.
10. Liability of ProCloud
10.1 ProCloud is liable for property damage or personal injury inflicted intentionally or grossly negligently within the scope of this contract as well as for damages resulting from product liability.
10.2 Any further liability for direct or indirect damages, for direct or indirect damages, for consequential damages, lost profits, third-party claims and consequential damages resulting from loss of production, data loss or damage and liability for slight negligence shall, to whatever extent permissible, be permitted by law completely excluded.
10.3 Unless already excluded in para. 10.2, ProCloud shall only be liable within the scope of the warranty and for whatever legal reason, for damages that can be proven to be attributable to culpable conduct on the part of ProCloud, up to a maximum of the average monthly amount of the agreed service owed in the preceding 12 months.
10.4 ProCloud is expressly not liable in the following cases:
- Direct or indirect consequential damage
- Consequential damages
- Electronic messages that are not transmitted correctly, not at all, in an unlawful manner or intercepted by third parties;
- Missing or inadequate secrecy of ciphered data;
- Processing errors in the processing of business transactions via the Internet (electronic commerce), in particular not in the case of transmission errors of credit card data or other payment information;
- Legal disputes arising from domain name registrations or domain name deletions initiated by ProCloud on behalf of the Customer;
- For damage to or for loss of data or documents. Customers are responsible for ensuring that all data is backed up. The Customer undertakes to protect ProCloud AG and to indemnify it in the event of third-party claims;
- lack of consent of the Customer’s employee regarding access to the Customer;
- the improper use of their communication infrastructure by third parties and third-party intervention (e.g., computer viruses, unauthorized changes by hackers and sending emails), as well as cyber risks.
10.5 In addition, any liability of ProCloud employees, bodies and ProCloud vicarious agents (third parties / subcontractors) is excluded.
11. Customer Liability
11.1 The Customer is fully liable for the software used in his environment. It is up to the Customer to ensure that the software used is licensed correctly, the ProCloud has the function of consulting and license processing.
11.2 The Customer is liable to ProCloud for the unlawful use of the services and that he has obtained all necessary consent from data subjects and / or authorizations from authorities.
12. Force Majeur
12.1 ProCloud is not liable for any delays or disruptions to performance or for any damage caused by events for which ProCloud is not responsible, or which make the performance substantially more difficult or impossible, and which are not unavoidable, such as natural disasters of any kind, riot, blockade, fire, civil war, embargo, earthquake, hostage-taking, war, revolution, sabotage, strikes, terrorism, traffic accidents or production disruptions, such as the failure of communication networks and gateways of other operators.
13. Data protection and information security
13.2 ProCloud may access your personal information as part of support and maintenance. Since this is a processing within the meaning of data protection legislation, an agreement on order processing (SLA) must be agreed. If no express agreement is made, the SLA applies as published on our website: https://www.procloud.ch/avv.
14. Data protection and information security
14.1 The Parties undertake to keep confidential information of the Contracting Party secret and in particular not to make it accessible to unauthorized third parties. In particular, the content of contracts including attachments is considered confidential.
14.2 ProCloud has the right to assign Customer addresses to third parties, namely to criminal authorities, in the event of a legal or immoral act. Customer warrants to ProCloud that it has the consent of its employees to access its employees’ email accounts and can provide evidence of this upon request.
15. Final provisions
15.1 Place of performance is CH-5600 Lenzburg.
15.2 Should any provision of these General Terms and Conditions be void or ineffective, the remaining provisions shall continue to apply. In this case, the void or legally invalid provisions will be replaced by one that is legally valid and as close as legally possible to the economic impact of the invalid one.
15.3 ProCloud is entitled to amend these GTC and Services at any time if ProCloud deems this reasonable for technical reasons or due to market developments or supplier conditions and if the interests of the Customer – in particular the appropriateness of performance and consideration – do not become disproportionate as a result.
15.4 All disputes, disagreements or claims arising out of or in connection with these GTC or the service contracts must first be submitted to an arbitration procedure. Both Parties undertake to actively and constructively participate in the mediation process.
15.5 Should the Parties fail to reach an agreement in accordance with para. 15.4, the exclusive place of jurisdiction for any disputes arising out of or based on the present GTC or the service contract is CH-5600 Lenzburg.
15.6 The contractual relationships between the Parties are governed exclusively by Swiss substantive law, excluding the conflict of law rules.
V 1.9 (11th April 2019)