TERMS AND CONDITIONS (GTC)

ProCloud AG, Sägestrasse 50, 5600 Lenzburg

1. Condition of the contract

1.1 These General Terms and Conditions of Business (hereinafter referred to as “General Terms and Conditions”) regulate the mutual rights and obligations of ProCloud AG, Sägestrasse 50, 5600 Lenzburg (hereafter “ProCloud”) and the customer of ProCloud (hereinafter “Customer”).

1.2 These General Terms and Conditions serve as a basis for the contract and shall also apply without express reference for all contracts between the parties. Any business or purchasing conditions of the customer shall be deemed to be roadworthy. Agreements that deviate from these General Terms and Conditions, including this form clause, must be in writing.

1.3 ProCloud is entitled to adapt these General Terms and Conditions and Services to the extent that ProCloud considers this to be reasonable for technical reasons or due to the development of the market, thereby unduly affecting the interests of the customer – in particular the adequacy of performance and consideration.

2. Start, duration and termination of the service contract

2.1 The contract with ProCloud concerning the use of ProCloud services comes with the sending of the online order form or in another electronic way or by signing a written order form / contract.

2.2 The service contract shall be concluded indefinitely, unless otherwise agreed in the service contract.

2.3 Each contracting party may terminate the service contract by giving 30 days’ notice by registered letter at the end of the billing period, but for the first time at the end of the minimum contract period stipulated in the contract of service between the parties.

2.4 For important reasons, both parties may terminate the service contract at any time with immediate effect. This applies in particular if ProCloud’s available services or third-party services related to this service are used, accessed, or transmitted to unauthorized third parties, or if ProCloud’s or third parties’ usage is disregarded .

3. ProCloud services

3.1 ProCloud offers services of all kinds in the Internet area and provides its services in the framework of the contract with the customer and the resources available at the company.

3.2 ProCloud’s performance is determined by the ProCloud’s performance specifications and the contracts with the customer.

3.3 The Internet is a global system of independent, interconnected networks and computers. ProCloud has influence only on those systems that are in their network and therefore can not guarantee faultless services.

3.4 ProCloud provides the services professionally and carefully according to the state of the art. The services are always open to the participant for 24 hours and 7 days per week. However, ProCloud can not guarantee the interruption and disruption of the service or the absolute protection of its network against unauthorized access or unauthorized access. In the case of disruptions in the connection and use of services, the participant is only entitled to withdraw from this contract, provided that he has immediately informed ProCloud of the disruption in writing and has set a reasonable deadline twice. Intermittent interruptions of the services, in particular as a result of maintenance work by the relevant media supplier, shall not be considered as disruptions.

3.5 performance delays due to force majeure and events that make ProCloud substantially more difficult or impossible to perform – and the loss of communications networks and gateways of other operators.

3.6 ProCloud supports the customer in the production of a stable condition for the use of the services at the respectively valid hour approach.

3.7 ProCloud shall undertake to undertake measures to correct faults and malfunctions of the services within the normal working hours of ProCloud’s office. The usual working hours are the Monday to Thursday, 8 am – 5 pm and Friday 8 am – 4 pm, with the exception of federal holidays and the cantonal holidays at the headquarters of ProCloud as well as the time of 24.12. To 2.1. Outside the office hours, the service level agreement selected by the customer applies.

3.8 The customer shall only be entitled to a refund of the services invoiced by ProCloud, if this has been agreed in advance in writing in a single contractual service level agreement. In the case of all other failures of services, no remuneration is paid for already paid fees.

3.9 Any claims for reimbursement by the customer expire if a failure is not reported to ProCloud in writing within 30 days after the end of the relevant calendar month and ProCloud has been charged with a corresponding fee reimbursement. In the case of justified claims, ProCloud will always charge it in the form of a credit with future subscription fees. The customer’s proof of non-availability lies with the customer.

4. Obligations of the customer

4.1 The first level support is fulfilled by the customer. ProCloud AG is available for office hours at the office hours, unless otherwise agreed.

4.2 Upon conclusion of the contract the customer commits himself to the acceptance and payment of the contractual products / services.

The customer waives the dissemination of information and picture material with unlawful content. The following shall be prohibited:

• Calls for violence within the meaning of Article 259 of the Criminal Code

• Racial Discrimination within the meaning of Article 261 of the Criminal Code

• Instructions or incitement to criminal behavior

• Unauthorized gambling in the sense of the Lottery Act

• Inconsistent statements about a third person or person who violates a person
Publications

• Information which infringes copyright, related rights or other intellectual property rights of third parties.

• The ProCloud services do not harm or harass third parties,
In particular unauthorized access to third-party systems (hacking), the spread of viruses of all kinds or the unsolicited sending of e-mails (spamming, junk mail, etc.)

• Content of erotic character must be protected against the access of minors by means of appropriate measures. The operation of so called downloadsites is in principle undesirable and in any case with the provider in advance to clarify.

• The operation of websites with copyrighted content is prohibited, unless the operator is in possession of legally valid licenses, which allow him to sell in Switzerland. Such licenses shall be submitted to ProCloud upon request. ProCloud reserves the right to block the contents of the content at its own discretion and to terminate the agreement without notice, without reimbursing any payments already made.

• It is forbidden to search networks for open ports (accesses) of external computer systems;

• By configuring server services (such as proxy, news, mail, and web services) to cause unintentional data replication (dupes, mail relaying).

• Falsify mail and newsheaders as well as IP addresses;

• Download sites or pages that trigger high traffic.

• Download / Synchronize folders or folders that trigger high traffic.

5. Warranty

5.1 If ProCloud sells third-party products (in particular hardware and software) to the customer, the latter benefits from the same warranty granted to ProCloud by the third-party manufacturer. Expenses of ProCloud from consequential damages due to defective hardware or software are not covered by the manufacturing guarantee. Similarly, the expenses incurred by ProCloud’s hardware and software at third parties are not covered by the manufacturing guarantee. This includes in particular the reinstallation of programs, the configuration of hardware components and other expenses related to the delivery of the hardware and software.

5.2 Guaranteed payments are generally made at ProCloud’s domicile during normal business hours by suitably trained personnel. ProCloud shall pay the Customer the necessary transportation and / or travel costs for the provision of guarantee services.

6. Rights to use of software and product or service names as well as “managed services”

6.1 Unless explicitly agreed otherwise, the following provisions shall apply to software and product and / or service terms regarding the use of services managed by ProCloud: The customer shall be granted a non-exclusive, non-transferable and non-transferable right to use software and goods or services for the Own, internal use. Complementary rules on software use

Hereby incorporated. The software may not be made accessible to third parties. For standard products of third parties, their license provisions shall apply insofar as they contain further restrictions.

6.2 If, by way of derogation from para. 6.1 is agreed upon here beforehand that rights of use for software can be transferred to third parties, all copies must bear the original copyright notice as well as all other protective notices.

6.3 In the event that any claims for infringement of industrial property rights are claimed in connection with the object of the contract (software development or other projects), the customer is obliged to notify ProCloud in writing within 5 calendar days. The customer may not process any proceedings without ProCloud’s prior consent and ProCloud shall, upon request, provide the defense against such claims, in particular the conduct of the proceedings, including a settlement agreement.

6.4 If the use of the object of the contract by the customer or parts thereof is prohibited by a court decision or if in the opinion of ProCloud an action for the infringement of protective rights threatens, ProCloud has the right to choose between the following measures:

• Alter the subject matter of the contract in such a way that it no longer infringes any intellectual property rights;

• give the customer the right to continue using the object of the contract;

• replace the object of the contract with a contractual object which does not infringe any industrial property rights and which is either equivalent to the requirements of the customer or equivalent to the superseded object of the contract;

• withdraw the object of the contract and reimburse the customer the paid remuneration, minus a reasonable amount for the use and the loss of value.

6.5 The above obligation does not apply to contracts for which the infringement of the intellectual property rights is based on or on a concept originating from the customer

That the object of the contract has been altered by the customer or operated in conjunction with non-ProCloud products.

7. Prices, remuneration, terms of payment, reservation of title

7.1 All agreed prices for ProCloud services are denominated in Swiss francs and are exclusive of VAT and other public charges.

7.2 The terms of payment are determined by the agreement with ProCloud. After the payment period has expired, the customer is automatically in default, without any warning.Any objections to the invoice must be made in writing by the customer within the period of payment. If no objections are made within the time limit, the invoice shall be deemed to have been approved by the customer.

7.3 Prices for ProCloud services are shown in the current price list. Price changes will be communicated to the customer as early as possible. ProCloud may make reasonable price changes during the term of the agreement if significant cost factors have changed. ProCloud shall have the same right in the case of an unusually intensive or special cost-causing amount of the use of the ProCloud services by the customer.

7.4 The Customer shall reimburse ProCloud for any incidental costs.

7.5 Delivered goods remain the property of ProCloud until full payment of the purchase price. ProCloud reserves the right to have a proprietary reservation filed in the relevant register. The pledging or safeguarding of the goods by the customer is not permitted. Industrial property rights are not transferred to the customer. Processing or conversion will always take place for ProCloud as owner or entitled, but without obligation for them. If ProCloud’s (co-) ownership expires as a result of a combination or sale, ProCloud shall assume that the resulting claims on the part of ProCloud shall be transferred to ProCloud in the case of a proportionate share.

7.6 Services that are offered unlimited (storage, traffic, computing power, support, etc., depending on the product) are subject to the Fair Use Policy. If a customer exceeds twice the capacity of the average of comparable customers, this can lead to additional costs. In any case, ProCloud will get into conversation with the customer first.

8. Delay

8.1 In the event of a default of payment by the Customer, ProCloud shall be entitled to suspend or terminate its services. In this case, the customer shall not be entitled to any performance claims by ProCloud and shall be obliged to pay the periodic fees. A processing fee of at least CHF 50.00 will be charged for re-activation.

8.2 In the event of a delay in payment, ProCloud is also entitled to charge default interest of 12%.

8.3 If the Customer is in arrears with the payment of the charges or a part thereof for two consecutive periods, ProCloud may terminate the contractual relationship without notice.

8.4 ProCloud reserves the right to assert further claims for default of payment, in particular for costs incurred by ProCloud by means of dunning and enforcement proceedings.For reminders, ProCloud may charge reminder fees of at least CHF 20.00 per reminder.

9. Clearing and Retention Rights, Assignment, Transfer

9.1 ProCloud may charge your claims against customer claims. The customer is not entitled to charge any claims against ProCloud’s claims.

9.2 The customer undertakes to waive the right to enforce retention rights against ProCloud.

9.3 All contractual rights and obligations are neither transferable nor relinquishable to third parties.

10. Disclaimer and limitation

10.1 ProCloud does not grant you any continuous disruption-free operation or trouble-free operation at any given time for your services. Liability for interruptions to operations, in particular the repair, maintenance or introduction of new technologies, is hereby excluded.

10.2 ProCloud does not warrant the integrity of the stored or transmitted data via its system or the Internet. Any warranty for inadvertent disclosure, damage, or deletion of data sent, received, or stored on your system is excluded. Likewise, any liability for direct or indirect damage or consequential damage, namely loss of business failure, are excluded and any warranty terms, which result regardless of the causes of unlawful access by third parties, especially cyberattacks and any impairment such as data loss, breakdowns and the like result.

10.3 Procloud shall not be liable for any direct or indirect damages arising out of the use or failure of the services provided / provided by ProCloud or any other unlawful interference by third parties on the data, including cyberattacks.

10.4 ProCloud shall not be liable in particular in the following cases:

• Direct or indirect consequential damage to the ProCloud infrastructure.

• electronic messages which are not transmitted, transmitted, or intercepted illegally by third parties;

• Missing or inadequate secrecy of encrypted data.

• processing errors during the processing of business transactions via
Internet (electronic commerce), in particular in the case of transmission errors of credit card data or other payment information;

• Legal disputes resulting from domain name registrations or domain name deletions that ProCloud has ordered on behalf of the customer.

• For damage to or loss of data or documents. It is up to the customer to ensure that appropriate backup copies are available. The customer undertakes to protect and indemnify ProCloud AG in the event of third party claims.

10.5 Any liability of ProCloud and its vicarious agents for a certain technical or economic success, for indirect damages such as loss of profit, claims of third parties as well as for consequential loss of production, loss of data and liability for slight negligence are expressly excluded.

10.6 ProCloud is in no way obliged to check the contents of customer offers for their legal conformity.

10.7 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, ProCloud has the function of consulting and license processing.

11. Privacy Policy

Customer data are processed according to the Data Protection Act. The customer expressly permits ProCloud to use customer data for marketing purposes (eg for customer information about new services or products). ProCloud does not sell or rent customer data in parts or as a whole to third parties. Only data are stored which are necessary for processing the supplier / customer relationship.

12. Confidentiality

12.1 The parties undertake to keep confidential information of the contract partner confidential and to make accessible to third parties who are not authorized to do so. In particular, the content of contracts, including annexes, shall be deemed to be confidential.

12.2 ProCloud shall be entitled to transfer customer addresses to third parties, in particular to criminal authorities, in the event of the determination of acts of law or conduct which is contrary to the law.

13. Place of Performance, Jurisdiction, Applicable Law, Miscellaneous

13.1 The place of fulfillment is CH-5600 Lenzburg.

13.2 Exclusive court of jurisdiction for any disputes arising from or on the basis of these General Terms and Conditions or the customer contract is CH-5600 Lenzburg.

13.3 The contractual relations between the parties are subject exclusively to Swiss substantive law.

13.4 Should provisions of the present GTC be null or invalid, the remaining provisions shall continue to apply. In this case, null or invalid provisions shall be replaced by legally effective provisions which, in their economic effects, are as close as legally possible to those of the ineffective.

13.4 Should provisions of the present GTC be null or invalid, the remaining provisions shall continue to apply. In this case, null or invalid provisions shall be replaced by legally effective provisions which, in their economic effects, are as close as legally possible to those of the ineffective.

 

V 1.2 (9.8.18)

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