General Terms and Conditions (GTC)
Web development and hosting instride AG.
General information
instride AG is a publishing and web development company that provides the following services in particular under the instride brand:
a) Consulting including the development of concepts
b) Implementation of workshops
c) Creation of individual websites on the basis of open source software
d) Licensing of additional tools developed by instride AG
e) Offer of standard templates for websites and adaptation to the individual needs of the customer
f) Web hosting
Scope of application and validity
These General Terms and Conditions (hereinafter referred to as «GTC») apply to all work results, services and products provided by instride AG under the instride brand. Deviations from these GTC are only valid if they are made in a written agreement signed by both parties and with reference to these GTC. The GTC are an integral part of all offers and contracts between the Customer and instride AG. The customer's GTC are expressly excluded.
Subject matter of the contract
The services owed by instride AG are regulated in detail in the individual agreement (offer accepted by the customer, written contract or order confirmation).
The contract between instride AG and the Customer consists of the following documents:
a) Individual agreement
b) Acceptance protocol
c) Offer
d) SLA service package document
e) Price list for hosting and standard solutions (Yamiro)
f) General Terms and Conditions.
In the event of a contradiction between the respective documents, the above order of precedence shall apply.
Conclusion of contract
Offers from instride AG are binding for three (3) months from the date of issue. The contract is concluded when the customer accepts the offer in writing or verbally. In any case, the contract is concluded when the customer accepts the provision of services by instride AG.
Offers are prepared on the basis of the information provided to instride AG by the customer at that time. Should it later transpire that further services are necessary or services have to be adapted due to additional or changed information, these shall be deemed additional services and shall only be provided against additional remuneration (see Section 7 «Changes to services»).
Creation of websites
Services of instride AG
instride AG creates individual websites for customers on the basis of open source software. In addition, instride AG offers its customers standardized templates for websites, which can be adapted to customer requirements. The services to be provided by instride AG, the specific project process and the project organization are regulated in the individual agreements. The expenses for presentations, workshops and concepts, which are provided prior to the conclusion of the contract in accordance with Section 4 above, shall be invoiced at the applicable hourly rates.
Cooperation in projects
The Customer shall designate a contact person who is authorized to make decisions and act on behalf of the Customer. The customer is also obliged to provide the personnel resources required for the implementation of the project and to provide instride AG with all necessary information in good time (see Section 8).
Deadlines
Deadlines are generally extendable. They are only binding if this is regulated accordingly in these GTC or expressly agreed and marked as such in the individual agreement.
If one party recognizes that an agreed deadline cannot be met, it shall inform the other party of this as early as possible.
Deadlines that have been expressly agreed as binding can only be postponed with the consent of both parties. Consent may be refused in justified cases.
If instride AG culpably fails to meet a binding deadline, the Customer must give instride AG a warning and grant a reasonable grace period. If instride AG fails to provide the agreed service within a second reasonable grace period, it shall be in default.
If delays occur for which instride AG is not responsible (but for which the Customer, force majeure, third parties, etc. are responsible), the deadlines shall be postponed accordingly.
Inspection and acceptance
The customer is obliged to carefully check the services of instride AG for correctness and to report any defects immediately in writing. With the declaration "Good to print or good to screen", the service of instride AG shall be deemed to have been accepted. If the Customer fails to notify instride AG within 10 days of delivery / provision / service, the service shall be deemed approved in all functions.
The Customer may only refuse acceptance in the event of serious defects. In this case, the defects must be rectified by instride AG within a reasonable period and the work result must be made available again for acceptance.
If the defects cannot be rectified even after at least two reasonable grace periods have been set, the customer may demand a reasonable price reduction. Rescission is expressly excluded.
If there are only minor defects when the work result is inspected prior to acceptance, the service shall be deemed to have been accepted. The defects shall be recorded and rectified free of charge within a reasonable period of time as part of instride AG's warranty obligation.
Copyrights and rights of use
The instride AG websites are created on the basis of open source software. The Customer is aware that he must comply with the corresponding licenses. The Customer can obtain information about the open source software used and the open source licenses used on the instride AG website at www.instride.ch.
In addition, the websites created by instride AG consist of software and software parts to which instride AG holds the rights. instride AG grants the Customer a non-transferable and non-exclusive right to use the software and software parts provided by instride AG in accordance with the contract and its intended purpose for the agreed duration (maximum contract term).
Unless otherwise agreed, the rights to the graphic design shall be held either by instride AG or by the third parties involved. instride AG also grants the Customer a non-transferable and non-exclusive right to use the graphic design in accordance with the contract and its intended purpose for the agreed duration (maximum term of the contract).
Maintenance and further development of the software
instride AG provides maintenance services against separate remuneration on the basis of a separate agreement in the SLA. The delivery of major releases is not included in the SLA and must be agreed and remunerated separately.
Hosting
Service content
instride AG provides the customer with storage space to the agreed extent on its servers in an external data center. The services are generally available to the customer 24 hours a day, 7 days a week.
Unless otherwise agreed, data backups of all data are created daily on a backup system in another data center. The data is stored retroactively for 5 days and then transferred again.
Service level
Unless otherwise agreed, the SLA Basic service package is included in the contract with the customer in accordance with the SLA Service Packages document. Other service packages must be agreed separately.
instride AG shall provide telephone and e-mail support at the hourly rates listed in the respective service package. instride AG's standby period shall be the period during which support cases are received by instride AG and services are performed. Unless otherwise agreed, the regular on-call period shall extend over the normal working hours (working days excluding Saturdays, Sundays and federal, cantonal or local public holidays, in each case from 8.00 to 12.00 a.m. and from 1.00 p.m. to 5.00 p.m.)
The response time contractually defines the maximum period of time (after receipt of a proper support request) during which an instride AG employee will contact the customer.
instride AG undertakes to comply with the response time contained in the agreed service package for the services it provides in the event of a proper support request from the customer. The following support requests are deemed to be proper:
- by the customer by e-mail (receipt of the notification at support@instride.ch during the regular standby period)
- by telephone to instride AG (receipt of the notification under the telephone number 041 926 07 20 during the regular standby period)
Additional expenditure and change in performance
Additional expenditure
Additional work caused by the customer due to revision or modification of templates as well as changes made after the start of the order, e.g. to the structure of a website, can be charged additionally by instride AG. The customer may request additional budgeting subject to a charge. Text edits and optimizations on a small scale are excluded from the above rules. If image material and other content is not provided by the Customer in the agreed quality, instride AG may charge for the additional costs incurred as a result.
The customer is obliged not to exceed the contractually agreed data transfer volume. Data traffic that is more than twice as large as the average data volume of other customers with a comparable hosting package is referred to as overcharged data traffic. instride AG reserves the right to restrict or charge the data traffic in the event of overcharged traffic after written warning to the customer. The traffic produced in excess of the fee shall be billed per GB at the current prices. If exceeding the agreed data transfer volume results in additional remuneration having to be paid to the data center provider, instride AG shall be entitled to invoice this to the Customer plus the expenses incurred by instride AG.
Changes to services
Changes to services must be ordered in writing. If additional costs are incurred for instride AG as a result of the adaptation of the services, these shall be remunerated separately.
Obligations of the customer to cooperate
The Customer is obliged to create all technical and organizational framework conditions in good time so that instride AG can provide the agreed services.
In particular, the Customer is obliged to name competent and sufficiently authorized contact persons, to ensure access to data and rooms and to provide instride AG with all necessary information in the required form and to keep it up to date.
The Customer undertakes to inform instride AG immediately if it becomes aware of any defects, malfunctions or unavailability of services or systems; this also applies in the event of suspected misuse of the services.
The customer is aware that the success of the service is dependent on his qualitatively sufficient and timely cooperation.
Involvement of third parties
instride AG is entitled to call in subcontractors / auxiliary persons to provide its services in accordance with this contract.
Warranty
General
instride AG guarantees that the services owed in accordance with the individual agreement will be provided by properly trained specialist personnel and in compliance with the care customary in its business. instride AG also guarantees that its services have the contractually agreed properties.
Creation of websites
Unless otherwise stipulated in the individual agreements for the creation of the website, the warranty period shall be 12 weeks and shall commence upon acceptance. The Customer shall immediately notify instride AG in writing of any defects detected during the warranty period. At instride AG's discretion, instride AG shall either repair or replace the goods free of charge. All further warranty claims are excluded to the extent permitted by law. The contractual warranties shall not apply in the event of incidents or circumstances whose causes are not within the control of instride AG, but are wholly or partly attributable to the fault of third parties, the Customer or force majeure, or for which the Customer is jointly responsible.
instride AG does not guarantee, among other things, that all functions will remain unchanged when delivering minor or major releases. instride AG reserves the right to change or optimize processes and functions of the website at any time. instride AG also cannot provide any warranty for the quality, functionality and freedom from defects of the open source software.
Warranty claims due to software defects are therefore due to the customer directly from the manufacturer of the open source software in accordance with the respective license agreement.
Hosting With regard to the provision of hosting services, instride AG cannot guarantee uninterrupted availability of the services and / or the website. instride AG shall provide the agreed services within the framework of the financial and personnel resources available to it in accordance with the current state of the art.
The customer shall only be entitled to a refund or reduction of the fee if the service is not available for more than 10 hours during normal working hours within a calendar month and instride AG is responsible for this in accordance with Section 11. The burden of proof regarding the unavailability lies with the customer. Claims for repayment or reduction shall lapse if instride AG has not been notified in writing of the outage within 30 days of the end of the calendar month concerned and the repayment or reduction of the fees has not been asserted.
Announced interruptions (e.g. maintenance work, etc.) are not deemed to be disruptions. Also excluded are interruptions that are beyond the control of instride AG, such as interruptions of leased lines of telecommunications companies (e.g. Swisscom) or disruptions due to force majeure. instride AG endeavors to keep interruptions in connection with system maintenance and servicing short and, whenever possible, to schedule them during low-traffic periods. The customer cannot assert any claims against instride AG due to such interruptions.
Liability
instride AG shall be liable to the customer without limitation for personal injury and for damage caused to the customer intentionally or through gross negligence in the course of the performance of the contract. Liability for slight negligence is excluded to the extent permitted by law. instride AG may use third-party suppliers and subcontractors to fulfill the contract. instride AG shall be liable for the fault of subcontractors in the same way as for its own.
instride AG shall only be liable for data losses which are attributable to the intentional or grossly negligent breach of the data backup obligation in accordance with the individual agreement. instride AG shall not be liable for data losses caused by the Customer.
Any liability and warranty of instride AG for all rights of the customer to the domain name specified by him is excluded. The customer assures that he does not knowingly infringe any rights of third parties (such as trademark rights, name or company rights) with the domain name specified by him. In the event that instride AG is held liable by third parties for the infringement of such rights, the customer undertakes to indemnify instride AG. instride AG also reserves the right to block the domain name in question.
Unlawful use of the service and responsibility for content
The customer is responsible for the content of the information (texts, images, sounds, computer programs, databases, audio/video files, etc.) that he himself or third parties transmit, retrieve or make available for retrieval by using the website. This also applies to references (in particular links) to such information. In particular, no content, products or services that violate the applicable national or international legal system may be offered, distributed or made accessible via the services of instride AG. In particular, the customer is obliged to observe the applicable laws against the dissemination of illegal, immoral and youth-endangering content and for the protection of copyright.
In addition, the Customer is expressly prohibited from using the services of instride AG to harm or harass third parties, in particular by spreading viruses or sending unsolicited mass mailings (spam).
The Customer shall be liable to instride AG for all damage caused to instride AG as a result of contractual or unlawful use of the services (in particular also of the computer center).
If unlawful use is indicated by an authority, if it is obvious or if there is considerable suspicion of such unlawful use, in particular due to information from third parties, instride AG shall be entitled to interrupt the provision of the agreed services, to suspend the service for a certain period of time and/or to terminate the contract without notice and without compensation. In such a case, instride AG shall also be entitled to disclose the Customer's data to the competent authority.
instride AG expressly reserves the right to take further measures and to assert claims for damages in court in the event of unlawful use.
Confidentiality, data protection and data security
The parties assure each other that they will treat all business secrets of which they become aware in the course of fulfilling the contract with absolute confidentiality. This provision shall also apply after the termination of the contract and shall only end with the general disclosure of the information and data concerned.
instride AG and the Customer undertake to comply with the applicable statutory data protection provisions. In particular, instride AG shall use the customer's data exclusively for the fulfillment of the contract and not for its own purposes. No data will be passed on to unauthorized third parties. The Customer shall be responsible for taking the measures required for data security (confidentiality, user ID, password, virus protection, firewall, backup, etc.).
instride AG takes appropriate measures to protect the proper operation of its technical infrastructure against negative external influences (viruses and other harmful programs and files, unauthorized access to systems and data, etc.). However, instride AG cannot guarantee that these measures are effective in every case. The measures to be taken by instride AG to secure the Customer's data shall be determined in accordance with the individual agreement. instride AG is not obliged to carry out any further data security measures on its own initiative.
Duration and termination
Creation of websites
With regard to one-off services, the agreement shall generally end upon fulfillment (e.g. launch of the website or training). If an order that has already been placed is canceled or terminated by the customer before or during the creation, instride AG shall be indemnified by the customer. In particular, it shall be entitled to invoice the entire expenditure incurred (including all expenses). With regard to the ongoing service, the Customer shall owe instride AG all costs incurred in this connection (including the fee for the agreed minimum contract term).
Hosting
Unless otherwise agreed, contracts for recurring services are open-ended. The agreement must be terminated in writing with a notice period of three (3) months to the end of each year, calculated from the start of the service.
Payments already made beyond the notice period will not be refunded. By mutual agreement, the contract can also be terminated within other periods or on another date.
Termination of contract for good cause
For good cause, instride AG may terminate the contract at any time with immediate effect, discontinue its services and / or block access. Good cause shall be deemed to exist in particular if the Customer publishes illegal content, does not settle the payments owed within a reasonable grace period despite a reminder or infringes the copyrights of instride AG despite a warning.
Consequence of the termination of the contract
instride AG is entitled to delete all of the Customer's data from instride AG's systems upon termination of the contract. The Customer is responsible for the timely backup of his data prior to the termination of the contract. In the event of extraordinary termination without notice, instride AG shall not delete the data before the expiry of a 10-day period from the date of termination of the contract. The provisions regarding copyright, liability, data protection, and references etc. shall continue to apply even after termination of the contractual relationship.
Prices and terms of payment
All-inclusive prices
The prices specified in the offer or order confirmation shall be authoritative. If an all-inclusive price is agreed, instride AG shall be entitled, unless otherwise agreed, to invoice 50% of the invoice amount upon conclusion of the contract (signing of the offer) and the remaining 50% upon training or online activation.
Remuneration of expenses
Services that are not included in a lump sum or remuneration for a recurring service are invoiced on a time and material basis at the hourly or daily rates specified in the individual agreement or the agreed SLA package.
Fees for recurring services
The fees are payable in advance for the agreed billing period and must be paid by the first day of the respective billing period at the latest. The amount of the fees is based on the current price lists. instride AG is entitled to adjust the fees at any time, subject to a notice period of 30 days to the end of the notice period. instride AG may also implement fee reductions or improvements to the range of services with a shorter notice period.
Terms of payment
All prices are exclusive of VAT, other taxes, fees or charges. The VAT amount is shown separately. For essential work from Monday to Friday before 8.00 a.m. and after 5.00 p.m., a surcharge of 25% is payable, and 50% at weekends and on public holidays.
Unless otherwise agreed, all invoices are due for payment within 10 days. After expiry of the payment deadline, the customer is in default without reminder and instide AG is entitled to 6% default interest as well as compensation for all reminder, collection, legal and court costs and any other damages. In this case, instride AG has the right, after setting a grace period of 10 days in writing and by registered mail, to deactivate the customer's website and to reactivate it only after payment has been made and instride AG has been charged for the expenses incurred.
instride AG may raise or lower the prices annually. Price changes must be notified to the Customer at least one (1) month before the end of the notice period. If no notice of termination is received by instride AG within this period, this shall be deemed to constitute consent to the price change. No price changes are possible during any agreed minimum term of the contract.
References, messages
instride AG may name the customer as a reference (e.g. for marketing purposes) and publish the customer's project after its implementation. The Customer shall be notified accordingly in advance.
instride AG is entitled to send all notifications to the Customer by e-mail, including announcements of new services or technical maintenance work, payment reminders, commissioning confirmations, terminations, notifications of means of identification and access, etc.
Final provisions, applicable law, place of jurisdiction
instride AG reserves the right to amend the GTC at any time. Changes to the GTC shall be communicated to the customer in an appropriate manner. If the Customer does not agree with the amended GTC, he may terminate the contract immediately on the next ordinary termination date. If instride AG does not receive notice of termination within 14 days, the new GTC shall be deemed to have been accepted by the customer.
Should individual or several clauses of these GTC be or become ineffective or invalid or should the GTC contain loopholes, the validity of the remaining clauses shall remain unaffected. The invalid clauses shall not be at the expense of the author, but shall be interpreted or replaced in such a way that they correspond as closely as possible to the intended economic purpose. The same applies in the event of a loophole.
The contractual agreement or individual rights and obligations may only be transferred to third parties with the prior written consent of the other party.
The offsetting of claims of the customer against claims of instride AG is excluded.
The contracting parties undertake to hold a crisis meeting immediately in the event of possible conflicts arising under this contractual agreement in order to discuss how to proceed.
The legal relationship between the parties shall be governed by Swiss law, however, to the exclusion of international treaty provisions (in particular the UN Convention on Contracts for the International Sale of Goods).
In the event of disputes, the courts at the registered office of instride AG shall have exclusive jurisdiction.