General terms of business of ascarix AG
1.1. Relations between the customer and ascarix AG (Company Number CHE-429.229.229) ("ascarix" or "ImmoSparrow") regarding the services and products of ascarix will be subject to these General Terms of Business ("GTB"), provided they are declared applicable and no written agreements to the contrary have been concluded between the Contracting Parties.
1.2. These GTB serve as a contract basis, supplement any concluded individual contracts and contract components, and apply to all contracts entered between the Parties even if they are not expressly referred to. Any of the customer's terms of business or purchase are deemed excluded. The following ranking will apply: 1. Individual contracts and order confirmations of ascarix, 2. Service Level Agreement(s) (if agreed) 3. GTB, 4. License for finished products (if agreed), 5. Swiss Code of Obligations.
2. Services of ascarix
2.1. ascarix offers various services and products in the area of internet, data, networks and telecommunication, and provides its services as part of the respective contractual relationship with the customer and the operational resources available. ascarix reserves the right to adapt the agreed services if needed or for important reasons. "Important reasons" can include the loss of availability of websites or other data sources.
2.2. ascarix shall inform the customer in a timely manner if operations or shipments must be interrupted to cure disruptions, perform maintenance work, introduce new products, etc.
2.3. ascarix may bring in third-party providers and sub-suppliers for contract fulfilment.
3. Beginning of the contractual relationship
The contractual relationship between ascarix and the customer always begins in accordance with the respective agreement in the contract. If the beginning is not expressly agreed, ascarix shall specify the beginning of the contractual relationship.
4. Contractual period; Termination; End of the contractual relationship
4.1. The minimum contract period, notice period, and termination date are set forth in the respective contract. If no agreement has been made, the following provisions will apply: The contract is entered for an indefinite period, but at least for a period of 12 (twelve) months. After that, either Party may terminate it at the end of the contract year by giving at least 30 days' notice. Amounts that the customer has already paid to ascarix for the minimum contract period will not be reimbursed, but will be allocated to ascarix.
4.2. Termination must be made in writing using a registered letter or email (effective only if the receiving Contracting Party acknowledges receipt).
4.3. ascarix AG may terminate the contract for cause at any time, without giving notice. "Cause" includes failure to pay within ten days after a written warning has been given.
5. Liability; Responsibility of ascarix
5.1. ascarix will not guarantee its services will operate without interruptions or faults, or operate without faults at any given point in time. Any liability for interrupted operations of any kind, especially (but not exclusively) those which serve troubleshooting, maintenance or the introduction of new technology, is hereby excluded.
5.2. ascarix makes no guarantee regarding the integrity or completeness of the data that is stored or that is transmitted via its system, third-party systems, or the internet. Any warranty regarding data that is sent, received or stored via ascarix's system, third-party systems, or the internet, and that is unintentionally disclosed, damaged or deleted, is excluded.
5.3. ascarix will not assume responsibility for damages which the customer suffers because third parties misuse the connection (including viruses).
5.4. Any further liability of ascarix and its vicarious agents (assistants) for a certain technical or economic success, for indirect damages such as loss of potential profit, third-party claims, consequential damages arising from production downtime, loss of data, and liability for slight or ordinary negligence, are expressly excluded, subject to further compulsory statutory liability provisions.
5.5 ascarix ensures it will not make data gained on the customer's behalf available to any third parties or use it for its own sales activities.
6. Customer's rights and obligations
6.1. The customer is fully responsible for the content, lawful use and representation of the services and corresponding results received from ascarix as part of the customer's presentation or other representation and use ("Presentation"). The customer shall comply with ethical and generally accepted rules of cooperation on the internet. The customer shall be fully liable toward ascarix for the content of the Presentation, and will assume any costs which ascarix incurs due to the customer's Presentation. The customer ensures that its use of the internet and the offer of its goods and services are legal. The customer shall respect and comply with applicable law, especially applicable international agreements concerning data protection, copyright, business secrets, trademark rights, fair competition and related areas, and will not disseminate any content or services which breach good taste, common decency or customs or otherwise display dubious content. In particular, this applies to disseminating, referring to or providing connections to spread pornography, incite violence or crimes, to discrimination of any type, or to other offensive content. ascarix is not obligated to check the Presentations of customer offerings. Any breaches by the customer against the aforementioned or other applicable provisions will be deemed important grounds for terminating the contract without notice, and ascarix reserves the right to terminate the contract without giving notice, or to restrict or temporarily disable services, if it learns of such a breach. Damage compensation claims against the customer and third parties remain reserved.
6.2. The services purchased from ascarix may not be used further for third parties or passed on to third parties without ascarix's prior written consent. In the event of contravention, ascarix reserves the right to terminate the contract in question without notice and assert appropriate damage compensation claims.
6.3. The customer is responsible for its own hard- and software components (including programs and PC configuration). ascarix cannot guarantee whether serviceable internet access, or serviceable access to other networks and data sources, is possible on all end devices. If faults occur which make it necessary to take action at the customer's premises, and if the fault cannot otherwise be remedied, the customer will adjust its system at that party's expense or discontinue operations. Otherwise, ascarix may discontinue the connection unilaterally.
6.4. The customer is responsible for taking the necessary security precautions to ensure safe data flow. The customer is responsible toward ascarix for the use of the customer's account. Passwords and identification may not be disclosed to third persons. If this is done by or on behalf of the user anyway, the account holder is responsible for any consequences. In particular, the customer will ensure that applicable age limits for accessing the internet, other networks or data sources are observed. ascarix reserves the right to refuse to disclose or hand over data if the employer is unclear about who is authorised to do so.
7. Usage rights to software, products and services of the services managed by ascarix
7.1. Unless otherwise explicitly agreed, the following regulation concerning usage rights to software, products and services applies to the services rendered by or products received from ascarix: The customer is granted a nonexclusive, non-transferable right to use the software and goods or service marks in-house temporarily - during the contract period at the longest. The software may not be made available to third parties. For standard products of third parties, those parties' licensing terms will apply if they contain further restrictions. Source codes may not be handed over to the customer unless this has been expressly agreed and separately remunerated.
7.2. If claims related to the subject matter of the contract are asserted due to the breach of proprietary rights, the customer shall inform ascarix thereof in writing within five calendar days. The customer may not conduct any legal proceedings without the prior consent of ascarix and shall assign the defence of such claims to ascarix on request, in particular for conducting legal proceedings, including settlement proceedings.
7.3. If a court ruling forbids the customer from using the contractual object or parts thereof, or if ascarix believes that legal action is imminent due to the breach of proprietary rights, ascarix may choose between the following actions:
- change the contractual object so that it no longer breaches proprietary rights;
- procure for the customer at the customer's expense the right to continue to use the contractual object;
- take back the contractual object and reimburse the customer for the fee it has paid, minus a reasonable amount for the use and loss of value.
8.1. Users of the internet, other networks, or data sources subject themselves to various data protection risks. ascarix aims at the most efficient security possible by using economically feasible, technically possible and proportionate measures, but cannot make any guarantees ruling out improper use. The customer is responsible for taking measures to secure and shield its data and network against intrusion or other attacks on those data by unauthorised third parties.
8.2. The customer acknowledges that its data will be processed and used if this is necessary to fulfil contractual obligations. The customer agrees that its data will be internally processed and used so the customer can receive optimal service, especially including information about the entire ascarix product range. ascarix reserves the right to disclose the customer's identity on justified request by third parties.
9. Invoicing; Payment conditions
9.1. The invoice will be issued based on the conditions agreed in the respective contract. Invoices will be created on the basis of the agreed prices (contract or general price list). ascarix creates its invoice on the basis of its records.
9.2. Payment deadlines are based on the agreements with ascarix. After the payment deadline expires, the customer will enter default automatically, with no written reminder being sent. If ascarix must send written reminders, it may charge dunning fees of CHF 40 per reminder. If the payment is late, ascarix may discontinue services and disable them immediately.
9.3. Excess payments will be refunded for subscriptions. Item 4.1 remains reserved. Without an express request for a refund, ascarix may withhold excess amounts that have been paid and credit them to the customer as prepayments against future liabilities. The customer has no claim to accrual of interest on the prepayment.
9.4. ascarix may change prices at any time.
9.5. ascarix may set off its claim against the customer's counterclaims. The customer may not set off any counterclaims against ascarix's claims.
The customer agrees to indemnify and hold harmless ascarix regarding liability, claims, loss or receivables (including reasonable lawyer's fees) that third parties assert in connection with the use of services offered by ascarix, a breach of this contract, or a breach of the guarantees and assurances made under the terms of this contract. This also applies if ascarix is liable toward a third party because of content ascarix has published.
11. Amendments to the General Terms of Business
It is the customer's responsibility to stay informed about the current GTB. If they are amended, they will be sent to the customer by email or post or communicated using other references (on the website, for example). When the amendments enter force and are sent or communicated to the customer, the GTB will be deemed accepted.
12. Partial nullity
Severability clause. Finding individual provisions of these conditions to be invalid or unenforceable, now or after contract conclusion, will not invalidate the rest of the agreement. The invalid or unenforceable provision will be replaced by a valid and enforceable regulation whose effects comes closest to the economic objective that the Contracting Parties pursued with the replaced provision.
12.2. If different translations of the GTB contradict each other, the German version will prevail.
This contractual relationship will be subject to Swiss law except the provisions of the private international law. The exclusive venue is Zollikon.
Version from June 2019