T +41 41 729 07 29

GTC

1 Scope

1.1 These General Terms and Conditions of Business (GTC) govern the customer's contractual relationship with COMFOX AG, Bösch 82, 6331 Hünenberg, in relation to the subjects of contract to which the Offer or an Individual Contract applies (see clause 2). By signing the Offer or an Individual Contract, which will be issued along with these GTC and the associated Service Level Agreements + Description (SLA), the customer confirms that these GTC and SLA's have been read, understood and accepted. The GTC's and SLA's are an integral part of the Contract and constitute, together with the Offer/Individual Contract, the Contract (following Contract).

1.2 The currently applicable GTC are published on the COMFOX AG website at www.comfox.ch/agb and can be downloaded and printed out at any time. The customer may request a print copy of the GTC at any time.

1.3 These GTC take precedence over any GTC of the customer. In the event of dispute the documents shall have priority as follows: 1. Offer/Individual Contract, 2. GTC, 3. SLA.

 

2 Conclusion of Contract

2.1 At the customer's request COMFOX AG will produce an Offer, which the customer will receive in the form of the Offer/Individual Contract, including the GTC and the applicable SLA's. The Offer will be produced free of charge without counter-agreement.

2.2 If the customer places an order without a prior Offer, COMFOX AG will send him an Offer (within the meaning of clause 2.1), which must be signed and returned by the customer for the Contract to come into effect. COMFOX AG shall be bound by the Offer for the duration of its validity which is stated in the Offer.

 

3 Subject matter

3.1 COMFOX AG offers services such as Services & Solutions, Maintenance & Support and Cloud Services. Services & Solutions include analysis, consulting, concept preparation, installation, implementation in the telecommunications environment, mobile communications, networks, IT infrastructure, mail and internet, security and maintenance for individuals and businesses. Maintenance & Support Services comprise maintenance of the customer's systems and support for the customer's systems at different service levels (see applicable SLA). Cloud Services comprise both managed infrastructure (Infrastructure as a Service, IaaS) and software services (Software as a Service, SaaS).

3.2 COMFOX AG also sells products of other manufacturers such as hardware and software licences. Any sales contract made will cover the machines, accessories, spares and licences including the manufacturer's documentation required to operate them. Installation of such hardware products and licences shall be based on the conditions for Services & Solutions.

3.3 The services agreed on in each case (in accordance with clause 3.1) and the respective purchase of products (in accordance with clause 3.2) shall be described in the Offer. The detailed descriptions and conditions of the Services & Solutions, Maintenance & Support and Cloud Services and the purchase of products will be stated in the corresponding SLA and these GTC's.

 

4 Rights and obligations of COMFOX AG

4.1 Services & Solutions are based on the Services & Solutions SLA.

4.2 COMFOX AG's Maintenance & Support is a modular system. The customer can select from different Service Levels respectively packages. The scope of the respective Service Level is based on the Maintenance & Support SLA.

4.3 COMFOX AG Cloud Services comprise both IaaS services and SaaS services. IaaS services entail the provision of storage space with third-party providers. The customer chooses both the third-party provider and the size of the storage capacity. IaaS services may only be used for the due and proper processing of customer data. The Cloud Services SLA shall apply.

4.4 COMFOX AG reserves the right to set limits on the consumption of resources, and to block a customer's Cloud Services if its user behaviour impairs operation of the service in any way (see clause 5.9).

4.5 Delivery dates for products and service stated by COMFOX AG shall not be taken as binding. COMFOX AG shall strive, however, to keep the specified dates to the best of its ability. With the despatch of the products, usage and risk shall pass to the customer. The product liability obligation and warranty shall be based on the conditions of the third-party provider.

4.6 Title to the products ordered shall remain with COMFOX AG until the purchase price, including interest, charges and taxes, has been paid in full and in due time. COMFOX AG is entitled to have the title retention entered in the competent Swiss Register of Retention of Title at the customer's expense and/or to notify the title retention to any third parties. COMFOX AG can recover at any time, having given appropriate warning, products that have been installed but not paid for. The customer is obliged to insure against loss any products held on its premises until paid for in full. In respect of licences, the customer's usage rights shall be restricted to the scope of the manufacturer's licence. This applies in particular for SaaS services.

4.7 Software, service results and documentation can be transmitted to the customer by COMFOX AG on data carriers or by electronic data transmission as requested, or provided online.

4.8 If products are installed by COMFOX AG in accordance with the Offer, COMFOX AG will produce a detailed plan in advance of delivery depending on the situation. Installation will be based on the conditions of the Services & Solutions SLA. If the costs of installation are not specified in the Offer, the additional installation costs shall be borne by the customer. The following costs shall always be borne by the customer: adaptation of the customer's existing technical environment and the configuration of interfaces, data migration, parameterisation, customer training and similar functions.

4.9 If it was agreed in the contract that a service must be accepted with an acceptance protocol, COMFOX AG will invite the customer to an acceptance procedure and prepare a protocol for it (even if the customer is not in attendance).

 

5 Customer's rights and obligations

5.1 The customer is obliged to pay COMFOX AG, according to the agreed payment terms and without deductions, the charges quoted on the purchase order/Individual Contract for services and products, plus any statutory value added tax, expenses such as bank charges, packaging, transport costs and material from COMFOX AG's premises, insurances, taxes, customs duty, and costs of disposal of packaging material.

5.2 Changes made after the order is placed shall be borne by the customer. To allow COMFOX AG to deliver its services appropriately and install products promptly, the customer is responsible for making available the administrative, organisational and technical conditions, including: designating its own project manager, providing information on the operational requirements and technical conditions, evaluating the quantities, providing and operating the connections for on-site and remote functions in accordance with the contract, granting access to and intervention on the customer's and end user's systems, responding to the concepts, protocols, queries and working results submitted, issuing test data, and participating in the acceptance procedure (where provided for). If the customer fails in its duties of assistance, COMFOX AG can extend deadlines and bill the customer for any additional charges. If, as a result of the customer failing in its duties to assist, COMFOX AG is significantly hindered in carrying out its contractual obligations, COMFOX AG can withdraw from the contract.

5.3 The customer must grant COMFOX AG or third parties appointed by it access to the premises and systems. For security reasons a competent employee of the customer must supervise the works undertaken by COMFOX AG on site and remain on call.

5.4 The customer must use the systems with due care and according to the manufacturer's instructions, specifically to satisfy the requirements for the operating environment. The customer shall assist actively in any fault localisation.

5.5 If no acceptance protocol was contractually agreed in accordance with clause 4.9 above, the customer shall check the products and services received for defects without delay. He shall report any defects within 5 days of delivery, and otherwise forfeit the right to assert a claim.

5.6 The customer shall be responsible for ensuring that he makes regular back-up copies unless a back-up is included in the scope of COMFOX AG's services. COMFOX AG will secure customer data in accordance with the state of the art. The customer has the option at any time to request recovery of his data. COMFOX AG guarantees in no way that the customer's data are archived or available or can be recovered.

5.7 Where it is necessary for maintenance work, the customer shall provide the supplier with a secure room for storing tools and material until completion of the works.

5.8 Products not acquired through COMFOX AG must be purchased under a separate contract made between the manufacturer/distributor and the customer. COMFOX AG refuses all responsibility and liability for such products. The customer is responsible for the correct licensing vis-à-vis COMFOX AG and third parties.

5.9 The customer shall be entirely responsible for the content of information it makes publicly available on the internet, on Cloud Services hosted by COMFOX and that it disseminates on telecommunications networks. The customer shall refrain from improper and unlawful uses and transactions on the internet and the use of COMFOX AG services for such purposes (such as the publication of erotic, pornographic, racially discriminating and violent content, illegal or offensive content in general, improper use of copyright-protected works, e.g. by circumventing DRM, using torrent software, creating links or disseminating and publishing illegal material by other means; immoral or radical political information, information causing unrest or personal nuisance, malware, trojans, viruses, scripts (such as Perl, PHP), reselling of COMFOX AG services etc. If COMFOX AG is notified by a third party of unlawful content or improper use of COMFOX AG services, COMFOX AG can block storage areas immediately and/or issue a notice to the customer in accordance with the Simsa Hosting Code of Conduct (http://static.simsa.ch/1362151411/130201_simsa_cch_public_web.pdf).

5.10 In the event of usage in breach of contract within the meaning of clause 5.9 above, COMFOX AG can demand surety from the customer equivalent to the anticipated costs of defending itself against possible third-party claims. COMFOX AG can offset its own claims against the surety. If the surety is not paid within the due time, COMFOX AG is entitled to suspend or block the Services and the Products delivery without further warning, and in serious cases dissolve the contract without notice or compensation, possibly demanding damages from the customer.

5.11 Should COMFOX AG be declared bankrupt, or file for bankruptcy protection, COMFOX AG shall assign to the customer the right to assert its claims directly against the third-party providers shown in the Offer/Individual Contract, to recover its data from the provider(s) or arrange to have it managed by another reseller.

 

6 Prices

6.1 Where not otherwise agreed in the Offer, the prices agreed therein shall apply excluding statutory value added tax. This does not affect price changes according to the SLA's.

6.2 Nor does it affect price changes notified to the customer by COMFOX AG 20 days before expiry of the contract or arising due to price adjustments of third party suppliers.

 

7 Payment terms

7.1 The payment term for the Service & Solutions and Maintenance & Support services is 30 days. Products and Cloud Services are payable in advance, within 20 days of invoicing. For products and Cloud Services, the order will only be cleared and/or the service continued when payment is received.

7.2 For major orders or the like, COMFOX AG may request part payment, instalments or advance payment. The payment dates for the part or advance payment(s) are stated in the Offer.

7.3 If no payment or less than full payment has been received by the end of the due payment term, the customer shall automatically be in default. In that case the customer shall be liable for 10% p.a. interest default.

COMFOX AG is entitled in case of default to withhold further deliveries of Products without notice or cease to provide the Services 10 days after issuing the relevant reminder. If the customer is in default of payment for Cloud Services, and if it raised no substantiated objections to the invoice in writing, COMFOX AG can suspend all services without further notification, take other steps to avert losses and dissolve the contract without notice or compensation. The customer shall be liable for any reminder and collection costs, but for at least CHF 30.-- per reminder, including court and legal costs. COMFOX AG reserves the right to claim further default damages.

7.4 Invoices and reminders will be sent by email and/or post. The customer is responsible for ensuring its address details and in particular its email address is up-to-date and functioning for invoicing and other purposes.

 

8 Duration of contract

8.1 The Contract for the Services has a term of one year, beginning from the start date stated in the Offer, provided a different contract term was not agreed in the Offer.

8.2 Unless notified by one of the two parties 30 days before termination, the Contract shall be extended automatically by the period stated in the original Contract according to the Offer. Any notification of termination of the Contract will be confirmed by COMFOX AG.

8.3 COMFOX AG is entitled to dissolve the contractual agreement without notice or compensation if the contractual conditions are not adhered to, and to terminate or block the services and product deliveries within the meaning of clause 7.2 accordingly.

 

9 Intellectual property rights

9.1 COMFOX AG and its suppliers retain the title to intellectual property rights (trade marks, trade and brand names, copyrights, trademarks, patents etc. to documents and software etc.) supplied to the customer. Legal use of such intellectual property rights is restricted to the specifically defined scope or licence in each case.

 

10 Warranties of title

10.1 If the customer purchases licences from COMFOX AG, the warranties of title are governed by the manufacturer's licence provisions (SaaS or conventional). COMFOX AG guarantees that it will have paid for the customer's licences required for the products supplied to it, and that it is entitled to procure services from third-party providers.Apart from that COMFOX AG gives no warranties of title, in particular not for products of third-party manufacturers used by the customer.

10.2 COMFOX AG or the manufacturer/supplier will defend against third-party claims for breach of trade rights at its own cost. The customer shall notify COMFOX AG of any such claims in writing and without delay and shall allow COMFOX AG or the manufacturer/supplier to be in sole charge of any legal proceedings and measures taken to settle the dispute either in or out of court. The customer undertakes to support COMFOX AG actively in defending against third-party claims. Subject to these conditions COMFOX AG shall assume the costs and damages incurred by the customer. If a claim relating to an infringement of intellectual property rights is lodged, COMFOX AG may at its own discretion obtain the right for the customer to use the software exempt from all liability arising from infringement of intellectual property rights, or replace the software with other software that meets the key contractual requirements.

 

11 Product warranty

11.1 COMFOX AG guarantees that the products purchased from COMFOX AG comply with the stated specifications and functionalities of the third-party manufacturers.

11.2 COMFOX AG guarantees careful installation and operation of its services. However, COMFOX AG can give no guarantee or warranty that the services and products supplied by it can be used and function continuously without failure or fault (in all the combinations desired by the customer or together with all the customer's data, applications and infrastructure). To provide redundancy and ensure against the risk of crashing, COMFOX AG recommends that the customer arranges to have a back-up.

11.3 COMFOX AG and third parties engaged by it shall take precautions to protect their infrastructure from unauthorised third-party access. However, no guarantee can be given of absolute security against unauthorised access or unauthorised interception. COMFOX AG and third parties engaged by it cannot accept liability for such attacks.

11.4 COMFOX AG guarantees that, should the customer terminate the Contract in the ordinary manner, all data will be returned to it on termination, with the exception of the SaaS licences. The data will be stored on media supplied by the customer. The costs for the preparation and handover of the data shall be borne by the customer. If the customer does not request the return of its data by COMFOX AG within 30 days of termination of the Contract, COMFOX AG may delete it.

11.5 The guarantees made in clause 9.1-4 and clause 11.1-11.4 above shall be valid for a period of 3 months, both for obvious and for hidden defects. In the event of a defect covered by the warranty, COMFOX AG will be granted three opportunities to remedy it. If the final attempt to remedy fails to eliminate the defect to a reasonable extent, the customer may choose to deduct a sum equivalent to the loss in value from its payment, or in the case of major defects withdraw from the Contract. Substitution by third parties or a reduction in price shall only be permitted if COMFOX AG has agreed beforehand in writing. COMFOX AG's obligation to pay damages is governed finally by Clause. 13.


12 Service windows and interruptions

12.1 COMFOX AG reserves the right to carry out regular maintenance work on the systems during the specified service windows. During this time operation of the services may be temporarily interrupted.

12.2 COMFOX AG will inform the customer in good time about other service interruptions necessary for elimination of faults, performance of maintenance work, introduction of new technologies etc. COMFOX AG will strive to keep such interruptions brief and schedule them during quiet periods.


13 Liability

13.1 COMFOX AG shall be liable for direct damage caused intentionally or by gross negligence and for bodily injury. COMFOX AG, in so far as permitted by law, refuses all liability for other losses, in particular but not limited to loss of profits and consequential losses.

13.2 COMFOX AG accepts no liability for damage to products in transit, except for those due to inappropriate packaging of products.

13.3 COMFOX AG accepts no liability for damage caused to the customer as a result of transmission errors, technical defects, capacity overload, interruptions (including system-related service and maintenance), delayed transmission, disruptions, illegal interventions in the telecommunications equipment or networks by third parties or as a consequence of computer viruses, malware or trojans.

13.4 COMFOX AG accepts no liability for losses incurred by auxiliary personnel and third parties engaged to perform the Contract.

13.5 The customer may bring claims for liability for 6 months from the start of the damage, and by the absolute limitation period of such claims at the latest. The damage incident must be notified to COMFOX AG in writing immediately after it is detected, at the latest within 5 days, in accordance with clause 5.5 for defects which can be detected in a normal manner.

13.6 If COMFOX AG is liable within the meaning of clause 13.1-13.5, it shall assume the losses up to the maximum value of the order or the contractually agreed annual service and support charge, but to a maximum amount of CHF 50,000 - per damage incident and calendar year, where legally permitted.


14 Force majeure

14.1 If COMFOX AG is prevented from fulfilling one or more obligations under this Contract due to force majeure, it shall be exempt for the period during which the incident of force majeure lasts, and for a reasonable period thereafter, from fulfilling the respective obligation(s) and shall not be liable for any direct or indirect losses incurred by the customer from non-fulfilment of the respective obligation(s). Force majeure covers all unforeseeable events and events whose effects on performance of the Contract are not attributable to either party, nor to third parties engaged by them. These include: natural disasters and losses, mobilisation, war, uprising, epidemic, accidents, sabotage, terrorism, industrial disputes and government measures, major operational disruptions, interruption of telecommunications lines, in particular internet and gateway connections, power failure, virus attack and similar.


15 Data protection

15.1 COMFOX AG collects, stores and processes the personal data of customers as required to perform the Contract (to process the ordering of services and products in connection with the Offer, these GTC or the SLA's, and for invoicing) according to statutory regulations and the following special provisions.

15.2 COMFOX AG shall disclose to third parties (and their suppliers), both in Switzerland and abroad, only the personal and customer data necessary to perform the Contract, to design and develop its services to meet the requirements, for marketing purposes and the delivery of customised offers.

15.3 It is possible from time to time that the third party may disclose this data likewise to another person. But in this case the third party is also bound by clause 15.1 and 15.2. In addition, COMFOX AG will disclose personal and customer data to the authorities in Switzerland and abroad in connection with civil, administrative and criminal proceedings, where a legal and enforceable judgment, disposition or legal obligation applies.

15.4 Transactions on the systems and traffic data will be logged by COMFOX AG or the third-party providers and retained during the statutory period. These logfiles will be used exclusively to perform the services, comply with legal provisions, locate faults or collect performance data.

15.5 Data transmitted by COMFOX AG to the cloud over the internet will be encrypted. In this connection the customer acknowledges in particular clause 11.3 of these GTC. The data are thus transmitted across borders on a regular basis and are not monitored, including when the sender and recipient are both in Switzerland.

15.6 The customer remains the data owner within the meaning of the statutory provisions and is responsible for data protection compliance in relation to its own data.

15.7 It is the customer's responsibility to check whether the legislation requires that it notifies its customers that it is transferring its data to COMFOX AG and has obtained their approval.

15.8 The customer has a right of information and correction for personal data relating to it. The customer may exercise this right by addressing the relevant inquiry to its COMFOX AG customer adviser. This is not valid for end user information requests, which must be organized by the customer.


16 Non Disclosure

16.1 This obligation of secrecy and confidentiality shall apply to all the customer's confidential information and data made available to COMFOX AG or third parties appointed by it in preparing to make the Contract or during the term of this Contract, whether in documentation or files. All data and information not already publicly accessible or that will become publicly accessible during the performance of the Contract shall be treated as confidential, without this resulting from an infringement of this statement. Not treated as confidential shall be information and data with no significance that establish no identifiable connection with the confidential data. At the customer's request an additional secrecy and confidentiality statement can be signed.

16.2 COMFOX AG undertakes not to disclose data and information to third parties, copy it, back it up, process or analyse it, except under the circumstances described in clause 15.1 - 15.3 above.

16.3 After installing and setting up the systems for the customer, COMFOX AG will give the customer the access data and passwords. The customer must immediately substitute the temporary password with a new one chosen by itself. The password should not be an obvious combination and must consist of the stated minimum number of characters, ideally a combination of numbers, letters and special characters. The customer is responsible and liable for the safekeeping and any misuse of the password. If the password is lost, COMFOX AG must be notified without delay.

16.4 The customer cannot assert liability or any other claim against COMFOX AG if third parties gain knowledge of the password resulting from its careless safekeeping, use or disclosure, or otherwise making it available, and unauthorised changes are made or other damage occurs.

16.5 On termination of the Contract the customer's data and information within the meaning of clause 11.4 will be deleted, where lawfully permitted. At the customer's request COMFOX AG will confirm the deletion/destruction of the data in writing. At the customer's request a longer period for the retention of back-ups can be agreed.

16.6 This non-disclosure statement shall apply until it is confirmed that the customer's data and information have been deleted or that the Contract is otherwise terminated, but for 2 years at most.


17 Engagement of auxiliary personnel and third parties

17.1 When the order is placed, COMFOX AG will, at the customer's request, disclose to the customer that it is engaging auxiliary personnel and third parties to deliver the service(s) where this is possible for COMFOX AG. All other services will be delivered by COMFOX AG itself.

17.2 The customer can refuse to accept an auxiliary or a third party. This could affect the price. If an auxiliary or a third party is refused, the prices quoted in the Offer shall no longer apply.


18 Assignment of rights

18.1 Any assignment of rights and obligations under this Contract shall require the written approval of the other party, unless it is to a legal successor of one or the other party.


19 Final provisions

19.1 These GTC are available in German and English. The German version shall be taken as the original and sole binding version.

19.2 COMFOX AG reserves the right to change the GTC and SLA at any time without giving reasons and giving notice of 60 days. If the change should entail a disadvantage to the customer, the customer shall have the right of extraordinary termination, giving notice of 30 days from the date on which it becomes aware of, or is capable of being aware of, the change, to the date on which the change enters into force. If the customer does not notify termination, the changes shall be deemed tacitly accepted.

19.3 The customer acknowledges that, if COMFOX AG services are used from foreign countries, foreign laws may be violated. The customer is responsible for taking the requisite care to inform himself in this regard. COMFOX AG disclaims all liability in relation to this. The customer also acknowledges that there may be import and export restrictions for the encryption algorithms and undertakes to comply with these accordingly.

19.4 The customer shall refrain from any attempt to engage persons who are employed by COMFOX AG to perform COMFOX AG's services. He shall refrain from employing the services of such persons except through COMFOX AG. These obligations shall apply as long as such a person is working for the customer and for one year thereafter. Any infringement of this provision shall incur a contractual penalty of two years salary of the person in question.

19.5 Should individual provisions of these GTC be wholly or partially ineffective, it shall not affect the other provisions or parts of such provisions. The wholly or partially ineffective provisions shall be replaced by the respective legal provisions.

19.6 The agreements made in these GTC and the SLA are binding. Any change to individual provisions shall be agreed in writing when the Offer is negotiated, subject to the provisions of clause 6.2 and 19.2.

19.7 This Contract (the Offer, GTC and SLA) will be issued and signed in duplicate. The parties will each receive a complete signed copy of it.

19.8 All legal relations shall be governed exclusively by substantive Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention CISG) of 11 April 1980.

19.9 The sole court of jurisdiction shall be Zug. Imperative legal provisions shall take precedence.

19.10 These GTC (Version 1.0) shall enter into force with effect from 01.02.2014 until further notice.

 

comfox AG
Bösch 82
CH-6331 Hünenberg
T +41 41 729 07 29
F +41 41 729 07 28
info@comfox.ch

 
 

 

Contact form
T +41 41 729 07 29