ToS Terms of Service for Cloud Services of Netcloud AG
1.1 These Terms of Service (hereinafter referred to as «ToS») contain the general conditions for all cloud services (hereinafter referred to as «Services») which Netcloud AG (hereinafter referred to as «Netcloud ») provides to its customers (hereinafter referred to as «Customer») (together referred to as «Parties»).
1.2 The subject matter of the agreement and the scope of services are determined by the Cloud On_Call and Service Agreement. These documents form integral parts of the entire agreement between Netcloud and the customer.
1.3 All other services outside the scope of para. 1.1 e.g. material deliveries or other services shall be governed by separate ToS, GTC or corresponding individual agreements. This applies even if further services are provided in connection with the delivery of Cloud Services.
2 Offer and conclusion of contract
2.1 Agreements between the customer and Netcloud come into effect upon receipt by Netcloud of the signed contracts or a signed order verifiable at least in text form with reference to a specific offer.
2.2 Payment of the invoice is deemed as acceptance.
3 Secrecy and data protection
3.1 The parties undertake to keep as confidential any facts and data which are neither public knowledge nor generally accessible.
3.2 The obligation of confidentiality shall also extend to all employees of the parties. The parties shall impose corresponding confidentiality obligations on the persons concerned.
3.3 This obligation shall continue to exist, as long as there is a legitimate interest in it, even after the termination of the contractual relationship. Statutory duties of clarification and information remain reserved.
3.4 Both parties are obliged to treat data and information marked as confidential confidentially and to comply with the statutory data protection provisions. In case of doubt, data and information shall be qualified as confidential.
3.5 Netcloud processes the customer’s personal data to the extent necessary for the performance of the contract or for the preparation of a quotation.
3.6 Netcloud has no access to data which is processed by customers in the cloud services.
3.7 Netcloud has no possibility to create temporary files due to having no access thereto.
3.8 The Customer confirms that personal data which he processes within the framework of the Cloud Services has been collected and is processed in accordance with the applicable data protection regulations and that the processing carried out by him is permissible.
3.9 The cloud services meet all legal requirements in accordance with the Swiss Data Protection Act and are in particular ISO 27018 certified.
3.10 Data may be disclosed to the following categories of recipients: assigned processors of Netcloud are listed in the contract on assigned data processing.
3.11 Netcloud can provide the necessary infrastructure to a law enforcement agency in the event of any proceedings and on the basis of a legally binding request so that such an authority can carry out its activities, unless this is otherwise prohibited.
3.13 Netcloud will inform customers if it has knowledge or a reasonable suspicion that information has been subject to unauthorised access, has been passed to unauthorised third parties, has been lost or damaged or has been or may be processed in any other way in breach of the law or the contract.
4 Technical requirements
4.1 The customer undertakes to create the technical conditions for the Cloud Services. These include in particular the adjustment of the firewall, sufficient Internet bandwidth with the corresponding transmission quality and any additional system settings.
4.2 The Cloud Services can be operated exclusively with systems and software versions which are compatible with the Cloud Services.
5 Information obligation of the customer
5.1 The customer shall draw Netcloud’s attention in good time to any special technical requirements as well as to the statutory, official and other regulations at the place of destination, insofar as they are of significance for the costs, execution or use of the service.
5.2 The customer must monitor the services and immediately report problems and changing circumstances which could affect the services to Netcloud.
5.3 The customer undertakes to provide correct information for the registration of the Cloud Services.
6 Cooperation obligations of the customer
6.1 The services of Netcloud require the cooperation of the customer. The customer undertakes to perform all necessary preparatory and cooperative actions in good time. In particular, the customer is obliged to provide Netcloud with the access options, information, personnel, technical and organisational requirements, resources and information necessary for the proper fulfilment of the contract in good time and in full and to maintain these for the ongoing services. In this respect, the customer is solely responsible for the selection, deployment and use of the services and their suitability for the purpose intended by the customer.
6.2 If the customer does not fulfil his duties to inform and cooperate, does not do so in time or does not do so properly, he shall be responsible for all consequences.
6.3 The client assumes responsibility for the appropriate use of the services by users and their personnel. If necessary, the client shall draw up regulations for ensuring compliant use of the services (cf. below, section 8. 8 f.).
7 Netcloud’s duty to inform
7.1 Netcloud shall inform the customer at an early stage of possible dangers as well as special technical requirements for the provision of services.
7.2 Netcloud shall monitor the services and report problems and changing circumstances which could affect the services to the customer immediately.
7.3 Netcloud shall inform the customer in good time about planned downtimes, such as maintenance or emergency drills.
8 Use of the Cloud Services
8.1 For cloud services, depending on the circumstances, software and infrastructure may be made available to the customer. The customer undertakes to use these exclusively for the purpose intended.
8.2 Netcloud undertakes towards the customer to provide the services with due care.
8.3 The cloud services are provided via the internet. Netcloud can therefore not guarantee that the cloud services will be available without interruption at all times. The service delivery point is the provider-side network access at Netcloud. The customer is responsible for protecting the data from unauthorised access.
8.4 The use of the Netcloud infrastructure may not be misused for illegal activities under Swiss law.
8.5 The customer assumes sole responsibility for the content of the data and information which is processed in connection with the use of the Cloud Services.
8.6 The customer shall indemnify Netcloud with respect to claims of third parties based on an unlawful use of the Cloud Services or arising from data protection, copyright or other legal disputes associated with the non-contractual or unlawful use of the Cloud Services by the customer. When using the services, the customer must comply with the applicable laws and may not infringe the rights of third parties, in particular intellectual property rights, personal rights and rights to a name. In particular, the customer shall also refrain from storing, distributing and displaying unlawful or immoral content as well as harmful program code.
8.7 The customer undertakes to use the Cloud Services exclusively for the specified purpose, in particular only for its own business field. In particular, the customer may not use or make available to third parties any rights to programs, inventions, copyrights, design, program and know-how beyond its own use outside the purpose of the contract.
8.8 If the cloud services are not used lawfully or if false information is provided by the customer during registration, Netcloud reserves the right to delete the customer’s cloud services or parts thereof.
8.9 The deletion and retention of data is the responsibility of the customer, Netcloud does not archive any data of its customers. After termination of the contractual relationship, Netcloud will delete the respective data of the customer on the cloud infrastructure of Netcloud.
8.10 The Cloud Services may not be resold or sublet by the customer without an explicit contractual agreement.
9 Start of the service period and duration
9.1 The service period starts from the date of installation as well as the notification of service readiness to the customer by Netcloud.
9.2 As soon as services are used by the customer, any associated preparatory actions by Netcloud shall be deemed to have been accepted within three days.
9.3 The cloud services are concluded for an indefinite period.
10.1 The prices for the agreed services result from the corresponding on-call and service contracts.
10.2 The monthly fee which is due shall be owed for the first time from the beginning of the month of the corresponding month of the start of the service period.
10.3 Unless otherwise stated, all prices are in Swiss francs and exclusive of VAT.
11 Terms of payment
11.1 Invoicing takes place on a monthly basis.
11.2 The payment period is 30 days net after invoicing.
11.3 Default in payment shall incur interest on arrears in the amount of two per cent above the respective discount rate of the Swiss National Bank from the due date without any special reminder. Expenses for reminderand payment enforcement procedures will be charged.
11.4 The offsetting of claims against counterclaims is expressly excluded.
12 Service and price adjustments
12.1 Netcloud reserves the right to carry out technical adjustments to cloud services at any time without informing the customer in advance.
12.2 In doing so, Netcloud reserves the right to interrupt the services under certain circumstances in order to be able to carry out such technical adjustments.
12.3 The cloud service prices and services can be adjusted by Netcloud at any time at the beginning of a month. The customer will be notified of these in writing at least 45 days in advance. The new prices apply automatically if the customer does not terminate the contractual relationship in due time.
13 Termination and notice period
13.1 The Cloud Services or parts thereof may be terminated at any time by either party with 30 days‘ notice to the end of a calendar month. A reason for the termination is not necessary.
13.2 Notice of termination must be given in writing, an e-mail fulfils this requirement.
13.3 A termination which does not comply with the rules defined above is void
14.1 The Customer acknowledges that all systems required to provide the Cloud Services are not owned by the Customer.
15.1 The customer is responsible for any damage resulting from breach on his part, in particular due to the non-fulfilment, improper fulfilment or late fulfilment of his duties to cooperate and/or provide information. Netcloud disclaims any liability in this respect.
15.2 Netcloud shall be liable to the extent of the respective contractual value, up to a maximum of one million Swiss francs, for direct damages incurred by the customer in connection with the performance of a contractually agreed service, provided that the customer proves fault on Netcloud’s part. Any further liability, in particular for slight negligence, for indirect or consequential damages such as lost profit, additional expenses or personnel costs on the customer’s part, non-realization of savings, claims of third parties or loss of data, as well as liability for auxiliary persons and damages from delayed performance, is expressly excluded to the extent permitted by law.
16 Jurisdiction and applicable law
16.1 The place of jurisdiction is the registered office of Netcloud.
16.2 The legal relationship shall be governed exclusively by Swiss law, to the exclusion of the Vienna Sales Convention (CISG).
17 Final provisions
17.1 These ToS shall apply in all respects which are not otherwise regulated by mutual agreement. Special provisions of the customer which conflict with these ToS shall only apply if Netcloud has agreed to them in writing.
17.2 Netcloud reserves the right to adapt the ToS to changed circumstances in any future contracts.
17.3 The ToS may be unilaterally amended by Netcloud. Netcloud shall inform the customer accordingly. The new ToS shall be deemed approved unless the customer objects in writing within one month. An objection is deemed to be a termination. The latest ToS of Netcloud can be viewed at any time at www.netcloud.ch.
17.4 The legal transaction between the customer and Netcloud is validly concluded both with a handwritten
signature and with an electronic signature (using Adobe Acrobat Sign or a comparable tool).
Netcloud AG, February 2023