General Terms and Conditions
1 Subject matter of the contract
These general terms and conditions shall govern the legal relationship between Nine Internet Solutions AG (hereinafter referred to as “nine.ch”) and the signatory to the contract (hereinafter referred to as “customer”), who makes use of the services of nine.ch. By his agreement (verbal, written or electronic) or by making use of the services (hereinafter referred to as “services”) the customer accepts these general terms and conditions as an integral part of the contract between him and nine.ch. The terms of the Master Service Agreement (MSA) and the Service Level Agreement (SLA) are overriding these general terms and conditions.
The customer agrees to make use of the services offered by nine.ch in accordance with the general terms and conditions. The special provisions in the respective service contract between the customer and nine.ch are reserved.
2 Start, duration and end of the contract
Unless otherwise stipulated, the contract between the customer and nine.ch shall be concluded for an indefinite period. The contract shall enter into force on the date agreed between the customer and nine.ch. If the customer makes use of a service of nine.ch before the agreed date, then the contract shall enter into force with the date of first use.
The notice period is one month, unless otherwise stipulated. Fixed-term contracts shall end without notice on the expiry of the agreed period.
Notice of termination may be given in writing by either of the parties to the contract, subject to the service-specific notice periods at the end of a specific month.
However, nine.ch reserves the right to terminate the contract at any time for an important reason, namely such as use of services for the purposes of, or in connection with, criminal acts.
3 Obligations of the customer
The customer shall be responsible for the services to which he subscribes being used in accordance with the law and with the contract. nine.ch shall not be liable for any damage resulting from use in breach of the law or of the contract.
The customer shall take all necessary measures to prevent unauthorised intrusions into his own and third party systems, against the dissemination of viruses and to comply with the applicable regulations of the laws relating to telecommunications, data protection and copyright.
The customer agrees not to use the services to commit nor to support criminal actions and will take the necessary steps within his sphere of responsibility to prevent any criminal use by the customer’s users or third parties. This applies in particular with respect to acts of unlawful games of chance, money laundering and the distribution and enabling of access to portrayals of violence, of so-called hard pornography, of provocations to commit crimes or acts of violence, interferences with freedom of religion and of culture or of racial discrimination within the meaning of the Swiss Criminal Code. If the services imply an adult verification by rights, a written permission of nine.ch is needed in addition. nine.ch also prohibits the sending of unwanted mass advertising mailings (spam).
The customer is obliged to hold nine.ch harmless for claims made against nine.ch because the customer or one of his employees or users uses the service in breach of this contract or has misused it for criminal activities.
The customer shall inform nine.ch immediately of any faults, problems or interruptions of services, equipment or software of which he becomes aware and in particular also of cases of use of the Services in breach of the law or of this contract by the customer’s users and by unauthorised third parties (e.g. hackers).
It is the responsibility of the customer to protect the equipment and software in his possession or the equipment and software leased by nine.ch used for the exploitation of the services and also the data, including program data used for this purpose, from unauthorised access, manipulation, damage and loss. nine.ch shall not be liable for any losses incurred by the customer in this connection. If no agreements have been made about back-up services, the customer shall take full responsibility for the data himself.
Not permitted is the operation of open relays and VPN anonymous proxies.
If a customer shares a server system with other customers, as is typically the case with web hosting or virtual servers, the customer shall show consideration and limit any excessive demand and therewith interference with the service of the other customers (“Fair Usage”). Should this be unsuccessful, nine.ch will offer an upgrade to a more powerful service class. If the customer does not take action, nine.ch reserves the right to withdraw from the contract, immediately if necessary.
If an agreed volume of data (“traffic”) has been agreed, this should be utilised over the agreed period as evenly as possible. If, within seven consecutive days, half of the agreed data traffic volume for one month is required, Nine shall reserve the right to collect a supplementary payment.
4 Prices, billing and payment
Unless otherwise agreed, the prices are in CHF, net ex. VAT. The term of payment is 20 days. The services shall be billed three months in advance. In case of early termination, the outstanding balance shall be paid off. Installation costs will be billed together with the first invoice amount for the services.
After expiry of the term of payment, the customer shall be in default from the due date of the demand and shall pay interest on arrears in the amount provided by law, without the need for further warning. A dunning charge of CHF 20.00 will be charged with the second warning. In the case of a third warning, nine.ch reserves the right to interrupt or cancel the services without further notice, including all data and backups. The customer will be billed a fee of CHF 100.00 for reinstatement of service and a prepayment of one invoice period.
5 Rights and obligations of nine.ch
nine.ch shall provide the agreed services within the bounds of the corporate and technical resources available to it. The customer shall grant nine.ch all necessary support so that the latter may provide its services.
nine.ch attaches the highest possible importance to a very high reliability and endeavours to provide its services free from problems and interruptions within the bounds of its operational resources. For managed systems regular updates are required that for. Minor updates will be installed by nine.ch without further notice, major distribution upgrades will be announced and a testing environment offered. Without the upgrade the security support will be discontinued and the services may be compromised. That is the reason why nine.ch may require the upgrade for the further operation. Should the customer choose not to upgrade, nine.ch reserves the right to terminate the contract in compliance with the termination periods.
The normal working hours applicable (office opening times) shall be Monday - Friday, 09.00 am - 06.00 pm, with the exception of Swiss national and cantonal public holidays of the Canton of Zurich as well as 2nd January.
Problems and interruptions, which have been caused by the customer or the users accountable to him, will be corrected at his expense by nine.ch. The work performed will be charged at the respectively applicable current rates of nine.ch.
In the event of a well-founded suspicion that the services are being used in breach of the law or of the contract by the customer, the customer’s users or third parties who have gained access to the services via the computer equipment of the customer, nine.ch shall be entitled, at any time and if necessary without prior notification, to prevent the distribution, the allowing of access or the calling up of unlawful content or to interrupt the connection to the customer, without any obligation of liability or of compensation arising here from.
nine.ch holds on to the Code of Conduct Hosting of the simsa – swiss internet industry association.
The Customer may be held liable for damage which nine.ch or third parties suffer by the use of the services by the customer or the customer’s users.
nine.ch shall endeavour, within the bounds of its human and financial resources, to ensure that the services offered are of high quality. nine.ch shall, however, accept no responsibility for problems or failures of the services. In particular nine.ch accepts no liability for any damage caused by any criminal activities of third persons like phishing, dos-attacks, hacking or malware. Insofar as legally permissible, nine.ch accepts no liability for direct or indirect losses for itself and for the third parties used by nine.ch to execute the contract. This applies in particular to consequential losses, such as liability for lost profit, and liability for the loss of data or for third party claims.
nine.ch draws the attention of the customer to the fact that when spam filters are used, desired messages may also be filtered out.
7 Closing provisions
Nine reserves the right to amend these general terms and conditions at any time. The new terms and conditions will be notified to the customer in writing or other appropriate manner and unless the customer objects within a period of one month, shall be deemed as approved.
Should any individual provision or provisions of these general terms and conditions be or become void, this shall not affect the remaining provisions hereof. These shall remain unamend and retain their validity. The invalid provision(s) shall be replaced by valid provision(s) coming as close as possible to the sense and spirit and purpose of these terms and conditions.
The contract and these terms and conditions are subject to the law of Switzerland. The exclusive judicial venue shall be Zurich. nine.ch is entitled also to bring suit against the customer at his domicile and/or registered office.
This English version of the general terms and conditions is a translation of the original German version of the general terms and conditions. If there are any contradictions or inconsistencies between the original German version of the general terms and conditions and any version or translation of the general terms and conditions in any other language, the German version of the general terms and conditions prevail.
These general terms and conditions are valid from 8th May 2014 and replace all previous publications.
In case of doubt, only the original german version (AGB) is valid.