GTC - General Terms & Conditions


Version of the document: May 2020

1. Scope and Contractual Elements

  1. These General Terms and Conditions ("GTC") together with the other documents referenced herein govern the legal relationship (the "Agreement") between VSHN AG ("VSHN") and the customer of VSHN ("Customer", each a "Party" and together the "Parties").

  2. These GTC apply to all legal relationships between the parties, regardless of the type of conclusion of the Agreement (e.g. via the VSHN websites, by e-mail or in writing). Any business or purchasing conditions of the Customer shall not apply.

  3. In the event of contradictions between contractual documents (if any), the following order of priority shall apply:

2. Order and Scope of Services

  1. The concrete scope of services results from the applicable contractual components, in particular the orders, the service description and SLA.

  2. Unless agreed otherwise, the current prices and service descriptions on the VSHN websites (www.vshn.ch and www.appuio.ch) apply. The indicated prices and service descriptions do not constitute a binding offer.

  3. The Customer can at any time make a binding inquiry to VSHN for an order or for an adaptation or extension of an existing Agreement, subject to agreed minimum term and minimum purchase obligations. Upon confirmation of the order by VSHN in a suitable form (incl. e-mail), the scope of services is legally agreed.

  4. In the case of Agreement conclusion by digital means, VSHN reserves the right to withdraw from the Agreement or from the adjustment of the Agreement within 14 working days after conclusion of the Agreement without compensation and without providing reasons.

  5. Further VSHN services, such as support services that exceed the agreed support, or additional expenses incurred by VSHN due to Customer’s inadequate performance of its obligations, will be charged on a time and material basis according to the hourly rates of VSHN valid at the time.

  6. VSHN is entitled to change the services including the SLA at any time. Changes which affect the services purchased by Customer will be communicated by VSHN in text form at least one month before the date of their coming into effect. Customer’s consent is considered as granted if he has not indicated his refusal prior to the proposed date of entry into force.

3. VSHN’s Obligations

  1. VSHN provides the contractually agreed services (the "Services) professionally and with reasonable care according to the current state of the art.

  2. Subject to timely payment of the remuneration, VSHN grants the Customer the non-exclusive right to use the Services during the Agreement period for its own purposes in accordance with the law and the Agreement. Usage by third parties (including group companies of the Customer) requires the express written consent of VSHN.

  3. For Services according to the website www.appuio.ch the following applies: The present GTC apply to the Services of VSHN. For services of the Puzzle ITC GmbH, the latter is solely responsible and any liability of VSHN is excluded.

4. Customer’s rights and duty to cooperate

  1. The Customer is entitled to use the Services in accordance with the law and the Agreement.

  2. The Customer is generally obligated to undertake the necessary actions for the contractual performance of the Services by VSHN. This includes in particular:

    • Provision of access to the systems administered by VSHN for VSHN staff and automation and monitoring systems (in accordance with VSHN’s current technical specifications).

    • Enabling access to external systems designated by VSHN for automation, patching and monitoring (in accordance with VSHN’s current technical specifications).

    • Designation of responsible roles for the VSHN solutions, IT infrastructure and peripheral systems in use.

    • Documentation of emergencies and error messages (by written description, delivery of print screens etc.) and transmission via ticket system.

    • Timely information to VSHN in case of planned changes to the platform.

    • Use of VSHN-approved valid software versions, which are still supported by the manufacturer, and hardware.

    • Support of VSHN in the analysis and correction of possible program errors.

    • Securing data and software against unintentional loss.

    • The Customer shall ensure that it is authorised by third parties to use the corresponding products (such as operating systems, databases, software etc.) and that it has the corresponding licences.

    • Enabling the maintenance window for VSHN and information to end customers.

    Further obligations to cooperate and requirements for the contractual provision of the Services by VSHN arise from the other contractual components, especially the service description and SLA.

  3. The Customer is responsible for the accuracy of the data transmitted to VSHN. In particular, all personal data of the Customer must always be updated in the event of a change (in the Customer portal (ticket system) or by notification to VSHN via letter or e-mail).

  4. The Customer shall inspect the received Service immediately for correctness, completeness and functionality and inform VSHN immediately about defects, malfunctions or interruptions of Service, systems or software.

  5. The Customer shall take all necessary measures to prevent unauthorised access to its own and third-party systems, to prevent the spread of spam and viruses and to comply with the applicable provisions of telecommunications, data protection and copyright law. The Customer undertakes not to use the Service either to commit or to support criminal acts, and will take the necessary measures within its area of responsibility to prevent criminal use by users pertaining to the Customer or third parties. If a third party claims a violation of rights by the data, content and / or information provided by the Customer, VSHN is entitled to suspend the data, content and / or information in whole or temporarily.

  6. If a Service is overused, VSHN offers an upgrade to more powerful services. Excessive use of the Services occurs when the threshold value defined in VSHN monitoring is exceeded. In case of refusal of this upgrade, the SLA becomes invalid and VSHN reserves the right to withdraw from the Agreement immediately and to discontinue the Services.

5. Remuneration and Payment

  1. The Services of VSHN are invoiced monthly in advance, unless otherwise agreed.

  2. The contractually agreed prices apply. Unless otherwise agreed, the prices are in CHF net excluding VAT. The payment period is 10 days after issuance of the invoice. Invoices which the Customer does not contest up to their due date in good faith and stating reasons, or which are paid before the expiry of the payment period, shall be deemed to have been accepted.

  3. Services requested by the Customer, the prices of which were not specifically agreed, will be invoiced according to the effective effort at the standard rates of VSHN in force at the time of conclusion of the Agreement.

  4. Travel, catering and accommodation expenses shall be borne by the Customer and will be invoiced separately.

  5. If no payment or only an incomplete payment is made by the end of the payment period, the Customer shall be in default without further ado and shall owe the statutory default interest as well as cost-covering reminder fees of CHF 30.00 for the first reminder, CHF 50.00 for the second and each subsequent reminder. Furthermore, the Customer shall be liable for debt collection costs, including court and legal fees.

  6. After expiry of the payment period, VSHN is entitled to stop the provision of the Services and/or to terminate the Agreement without notice and without compensation. The expenses of VSHN for the adjustment and reconnection will be charged to Customer according to the current hourly rates.

  7. The Customer shall not be entitled to make a settlement declaration or plea.

  8. VSHN is entitled to change the remuneration with a notice period of one month effective at the end of the next month, for the first time 12 months after conclusion of the Agreement, and to adjust the Agreement accordingly. In the event of an increase, the Customer is entitled to terminate the Agreement in writing within 14 days of notification of the increase, effective from the date of the price increase.

6. Duration of agreement and Termination

  1. Orders for continuous Services shall be concluded for a specific term, and can be cancelled in writing thereafter, subject to the notice period. Unless otherwise agreed, the minimum term is twelve months and the notice period is three months.

  2. Both Parties have the right to terminate the Agreement or individual orders for cause without notice. Cause exists in particular if the Customer uses the Services in a manner contrary to law, the Agreement or the purpose or makes them available to unauthorised third parties, or if there is reasonable suspicion that the Customer is insolvent.

  3. Upon termination of the Agreement, Customer’s right to access the Services of VSHN expires immediately.

  4. Customer is responsible for ensuring the continuity of its own systems and the backup of data prior to termination. VSHN supports the Customer on request and provided capacity in the transfer of services and data to systems of the Customer or third parties, and may charge the expenses at standard rates.

  1. VSHN warrants that the use of the Services of VSHN by the Customer in accordance with the law and the Agreement does not violate any intellectual property rights of third parties.

  2. If a third party alleges against the Customer that a property right of this third party has been infringed, VSHN shall defend the Customer against this claim at its own expense, provided that the Customer (i) notifies VSHN immediately (within 10 working days at the latest) in writing by registered mail, (ii) grants VSHN control of the defence and any settlement negotiations and (iii) supports VSHN appropriately and to a reasonable extent. A violation of this obligation by the Customer leads to the loss of any claim against VSHN.

  3. If, at the discretion of VSHN, the use of the Services by Customer violates or is likely to violate the intellectual property rights of a third party, VSHN has the right to choose between the following measures: (i) modify the Services in such a way that no more intellectual property rights are infringed; (ii) procure for Customer the right to continue to use the Services; (iii) replace the Services with other Services which do not infringe any third-party intellectual property rights and which either meet Customer’s requirements or are equivalent to the replaced Services; or (iv) revoke the Services and reimburse Customer the remuneration paid minus a reasonable amount for use and loss of value.

  4. Customer shall not be entitled to legal warranty claims if the infringement of third-party property rights is due to the fact that Customer has used the Services under conditions other than those contractually provided or if the infringement of property rights is based on a concept originating from Customer or a system used at Customer’s request.

8. Material Warranty

  1. VSHN has exclusive influence on the systems described in the service description. Accordingly, VSHN assumes no warranty for disruptions or failures of the Services, if there are dependencies to third parties (such as IT infrastructure of third-party providers) or if the disruption or failure was caused by the Customer or by a person attributable to him. VSHN would like to point out that, when using spam filters, desired messages can also be filtered. VSHN can also not guarantee that the Services will function without interruption and trouble-free, that VSHN can correct all errors, and/or that the Services are free of harmful software, such as viruses and / or malware. Furthermore, VSHN cannot guarantee that the data requested by the Customer is transmitted correctly and without delay via the Internet.

  2. VSHN provides no guarantee that the data, content and / or information transmitted by the Customer to the servers of VSHN remain available after the termination of this Agreement.

9. Acceptance, Defect Rectification and SLA

  1. If the services of VSHN involve the creation of a work within the meaning of Art. 363 ff. Code of Obligations (a "Work"), the Customer shall inspect the Work immediately after delivery. The same shall also apply to the delivery of part of a Work, whereby defects in part of a Work may no longer be notified in the case of delivery of the entire Work. The inspection period lasts a maximum of five working days from delivery of the respective Work by VSHN.

  2. Customer must notify VSHN in writing of significant defects (i.e. defects that prevent the use of the work) during the inspection period of the relevant Work immediately after discovery in such a way that the significant defects are comprehensible and reproducible for VSHN; if a significant defect claimed by the Customer is not comprehensible and reproducible, there is no relevant significant defect. Non-substantial defects (i.e. defects that only hinder the use of the Work) do not hinder the acceptance and will be corrected by VSHN within the framework of the SLA.

  3. If (i) the Parties sign an acceptance protocol without significant defects within the framework of an acceptance, (ii) the Customer does not notify VSHN of significant defects during the inspection period or (iii) begins with the productive use of the work, the acceptance is deemed to have taken place.

  4. The significant defects reported by the Customer to VSHN during the inspection period must be remedied by VSHN within a reasonable period. If the substantial defects are remedied within the said period, acceptance shall be deemed to have been effected after the expiry of said period. If VSHN does not succeed despite repeated efforts to remedy the reported defect, and the usability of the Services is thereby significantly reduced or excluded, the Customer must set two further reasonable grace periods (each at least 20 days) for the remedy of defects. After their unsuccessful expiration, the Customer can withdraw from the Agreement, whereby the Agreement and the access authorization to the servers of VSHN ends. Further claims of the Customer are excluded to the extent permitted by law.

  5. The procedure for all other defects is governed by the provisions of the respective agreed SLA. Unless otherwise specified in an order, the 'Standard SLA' shall apply to Services of the respective order in accordance with the SLA. The availability of the infrastructure and services of third-party providers (including cloud and network providers) is subject to the terms and conditions of those third-party providers. VSHN does not warrant their availability.

10. Liability and Indemnification

  1. VSHN is liable to the Customer without limitation for damages caused intentionally or by gross negligence, and for property damage and personal injury. The liability of VSHN for negligently caused damage and for damage caused by auxiliary persons is excluded, as far as legally permissible.

  2. The Customer is responsible for the legally and contractually compliant use of the Services he has obtained. VSHN is not liable for damages resulting from use in violation of the law or the Agreement, and the Customer is liable for all damages incurred by VSHN as a result. The Customer shall indemnify VSHN for all damages resulting from breach of Agreement or rights, including third-party claims and any legal and attorney’s fees.

  3. VSHN is not liable for service delays or disruptions and damages that arise due to events that are not the responsibility of VSHN or that make the performance significantly more difficult or impossible and that cannot be avoided, such as natural disasters of any kind, pandemics, riots, blockade, fire, civil war, embargo, earthquakes, hostage taking, war, revolution, sabotage, strikes, terrorism, traffic accidents or production disruptions, such as the failure of communication networks and gateways of other operators.

11. Confidentiality

  1. VSHN undertakes to treat Customer data with care. Customer gives VSHN its consent that its data may be used for the fulfilment of contractual obligations and may be used in anonymous form to improve the services and products of VSHN.

  2. Both Parties undertake to treat as confidential all information not generally known which they have learned from the other Party or about its Customers and business relations in connection with the provision of their services within the scope of the contractual relationship. Furthermore, they undertake not to make such information available to third parties, either in whole or in part, nor to publish such information, unless and insofar as the other Party expressly permits this, this becomes necessary due to a court order or legal obligation or this is necessary for the execution of the Agreement.

  3. Subject to prior authorization by the Customer, VSHN has the right to use names and marks of the Customer and the agreed services of VSHN for reference purposes. The Customer can only refuse authorization for good cause, which shall include, but not be limited to, compliance with regulatory requirements by FINMA (or a regulator with similar requirements). Further advertising and publications about project-specific services require the separate consent of the Customer. The Customer may be informed about current developments and new services of VSHN itself and by partners of VSHN. The Customer may at any time declare in writing that he does not wish to receive such information.

  4. If the Customer processes or discloses personal data within the meaning of the Swiss Data Protection Act in the context of the use of the VSHN Services, the Customer will first obtain the necessary consent of each affected individual.

12. Data Protection and Security Measures

  1. VSHN processes Customer personal data in accordance with the applicable data protection law. VSHN collects, stores and processes only data that is required for the provision of the Services, for the handling and maintenance of Customer relations, for ensuring a high quality of service, for the improvement of existing and development of new products, for the security of operations and infrastructure, and for invoicing.

  2. The Customer confirms that VSHN is entitled to process the data transmitted by Customer in accordance with this Agreement.

  3. VSHN undertakes to take all appropriate technical and organizational measures for the protection of Customer data.

  4. As far as legally prescribed, VSHN concludes a data processing agreement with the Customer.

13. Intellectual Property

  1. Unless otherwise agreed in writing, all rights to existing intellectual property or intellectual property arising during the performance of the Agreement with respect to VSHN’s services or products (e.g. programs, templates, data, trademarks, patents, copyrights, etc.) remain with VSHN or with the third parties used by VSHN.

  2. VSHN grants the Customer a non-exclusive, temporally unlimited and non-transferable right to use the Services (including Works) for his own internal use.

  3. Third-party software is subject to the third-parties' license terms.

14. Non-Solicitation Agreement

  1. The Customer undertakes not to entice away employees and auxiliary persons of VSHN who are or were involved in the conclusion or execution of the Agreement, during the term of the Agreement and for one year afterwards, neither for themselves nor for others, or to induce them in any other way to give up their employment.

  2. In the event of a breach, a contractual penalty in the amount of a previous annual salary of the person concerned (employee and auxiliary persons) is due.

15. Final Provisions

  1. The present Agreement replaces all previous agreements, correspondence, declarations, negotiations or arrangements between the parties concerning the subject matter of the Agreement. This also applies to offers, tenders or specifications. The only exception to this is if explicit deviations from this Agreement have been agreed in writing.

  2. VSHN has the right to transfer rights and obligations under this Agreement in whole or in part to third parties. The transfer of rights and obligations under this Agreement by the Customer to third parties requires the written consent of VSHN.

  3. VSHN reserves the right to adapt these GTC at any time and informs the Customers in advance of the changes in a suitable manner (including in electronic form). Amendments or supplements to these GTC shall become an integral part of the Agreement if the Customer does not object within 30 days of becoming aware of the amended provisions.

  4. Should one or more provisions of these GTC or the remaining Agreement be or become invalid, ineffective or void, this provision shall be replaced by a valid and effective provision that comes closest to the meaning of the original provision and corresponds to the economic balance of the Parties.

  5. If this contract is issued in several language versions, only the German version is authoritative.

  6. The present Agreement and all disputes arising from it are subject exclusively to substantive Swiss law, excluding its conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction is Zurich.