Terms

Digital Storm GmbH, Sägestrasse 50, 5600 Lenzburg

1 Subject matter of the GTC

1.1 These General Terms and Conditions (hereinafter: “GTC”) govern the mutual rights and obligations of Digital Storm GmbH, Sägestrasse 50, 5600 Lenzburg (hereinafter: “Digital Storm”) on the one hand and the customer of Digital Storm (hereinafter: “Customer”) on the other.

1.2 These GTC apply to all contracts between the parties even without express reference to them. Any terms and conditions of business or purchase of the Client are deemed to be excluded. Agreements that deviate from these GTC, including this written form clause, must be made in writing, excluding e-mail.

1.3 These GTC together with the order form (offer), the service descriptions and the Service Level Agreement form the respective service contract.

In the event of contradictions between the documents, the following order of precedence shall apply:

1. Order form / Accepted offer / Accepted contract
2. GTC
3. AVV
4. Service Level Agreement

2 Commencement, duration and termination of the service contract

2.1 The contract with Digital Storm for the use of its services is concluded upon submission of the online order form or by other electronic means or upon signing a written order form or contract,

2.2 The service contract is concluded for a period of 12 months, unless otherwise agreed.

2.3 Without notice, the service contract shall be automatically renewed for the same agreed term 3 months before expiry. In any case, the contract may be terminated for the first time at the end of the minimum contractual term agreed between the parties in the service contract.

2.4 Either party may terminate the service contract at any time with immediate effect for good cause. This applies in particular if the services available from Digital Storm or the third-party services obtained by means of this service are obtained, used, made accessible or passed on to unauthorized third parties contrary to the law, the contract or the intended purpose, and if these GTC, in particular Clause 4.3, are disregarded by Digital Storm or third parties.

2.5 Upon termination of the service contract, regardless of the legal grounds, Digital Storm will only keep the data available until the last hour of the paid contract period so that the client can retrieve it. Thereafter, the data will be irrevocably deleted.

3 Services provided by Digital Storm

3.1 Digital Storm provides its services within the framework of the service agreement with the Client and the resources available to it.

3.2 Digital Storm’s obligation to perform results specifically from the service descriptions of Digital Storm and from the other parts of the contract with the client, if any.

3.3 Digital Storm provides the services professionally and carefully. The services are generally available to the participant 24 hours a day, 7 days a week.

3.4 Digital Storm undertakes to take or carry out measures to rectify faults and malfunctions of the services within the normal working hours of the Digital Storm office. Normal working hours are the weekdays Monday to Friday, 9 a.m. to 5 p.m., with the exception of federal holidays and cantonal holidays at Digital Storm’s registered office. No support services are provided outside office hours.

3.5 Digital Storm is responsible for the availability of its infrastructure (servers, etc.). For maintenance purposes, Digital Storm may carry out maintenance work that affects system availability at any time with or without notice. Planned interruptions do not affect the system availability measurements.

4 Obligations of the client

4.1 Digital Storm is available to the client’s IT manager / primary system administrator during office hours. Unless otherwise agreed, other users can access our support indirectly via this user. Instructions are available for users and the primary system administrator, which should be taken into account as the first point of contact,

4.2 Upon conclusion of the contract, the customer undertakes to accept and pay for the contractual services/products. The customer can make “upward” adjustments to the scope of services (larger packages) at any time. The reduction “downwards” to a more favorable package is possible at the end of the current contract period. Subject to the notice period.

4.3 The customer shall refrain from disseminating information and image material with illegal content. The client shall not use the services of Digital Storm in an illegal or inappropriate manner. In particular, but not exclusively, it is prohibited to

• Using messages / messaging functions (in particular SMS) for purposes other than their intended purpose.
• Using artificial intelligence functions for purposes other than their intended purpose
• Incitement to violence within the meaning of Art. 259 StGB
• Racial discrimination within the meaning of Art. 261 SCC
• Instructions or incitement to criminal behavior
• Defamatory statements about third parties or publications that violate personal rights
• Information that infringes copyrights, related rights or other intellectual property rights of third parties.
• Not to use the Digital Storm services to harm or harass third parties, in particular by unauthorized intrusion into third-party systems (hacking), spreading viruses of any kind or by sending unsolicited e-mails (spamming, junk mail and the like)
• The provision of copyright-protected content is prohibited unless the operator is in possession of legally valid licenses that permit distribution in Switzerland. Such licenses must be presented to Digital Storm upon request.
• Falsifying mail and news headers and IP addresses;
• operate download pages or pages that generate high traffic.
• To operate download / synchronization folders or folders that trigger high traffic.

5 Prices, remuneration, terms of payment, retention of title

5.1 All agreed prices for Digital Storm services are in Swiss francs and are exclusive of statutory VAT and other public charges.

5.2 Invoices are payable within 14 days, unless otherwise agreed in writing. After expiry of the payment period, the customer is in default without a reminder. Any objections to the invoice must be raised by the customer in writing within the payment period, otherwise the invoice shall be deemed approved.

5.3 The prices for Digital Storm services are set out in the current price list. The client will be notified of price changes as soon as possible. Digital Storm may make price changes at any time during the term of the contract if cost factors have changed. Digital Storm has the same right in the event of an unusually intensive or particularly costly use of the Digital Storm services by the client.

5.4 Delivered goods remain the property of Digital Storm until full payment has been made. Digital Storm may have a retention of title entered in the relevant register. The client is not permitted to pledge or assign the goods as security. Intellectual property rights are not transferred to the client until full payment has been made. Processing or transformation shall always be carried out for Digital Storm as the owner or authorized party, but without any obligation on its part. If Digital Storm’s ownership expires due to combination or sale, it is agreed that the resulting claims of the client – in the case of combination on a pro rata basis – are transferred to Digital Storm.

5.5 Services that are offered on an unlimited basis (in particular but not limited to: storage, traffic, computing power, support. SMS messages, AI queries, etc.) are subject to the Fair Use Policy. Fair Use Policy means that a customer does not exceed twice the service used by the average of comparable customers. If this is nevertheless the case, this can lead to additional costs.

6 Default

6.1 If the client is in default of payment, Digital Storm is entitled to suspend or block its services. In this case, the client has no claim to service fulfillment by Digital Storm and remains obliged to pay the periodically due fees. A processing fee of at least CHF 50.00 will be charged for reactivation.

6.2 In the event of late payment, Digital Storm will charge default interest of 12%.

6.3 If the Client is in arrears with the payment of the fees or a part thereof, Digital Storm may terminate the contractual relationship without notice 60 days after invoicing.

6.4 The client must reimburse Digital Storm for collection costs, legal fees and court costs.

Digital Storm reserves the right to assert further claims for late payment. For reminders, Digital Storm may charge reminder fees of at least CHF 20.00 per reminder.

7 Right of set-off and retention, assignment, transfer

7.1 Digital Storm may offset its claim against counterclaims of the client. The client is not entitled to offset any counterclaims against Digital Storm’s claims.

7.2 The client undertakes to waive the assertion of retention rights against Digital Storm.

7.3 Unless otherwise agreed, all contractual rights and obligations are neither transferable nor can they be assigned to third parties.

8 Intellectual property rights

8.1 Unless otherwise agreed in writing, the customer is granted a non-exclusive, perpetual and non-transferable right to use software and trademarks or service marks for its own internal use. Supplementary regulations on the use of software from the manufacturer are hereby included. The software may not be made accessible to third parties. For standard products of third parties, their license terms shall apply insofar as they contain further restrictions.

8.2 If, in deviation from Section 8.1 above, it is agreed that rights of use for software can be transferred to third parties, all copies must bear the original copyright notice and all other protective notices. The customer is responsible for the software used and the correct licensing.

8.3 If, in connection with the subject matter of the contract (software development or implementation of other projects), claims are asserted against the customer by third parties for infringement of intellectual property rights, the customer is obliged to notify Digital Storm in writing within 5 calendar days. The client may not take any legal action without the prior consent of Digital Storm and must leave the defense against such claims to Digital Storm upon request, in particular the conduct of the proceedings, including the conclusion of a settlement.

8. 4 If the use of the subject matter of the contract by the client or parts thereof is prohibited by a court decision or if, in the opinion of Digital Storm, there is a threat of legal action for infringement of intellectual property rights, Digital Storm has the right to choose between the following measures: (i) modify the subject matter of the contract in such a way that it no longer infringes any intellectual property rights; (ii) procure for the client the right to continue using the subject matter of the contract; (iii) replace the subject matter of the contract with a subject matter that does not infringe any intellectual property rights of third parties and that either meets the client’s requirements or is equivalent to the replaced subject matter of the contract; or (iv) take back the subject matter of the contract and refund to the client the consideration paid, less a reasonable amount for use and loss of value.

8.5 The above obligation does not apply to contractual items for which the infringement of intellectual property rights is based on a concept originating from the customer or on the fact that the contractual item was modified by the customer or operated together with contractual items not supplied by Digital Storm.

9 Warranty

9.1 Digital Storm only has influence over those systems that are located in its network. Digital Storm can therefore not guarantee the uninterrupted and trouble-free functioning of the services or absolute protection of its network against unauthorized access by third parties (e.g. cyberattacks, DDoS, etc.) or unauthorized eavesdropping or spying or offer any other impairments.

9.2 If Digital Storm sells third-party products (in particular hardware and software) to the client, the client is entitled to the same manufacturer’s warranties as Digital Storm. Expenses incurred by Digital Storm as a result of consequential damage due to defective hardware or software are not covered by the manufacturer’s warranty. Likewise, expenses incurred by Digital Storm after the delivery of third-party hardware and software to the customer are not covered by the manufacturer’s warranty. This includes in particular the reinstallation of programs, configuration of hardware parts and other expenses in connection with the delivery of the hardware and software. These expenses must be reimbursed by the client to Digital Storm in accordance with the current price list.

9.3 Warranty services are generally provided during normal business hours at Digital Storm’s domicile by appropriately trained specialist personnel. Any necessary transportation and/or travel costs incurred by Digital Storm for the provision of warranty services shall be borne by the client.

9.4 In the event of disruptions in the purchase and use of services, the client is only entitled to withdraw from this contract if it has informed Digital Storm of the disruption immediately in writing and has set a reasonable deadline twice to remedy the disruption. Announced interruptions of the services, in particular as a result of maintenance work by the relevant media supplier or force majeure events, are not considered disruptions. Unless expressly agreed, fees already paid will not be refunded. In the event of justified claims, Digital Storm will always offset these against future subscription fees in the form of a credit note. The burden of proof regarding unavailability lies with the client.

9.5 Digital Storm does not guarantee data integrity. Any warranty for the accidental disclosure, damage or deletion of data sent, received or stored on its system is excluded.

9.6 The customer must submit complaints within 30 days, otherwise the warranty rights shall be deemed forfeited.

9.7 Any warranty in excess of clause 9 is excluded.

10 Liability of Digital Storm

10.1 Digital Storm is liable for damage to property and personal injury caused intentionally or through gross negligence within the scope of this contract, as well as for damages arising from product liability.

10.2 Any further liability for direct or indirect damage, for direct or indirect damage, for consequential damage, loss of profit, claims by third parties and for consequential damage from loss of production, loss of or damage to data and liability for slight negligence, regardless of the legal basis, is completely excluded to the extent permitted by law.

10.3 Unless already excluded in accordance with clause 10.2, Digital Storm is liable exclusively within the scope of the warranty and regardless of the legal basis, for damages that are demonstrably attributable to culpable conduct on the part of Digital Storm, up to a maximum of the average monthly amount of the agreed service owed in the previous 12 months.

10.4 Digital Storm is expressly not liable in the following cases:

• Direct or indirect consequential damage
• consequential damages
• Electronic messages that are transmitted incorrectly, not at all, in an unlawful manner or are intercepted by third parties;
• Missing or inadequate confidentiality of encrypted data;
• Processing errors in the handling of business transactions via the Internet (electronic commerce), in particular not in the case of transmission errors of credit card data or other payment information;
• legal disputes resulting from domain name registrations or domain name deletions initiated by Digital Storm on behalf of the client;
• Damage incurred by the client in connection with a data edition within the meaning of Section 14.3. of these GTC
• For damage to or loss of data or documents. It is the customer’s responsibility to ensure that appropriate backup copies are available. The client undertakes to protect and fully indemnify Digital Storm AG in the event of third-party claims;
• lack of consent from the client’s employee regarding access to the client’s customers;
• misuse of its communication infrastructure by third parties and interference by third parties (e.g. computer viruses, unauthorized modification by hackers and sending of e-mails), as well as cyber risks.

10.5 Furthermore, any liability of Digital Storm employees, bodies and Digital Storm vicarious agents (third parties/subcontractors) is excluded.

11 Liability of the client

11.1 The client is fully liable for the data used in its environment.

11.2 The Client is liable to Digital Storm for the unlawful use of the Services and for having obtained all necessary consents from data subjects and/or authorizations from authorities.

12. force majeure

12.1 Digital Storm is not liable for delays or disruptions in performance and damage caused by events for which Digital Storm is not responsible or which make performance significantly more difficult or impossible and which cannot be averted, such as natural disasters of any kind, riots, blockades, 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.

13 Data protection and information security

13.1 We collect, store, process and transmit personal data required for or prior to the performance of a contract in compliance with all applicable provisions, including the European General Data Protection Regulation (GDPR) and Digital Storm’s Privacy Policy. Our privacy policy informs the customer about the categories of data processed, the purpose and legal basis of the processing, the recipients and the rights of the data subject, the processing period and additional information in accordance with Art. 8 FADP and Art. 13 et seq. GDPR. You can find our privacy policy on our website: https://www.homer.center/de/auftragsverarbeitungsvertrag/

13.2 Digital Storm may access your personal data in the context of support and maintenance. As this constitutes processing within the meaning of data protection legislation, a data processing agreement (DPA) must be concluded. If no explicit agreement is made, the DPA as published on our website applies: https://www.homer.center/de/auftragsverarbeitungsvertrag/

14 Confidentiality

14.1 The parties undertake to keep confidential information of the contractual partner designated as confidential and not to make it accessible to unauthorized third parties. In particular, the content of contracts, including annexes, is considered confidential.

14.2 Digital Storm is entitled to hand over customer addresses to third parties, namely criminal authorities, if illegal or immoral acts are detected. The client warrants to Digital Storm that it has the consent of its employees for access to email accounts and can prove this upon request.

14.3 Digital Storm is entitled to hand over the customer’s data to third parties, even if no illegal or immoral acts have been detected, if Digital Storm is requested to do so by Swiss or foreign law enforcement authorities (hereinafter referred to as “data disclosure”). In particular, Digital Storm is not obliged to take any steps to prevent such data edits to third parties or to make any requests for sealing. Digital Storm is also not obliged to inform the client about such data editions, especially not in the event that Digital Storm has been prohibited from disclosing them. Digital Storm shall not be liable to the client for any damages arising from data editions. Digital Storm expressly reserves the right to charge the client in full for any costs (time and materials) incurred in connection with a data edition.

15 Final provisions

15.1 The place of performance is CH-5600 Lenzburg.

15.2 Should provisions of these GTC be void or legally invalid, the remaining provisions shall continue to apply. In this case, void or legally ineffective provisions shall be replaced by legally effective provisions that come as close as legally possible to the economic effects of the ineffective provisions.

15.3 Digital Storm is entitled to amend these GTC and services at any time, insofar as Digital Storm deems this appropriate for technical reasons or due to market developments or supplier conditions, and insofar as the interests of the Client – in particular the appropriateness of performance and consideration – are not disproportionate as a result.

15.4 For all disputes, differences of opinion or claims arising from or in connection with these GTC or the service contracts, a mediation procedure must first be requested. Both parties undertake to participate actively and constructively in the mediation process.

15.5 If the parties are unable to reach an agreement in mediation proceedings in accordance with Clause 15.4, the exclusive place of jurisdiction for any disputes arising from or on the basis of these GTC or the service contract shall be CH-5600 Lenzburg.

15.6 The contractual relationship between the parties shall be governed exclusively by Swiss substantive law, excluding the conflict of laws rules.

V 1.0 (March 06, 2024)