OptimaStage
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General Conditions
These General Conditions govern the legal relationship between OptimaStage by Severi Claudio (hereinafter, "OptimaStage") and its customers (hereinafter, “customers”) who make use of the services of OptimaStage.
1. Scope of applicability and conclusion of contract
1.1.
The substance of these General Conditions is the use of the services and products of OptimaStage as offered and available at the time of the customer’s initial use thereof.
1.2. Basic services
The customer chooses the basic services to be rendered by OptimaStage from the range of services available at the time of initial use and transmits its legally binding order to OptimaStage. The contract between OptimaStage and the customer is concluded upon OptimaStage’s transmission of the applicable contractual documentation to the e-mail address the customer has indicated for purposes of receiving contract-relevant notifications. These General Conditions, as well as the contractual documentation and the Guidelines for Use supplied to the customer, constitute the basis of said contract.
2. Services and rights of OptimaStage
2.1.
For the scope of services chosen by the customer, OptimaStage makes storage space and server capacity available to the customer on Internet-linked infrastructure.
2.2.
The calculation of the specific services is based on the customer’s average use of OptimaStage’s resources. The resources provided (in particular but not limited to disk space) may only be used for the regular operation of customer's website. As a general rule, resource-intensive downloads (high-resolution images and documents, large archives of images or documents, etc.) are not permissible. OptimaStage reserves the right at any time and at its own discretion to establish threshold values for resource utilisation. OptimaStage also reserves the right to block the customer’s user account if its conduct in any way impairs the operational characteristics of the given service and the customer has failed to cease such conduct immediately following receipt of a one-time request from OptimaStage to do so. If available, OptimaStage may offer the customer an upgrade, which allows the customer a higher use of resources against the payment of the respective fees.
2.3.
Within the scope of its operating resources, OptimaStage strives to render its services round the clock, fault-free and without interruptions. However, maintenance work, troubleshooting, expansion of services, etc., can require temporary operational interruptions. The customer shall be notified of such operational interruptions in a timely manner if such is possible under the given circumstances.
3. Rights and obligations of the customer
3.1.
The customer is entitled to make use of the rendered services in a rule-compliant manner and commits to adhering to these General Conditions, the Guidelines for Use, as well as any directives issued by OptimaStage.
3.2.
In placing orders, registering subdomain names and making use of the rendered services, the customer shall be obligated vis-à-vis OptimaStage to provide truthful information.
3.3.
The customer commits to selecting passwords in an appropriate manner, caring for their safe custody and preventing their unauthorised use by third parties. The customer on its own shall bear full responsibility for the use of passwords. If the customer becomes aware of an abusive use of his account, he is obliged to notify OptimaStage immediately by phone.
3.4.
The customer is prohibited from making available (at a cost or free of charge) services he bought to a third party. If OptimaStage becomes aware that services are not used by the customer who bought them but by a third party, OptimaStage reserves the right to suspend the rendering of these services until proper use by the customer is fully restored. Even during such suspension, the customer shall remain obliged to fully pay for the services.
3.5.
Furthermore, the customer commits to complying with any OptimaStage directives regarding the maintenance or updating of software and database.
3.6.
The customer shall bear responsibility for the informational content (language, images, sounds, computer programs, databases, audio/video files, etc.) which it and its communicating third parties transmit, process, disseminate or make available for access by means of OptimaStage. The customer shall also bear responsibility for any references (in particular, links) included in such content. Any disputes between co-owners of an account or between the customer and a third party in connection with the use of an account or the information made available therewith are the sole responsibility of the co-owners or the customers. If OptimaStage is contacted by co-owners of an account or third parties in connection with an account or information made available therewith, OptimaStage shall forward such notification to the other co-owners or the customer respectively for direct settlement. OptimaStage is entitled to invoice the co-owners of an account or customers any costs incurred with such notification.
3.7.
The customer shall be obligated to inform OptimaStage immediately of any malfunctions or interruptions of the services used, as well as to support OptimaStage if possible in remedying any such problems. The customer shall bear the costs for OptimaStage’s limiting and remedying such problems if the customer itself has requested the related investigation and the cause of the problem is attributable to the conduct of the customer or the equipment it uses.
3.8.
OptimaStage shall not provide support services for customer's end customers. The customer may buy such support services from OptimaStage pursuant to a separate written agreement and against payment of a respective fee. Furthermore, OptimaStage shall bear no costs for third-party services or third-party support.
3.9.
In the event of a concrete indication or justified suspicion of unlawful conduct or a breach of the Guidelines for Use, OptimaStage reserves the right to take the measures it deems appropriate and to impose sanctions. If OptimaStage’s call for the customer to restore lawful conditions or comport itself in a lawful manner is not heeded within a time limit determined by OptimaStage, OptimaStage at its own discretion may suspend the service without further warning and block access to the customer’s website and/or terminate the contract without notice. Furthermore, OptimaStage reserves the right to reject and delete virus-infected e-mails, as well as to block evidently unlawful content. In the event of a violation of the Guidelines for Use on the part of the customer or third parties supervised by the customer, OptimaStage shall be entitled to notify the criminal prosecution authorities of the name and actions of the customer.
4. Data security
4.1.
As a supplementary measure in this regard, OptimaStage backs up on a daily basis the databases as well as the files and e-mails that the customer has saved on its allocated storage space, with the exception of e-mails that the spam filter has stored in a special memory for spam e-mail. This memory will not be backed-up, but instead deleted on a regular basis. OptimaStage assumes no responsibility whatsoever for the backing-up of data stored on its server and raws the customer’s attention to the fact that the backing-up of databases, files and e-mails takes place at various times, thus in certain instances a potential loss of data cannot be ruled out. In exceptional cases, it is also possible for technical reasons, e.g. due to maintenance work or system malfunctions, that OptimaStage cannot back-up data on specific days.
4.2.
Upon request and against payment of a fee, OptimaStage can provide the customer with access to the databases, files and e-mails, if available, that OptimaStage has backed up during the seven-day period since the processing date of the customer’s request. OptimaStage shall inform the customer of the amount of the payable fee following receipt of the request.
5. Invoicing and payment conditions
5.1.
The payment obligation commences upon conclusion of the contract.
5.2.
As a general rule, OptimaStage invoices the customer in advance for the chosen term of the contract. The invoice is to be paid at latest by the due date indicated on the billing form.
5.3.
If the customer is in breach of the aforementioned payment conditions, OptimaStage shall be entitled to charge 8% interest in arrears and, as of the second payment reminder, charge an additional sum to cover the costs of debt collection. In addition, OptimaStage may terminate its services to the customer as per paragraph 9.3 herein. Moreover, OptimaStage shall have the right to suspend its services to the customer if the first payment reminder is fruitless.
5.4.
The offsetting of reciprocal financial obligations of the contractual parties is excluded.
6. Warranty and liability
6.1.
OptimaStage vouches for the careful and professional rendering of its services. However, OptimaStage cannot guarantee that the customer’s website is available on the Internet without interruption, or that the customer’s data enquiries are transmitted from the Internet correctly and without time delay.
6.2.
Customer failure reports concerning the basic service must be submitted via registered post and include a notice of defects that provides a comprehensible description of the purported defects. Furthermore, the customer shall afford OptimaStage a reasonable grace period of at least 30 days to remedy the specific defects indicated in the notice of defects. Should the grace period lapse without a successful remedy having been achieved, the customer shall be entitled to terminate the contract immediately. OptimaStage shall reimburse the customer on a pro rata temporis basis any prepaid fee for the period of time in which the customer does not make use of the service as a result of such termination. Any and all further compensation is excluded, subject to the terms of paragraph 6.4 of these General Conditions.
6.3.
OptimaStage shall assume no liability for abusive use of its communications infrastructure by third parties or third-party encroachments (e.g. computer viruses, unauthorised changes by hackers, e-mail transmissions, etc.). OptimaStage shall also assume no liability for damages that arise for the customer or its customers due to loss of data or the impossibility to access the Internet or send and receive information via the Internet.
6.4.
Any and all liability on the part of OptimaStage and/or its commissioned third parties for actions in breach of the contract is excluded in cases of minor carelessness, direct or indirect damages, extra-contractual damages, consequential damages, foregone profits, loss of earnings or productive capability or loss of data. Reserved in this regard are compulsory legal liability provisions.
6.5.
The customer shall be held liable vis-à-vis OptimaStage for any and all damages (including indirect damages, consequential damages, foregone profits) attributable to the customer’s breach of its contractual and legal obligations. The customer commits to hold OptimaStage harmless from any and all third-party claims resulting from the former’s breach of its contractual obligations. The damages to be compensated in such instances also include the costs for the professional legal defence of OptimaStage.
7. Confidentiality and data protection
7.1.
OptimaStage and the customer mutually commit to safeguard the confidentiality of all non-public information and data they have come to know in the preparation and execution of this contract. This obligation shall also remain in force following the termination of this contract as long as a justified interest exists.
7.2.
In processing personal data, OptimaStage shall comply with the applicable legal requirements concerning data protection. OptimaStage will store only data that are necessary for providing its services and for invoicing purposes.
8. Intellectual property
8.1.
For the term of the contract, the customer shall have the non-transferable, non-exclusive right for the use and application of the services.
9. Duration of contract; termination
9.1.
The contract between OptimaStage and the customer shall enter into effect upon OptimaStage’s transmission of the applicable contractual documentation to the e-mail address the customer has indicated for purposes of receiving contract-relevant notifications, and remain in force for the term specified in the customer’s order. The contract may be terminated in writing by either party via registered post or via telefax with confirmation of transmission upon observance of a 30-day notification period for effect at the end of the agreed term of the contract (6, 12 or 24 months). In the absence of a timely termination, the contract shall be automatically prolonged for a period representing the originally agreed term of the contract.
9.2.
The customer may retract its contractual declaration within 30 days of the order’s receipt without incurring any costs (30-day money-back guarantee). The day of the order’s receipt is considered Day 1. The customer, if it wishes to withdraw from the contract, must submit its withdrawal declaration to OptimaStage in writing via letter or telefax. This withdrawal right shall not apply to certificate, software (web-o-mat, eShop), vISP-server, applications and support services, in that such services are arranged according to the customer’s specifications.
9.3.
OptimaStage shall be entitled to terminate the contract without notice if the customer breaches the contractual provisions or the services are being used for unlawful purposes. In such an event, the customer shall owe OptimaStage the fees payable for the period up to the normal termination date of the contract, as well as reimburse OptimaStage for all additional costs it may incur in connection with the termination without notice.
9.4.
OptimaStage may also terminate the contract with the customer if proceedings due to bankruptcy or insolvency have been instituted against the customer or, if by other means, it has become apparent that the customer can no longer meet its financial commitments and, prior to the end of the current term of the contract, the customer fails to prepay or provide appropriate collateral backing for the costs of the next contractual term.
9.5.
Upon expiry of the contract, OptimaStage shall be entitled to delete the customer’s data. The Client shall bear sole responsibility for backing-up its data a timely manner. In the case of an extraordinary termination of the contract for immediate effect, the relevant data will be deleted after the expiry of 10 calendar days subsequent to the date of the termination notice.
9.6.
Once the termination of the registration service takes effect, the relevant subdomain name will be freed for new registration
10. Amendments to contractual conditions
10.1.
OptimaStage makes every effort to maintain its infrastructure at the latest state of the art in terms of the security requirements and technical standards customary in the industry. The customer acknowledges that new technological developments, security requirements and/or changes in the services offered by subcontractors to OptimaStage or to the OpenSource software utilised by OptimaStage can result in either a broadening or limitation of the services OptimaStage offers as well as have an influence on the pricing of such services.
10.2.
OptimaStage reserves the express right to amend at any time the contractual conditions hereunder. During the term of the contract, OptimaStage shall notify the customer in writing via e-mail of any price increases or service limitations that have an impact on the customer. Should the customer fail to accept the changes, it has the option within 30 days of the receipt of such notification to notify OptimaStage of that fact in writing via registered post or via fax with confirmation of transmission and to terminate the contract for effect at the end of the given month. In the absence of any such written notification within the specified period, the changes shall be deemed to have been approved by the customer.
11. Further provisions
11.1.
Notifications of relevance to the contract, in particular the announcement of price changes or amendments to these General Conditions, shall be transmitted via e-mail to the user e-mail address specified by the customer in the control panel. The customer shall bear full responsibility for ensuring that the customer’s data as compiled at the time of ordering (i.e. invoicing, administration and technical contacts) are maintained in a current, complete and correct manner in the control panel over the entire term of the contract. OptimaStage shall not be obligated to observe any other data than those indicated at the time of ordering or to make any investigations on its own in effort to correct said data.
11.2 Duty to provide truthful information
In ordering and making use of the rendered services, the customer shall be obligated vis-à-vis OptimaStage to provide truthful information. The customer shall also bear responsibility for maintaining the customer-related data provided at the time of its original order (invoicing, administrative and technical contact coordinates) in an up-to-date, complete and correct manner for the entire duration of the registration. OptimaStage shall not be obligated to observe any data other than those details provided at the time of the order or to initiate investigations regarding the correction of such data.
Should the customer’s data (invoicing, administrative and technical contact coordinates) prove to be incomplete, incorrect or not up to date, and if the customer fails to comply with the demand of OptimaStage to correct such inconsistencies within 10 calendar days, or if the identity of the customer cannot be determined, or if OptimaStage’s notifications to the invoicing contact party are not deliverable, OptimaStage shall be entitled to revoke the relevant subdomain names of the customer and terminate the contract.
11.3.
The rights and obligations that accrue from the contract may only be transferred to a third party upon the prior written approval of the other contractual party. Exempted from this provision is the transfer of the contract by OptimaStage to a legal successor or affiliated company.
11.4.
Material Swiss law shall apply in the interpretation of the contract.
11.5.
The parties hereto agree that the place of jurisdiction for any disputes that may arise in connection with the contract shall be the business domicile of OptimaStage, whereas OptimaStage reserves the right to prosecute the customer at the customer’s domicile.
GUIDELINES FOR USE
These Guidelines for Use constitute an integral part of the Service Contract for web hosting (hereinafter referred to as “services”) concluded between the customer and OptimaStage AG (OptimaStage).
1. Use of the services
1.1.
The services may only be used in accordance with the laws valid in Switzerland and abroad. The following actions, in particular, are illegal and thus constitute a breach of these Guidelines for Use:
- The committing of a criminal offence (fraud, computer crime, money laundering, breaching of business secrets, document forging, violence or threats against public authorities and civil servants, illegal gambling, etc.), participation in a criminal offence (involvement, incitement, aiding and abetting) or making the service available such that a criminal offence can be carried out by a third party who is under the customer’s supervision, such as children, employees, and subcontractors, etc. (person under supervision).
- dissemination or the making accessible of contents that are unlawful under criminal or private law (depictions of violence, so-called soft and hard pornography, incitement to disturb the public peace, violation of the freedom of religion and freedom of worship, racial discrimination, defamation, slander, infringement of privacy, etc.) either by the customer themselves or by those under their supervision. Soft pornography may only be made accessible if the customer installs effective barriers to ensure that only persons aged 16 and above are permitted to access the corresponding contents.
- The unauthorised acquisition, storage or dissemination of proprietary contents (contents subject to copyright or to trademark, data protection, design and patent law).
1.2.
The customer undertakes to take the appropriate precautions to avoid unlawful use of the services and to notify OptimaStage without delay of anything of relevance that they establish which could serve to avoid the misuse of its services.
2. Electronic mail
2.1.
The customer is responsible for the content of the messages that they send using a OptimaStage service.
2.2.
The dispatch of annoying e-mails, and particularly the dispatch of identical, unsolicited messages to a large number of recipients, is prohibited (spamming).
3. Security guidelines
3.1.
Violations of the system and network security constitute contractual violations for which the customer is liable under civil law. If the requisite conditions are fulfilled, the customer shall similarly be liable under criminal law. In such cases, OptimaStage reserves the right to report the matter to the competent law enforcement authority. The following acts, in particular, constitute contractual violations on the part of the customer which are also punishable under criminal law:
- The unauthorised accessing or unauthorised use of data, systems and network elements, the checking of system vulnerability or network competence without prior agreement (scanning) or the attempt to break through security precautions and authorisation measures without having obtained the prior written consent of the person concerned for this.
- The unauthorised monitoring of data traffic without the prior written consent of the competent authorities or the network owner (sniffing).
- The impairment of the systems operated by OptimaStage and its customers, in particular through mail bombs, mass mailings or other attempts at overloading the system (flooding).
- The manipulation of control information in TCP/IP packages (package headers), e.g. the TCP/IP addresses or an item of information in the control section (e.g. the address of recipients/senders), in an electronic mail.
3.2.
The passwords or other identification parameters notified to the customer are intended for the recipient’s personal use and must be treated confidentially. OptimaStage is entitled to rely on the fact that a person using an identification parameter is duly entitled to do so.
3.3.
The customer and persons under their supervision are obliged to terminate their use of the services by the procedure recommended by OptimaStage (e.g. to close the browser by clicking on “Logout”, “Logoff” or “Exit”). OptimaStage reserves the right to conduct random checks to establish whether these guidelines are being observed.
4. Taking action against violations
4.1.
OptimaStage can discontinue the provision of services and access to the network if any action or omission on the part of the customer is jeopardising or would seem to be jeopardising the normal functioning or the security of the network via which OptimaStage provides its services, or if the customer violates the contract (including these guidelines) with OptimaStage. The outlay incurred in investigating such violations will be charged to the customer. The customer duly notes that, in the event of a violation of these guidelines, OptimaStage may be obliged to reveal the customer’s identity to third parties (such as the law enforcement authority).
5. Notifications and amendments
5.1.
The customer undertakes to notify OptimaStage without delay of any shortcomings, disturbances or interruptions of services, systems or software that they become aware of, including all cases of illegal or contractually inadmissible use of the services by third parties (e.g. hackers).
5.2.
Notifications in conjunction with the guidelines set out here should be submitted to: info@OptimaStage.ch
5.3.
OptimaStage behält sich vor, diese Richtlinien gemäss den in den jeweils anwendbaren AGB enthaltenen Grundsätzen zu ändern.
GENERAL CONDITIONS FOR SUBDOMAIN NAMES
1. Services and rights of OptimaStage
1.1. Requests for registration
OptimaStage handles requests for registration in accordance with the principle of equal treatment. The registration of a subdomain name for which several valid requests have been lodged takes place according to the chronological order (first come, first served) of the receipt of such orders.
1.2.
Vis-à-vis OptimaStage, the customer is deemed to be the owner of the subdomain name and shall bear sole responsibility for its use.
1.3.
Should OptimaStage determine that the customer has abused OptimaStage’s services or made unauthorised use of data or information, OptimaStage shall be entitled to suspend its services without prior notice until a legally compliant status has been restored.
1.4.
If the customer has yet to pay for the services it has received, OptimaStage shall be entitled to refuse the rendering of such services until the customer’s account is settled.
2. Rights and obligations of the customer
2.1.
The passwords or other identification parameters supplied to the customer by OptimaStage are intended for the personal use of the customer and are to be treated with confidentiality. The customer shall bear sole responsibility for the use of said passwords and identification parameters.
2.2.
The customer commits to verify immediately the correctness of OptimaStage’s notifications as well as its processing of requests. If the customer neglects to conduct such verification, it shall forfeit any liability or other claims against OptimaStage in connection with any errors or omissions in the given notifications.
3. Confidentiality and data protection
3.1.
OptimaStage draws the customer’s attention to the fact that, for legal reasons, the following data must be comunicated:
- the name of the customer (holder) of the subdomain name;
- complete address of the holder (including e-mail address);
- if the holder of the subdomain name is a legal person, a general partnership or a limited partnership, the names of the individuals authorised to represent the entity;
- complete address of the technical contact party (including e-mail address);
Valid as of 01.10.2011
This English version is a translation of the Italian version.
The original and valid version is in Italian.
1. Scope of applicability and conclusion of contract
1.1.
The substance of these General Conditions is the use of the services and products of OptimaStage as offered and available at the time of the customer’s initial use thereof.
1.2. Basic services
The customer chooses the basic services to be rendered by OptimaStage from the range of services available at the time of initial use and transmits its legally binding order to OptimaStage. The contract between OptimaStage and the customer is concluded upon OptimaStage’s transmission of the applicable contractual documentation to the e-mail address the customer has indicated for purposes of receiving contract-relevant notifications. These General Conditions, as well as the contractual documentation and the Guidelines for Use supplied to the customer, constitute the basis of said contract.
2. Services and rights of OptimaStage
2.1.
For the scope of services chosen by the customer, OptimaStage makes storage space and server capacity available to the customer on Internet-linked infrastructure.
2.2.
The calculation of the specific services is based on the customer’s average use of OptimaStage’s resources. The resources provided (in particular but not limited to disk space) may only be used for the regular operation of customer's website. As a general rule, resource-intensive downloads (high-resolution images and documents, large archives of images or documents, etc.) are not permissible. OptimaStage reserves the right at any time and at its own discretion to establish threshold values for resource utilisation. OptimaStage also reserves the right to block the customer’s user account if its conduct in any way impairs the operational characteristics of the given service and the customer has failed to cease such conduct immediately following receipt of a one-time request from OptimaStage to do so. If available, OptimaStage may offer the customer an upgrade, which allows the customer a higher use of resources against the payment of the respective fees.
2.3.
Within the scope of its operating resources, OptimaStage strives to render its services round the clock, fault-free and without interruptions. However, maintenance work, troubleshooting, expansion of services, etc., can require temporary operational interruptions. The customer shall be notified of such operational interruptions in a timely manner if such is possible under the given circumstances.
3. Rights and obligations of the customer
3.1.
The customer is entitled to make use of the rendered services in a rule-compliant manner and commits to adhering to these General Conditions, the Guidelines for Use, as well as any directives issued by OptimaStage.
3.2.
In placing orders, registering subdomain names and making use of the rendered services, the customer shall be obligated vis-à-vis OptimaStage to provide truthful information.
3.3.
The customer commits to selecting passwords in an appropriate manner, caring for their safe custody and preventing their unauthorised use by third parties. The customer on its own shall bear full responsibility for the use of passwords. If the customer becomes aware of an abusive use of his account, he is obliged to notify OptimaStage immediately by phone.
3.4.
The customer is prohibited from making available (at a cost or free of charge) services he bought to a third party. If OptimaStage becomes aware that services are not used by the customer who bought them but by a third party, OptimaStage reserves the right to suspend the rendering of these services until proper use by the customer is fully restored. Even during such suspension, the customer shall remain obliged to fully pay for the services.
3.5.
Furthermore, the customer commits to complying with any OptimaStage directives regarding the maintenance or updating of software and database.
3.6.
The customer shall bear responsibility for the informational content (language, images, sounds, computer programs, databases, audio/video files, etc.) which it and its communicating third parties transmit, process, disseminate or make available for access by means of OptimaStage. The customer shall also bear responsibility for any references (in particular, links) included in such content. Any disputes between co-owners of an account or between the customer and a third party in connection with the use of an account or the information made available therewith are the sole responsibility of the co-owners or the customers. If OptimaStage is contacted by co-owners of an account or third parties in connection with an account or information made available therewith, OptimaStage shall forward such notification to the other co-owners or the customer respectively for direct settlement. OptimaStage is entitled to invoice the co-owners of an account or customers any costs incurred with such notification.
3.7.
The customer shall be obligated to inform OptimaStage immediately of any malfunctions or interruptions of the services used, as well as to support OptimaStage if possible in remedying any such problems. The customer shall bear the costs for OptimaStage’s limiting and remedying such problems if the customer itself has requested the related investigation and the cause of the problem is attributable to the conduct of the customer or the equipment it uses.
3.8.
OptimaStage shall not provide support services for customer's end customers. The customer may buy such support services from OptimaStage pursuant to a separate written agreement and against payment of a respective fee. Furthermore, OptimaStage shall bear no costs for third-party services or third-party support.
3.9.
In the event of a concrete indication or justified suspicion of unlawful conduct or a breach of the Guidelines for Use, OptimaStage reserves the right to take the measures it deems appropriate and to impose sanctions. If OptimaStage’s call for the customer to restore lawful conditions or comport itself in a lawful manner is not heeded within a time limit determined by OptimaStage, OptimaStage at its own discretion may suspend the service without further warning and block access to the customer’s website and/or terminate the contract without notice. Furthermore, OptimaStage reserves the right to reject and delete virus-infected e-mails, as well as to block evidently unlawful content. In the event of a violation of the Guidelines for Use on the part of the customer or third parties supervised by the customer, OptimaStage shall be entitled to notify the criminal prosecution authorities of the name and actions of the customer.
4. Data security
4.1.
As a supplementary measure in this regard, OptimaStage backs up on a daily basis the databases as well as the files and e-mails that the customer has saved on its allocated storage space, with the exception of e-mails that the spam filter has stored in a special memory for spam e-mail. This memory will not be backed-up, but instead deleted on a regular basis. OptimaStage assumes no responsibility whatsoever for the backing-up of data stored on its server and raws the customer’s attention to the fact that the backing-up of databases, files and e-mails takes place at various times, thus in certain instances a potential loss of data cannot be ruled out. In exceptional cases, it is also possible for technical reasons, e.g. due to maintenance work or system malfunctions, that OptimaStage cannot back-up data on specific days.
4.2.
Upon request and against payment of a fee, OptimaStage can provide the customer with access to the databases, files and e-mails, if available, that OptimaStage has backed up during the seven-day period since the processing date of the customer’s request. OptimaStage shall inform the customer of the amount of the payable fee following receipt of the request.
5. Invoicing and payment conditions
5.1.
The payment obligation commences upon conclusion of the contract.
5.2.
As a general rule, OptimaStage invoices the customer in advance for the chosen term of the contract. The invoice is to be paid at latest by the due date indicated on the billing form.
5.3.
If the customer is in breach of the aforementioned payment conditions, OptimaStage shall be entitled to charge 8% interest in arrears and, as of the second payment reminder, charge an additional sum to cover the costs of debt collection. In addition, OptimaStage may terminate its services to the customer as per paragraph 9.3 herein. Moreover, OptimaStage shall have the right to suspend its services to the customer if the first payment reminder is fruitless.
5.4.
The offsetting of reciprocal financial obligations of the contractual parties is excluded.
6. Warranty and liability
6.1.
OptimaStage vouches for the careful and professional rendering of its services. However, OptimaStage cannot guarantee that the customer’s website is available on the Internet without interruption, or that the customer’s data enquiries are transmitted from the Internet correctly and without time delay.
6.2.
Customer failure reports concerning the basic service must be submitted via registered post and include a notice of defects that provides a comprehensible description of the purported defects. Furthermore, the customer shall afford OptimaStage a reasonable grace period of at least 30 days to remedy the specific defects indicated in the notice of defects. Should the grace period lapse without a successful remedy having been achieved, the customer shall be entitled to terminate the contract immediately. OptimaStage shall reimburse the customer on a pro rata temporis basis any prepaid fee for the period of time in which the customer does not make use of the service as a result of such termination. Any and all further compensation is excluded, subject to the terms of paragraph 6.4 of these General Conditions.
6.3.
OptimaStage shall assume no liability for abusive use of its communications infrastructure by third parties or third-party encroachments (e.g. computer viruses, unauthorised changes by hackers, e-mail transmissions, etc.). OptimaStage shall also assume no liability for damages that arise for the customer or its customers due to loss of data or the impossibility to access the Internet or send and receive information via the Internet.
6.4.
Any and all liability on the part of OptimaStage and/or its commissioned third parties for actions in breach of the contract is excluded in cases of minor carelessness, direct or indirect damages, extra-contractual damages, consequential damages, foregone profits, loss of earnings or productive capability or loss of data. Reserved in this regard are compulsory legal liability provisions.
6.5.
The customer shall be held liable vis-à-vis OptimaStage for any and all damages (including indirect damages, consequential damages, foregone profits) attributable to the customer’s breach of its contractual and legal obligations. The customer commits to hold OptimaStage harmless from any and all third-party claims resulting from the former’s breach of its contractual obligations. The damages to be compensated in such instances also include the costs for the professional legal defence of OptimaStage.
7. Confidentiality and data protection
7.1.
OptimaStage and the customer mutually commit to safeguard the confidentiality of all non-public information and data they have come to know in the preparation and execution of this contract. This obligation shall also remain in force following the termination of this contract as long as a justified interest exists.
7.2.
In processing personal data, OptimaStage shall comply with the applicable legal requirements concerning data protection. OptimaStage will store only data that are necessary for providing its services and for invoicing purposes.
8. Intellectual property
8.1.
For the term of the contract, the customer shall have the non-transferable, non-exclusive right for the use and application of the services.
9. Duration of contract; termination
9.1.
The contract between OptimaStage and the customer shall enter into effect upon OptimaStage’s transmission of the applicable contractual documentation to the e-mail address the customer has indicated for purposes of receiving contract-relevant notifications, and remain in force for the term specified in the customer’s order. The contract may be terminated in writing by either party via registered post or via telefax with confirmation of transmission upon observance of a 30-day notification period for effect at the end of the agreed term of the contract (6, 12 or 24 months). In the absence of a timely termination, the contract shall be automatically prolonged for a period representing the originally agreed term of the contract.
9.2.
The customer may retract its contractual declaration within 30 days of the order’s receipt without incurring any costs (30-day money-back guarantee). The day of the order’s receipt is considered Day 1. The customer, if it wishes to withdraw from the contract, must submit its withdrawal declaration to OptimaStage in writing via letter or telefax. This withdrawal right shall not apply to certificate, software (web-o-mat, eShop), vISP-server, applications and support services, in that such services are arranged according to the customer’s specifications.
9.3.
OptimaStage shall be entitled to terminate the contract without notice if the customer breaches the contractual provisions or the services are being used for unlawful purposes. In such an event, the customer shall owe OptimaStage the fees payable for the period up to the normal termination date of the contract, as well as reimburse OptimaStage for all additional costs it may incur in connection with the termination without notice.
9.4.
OptimaStage may also terminate the contract with the customer if proceedings due to bankruptcy or insolvency have been instituted against the customer or, if by other means, it has become apparent that the customer can no longer meet its financial commitments and, prior to the end of the current term of the contract, the customer fails to prepay or provide appropriate collateral backing for the costs of the next contractual term.
9.5.
Upon expiry of the contract, OptimaStage shall be entitled to delete the customer’s data. The Client shall bear sole responsibility for backing-up its data a timely manner. In the case of an extraordinary termination of the contract for immediate effect, the relevant data will be deleted after the expiry of 10 calendar days subsequent to the date of the termination notice.
9.6.
Once the termination of the registration service takes effect, the relevant subdomain name will be freed for new registration
10. Amendments to contractual conditions
10.1.
OptimaStage makes every effort to maintain its infrastructure at the latest state of the art in terms of the security requirements and technical standards customary in the industry. The customer acknowledges that new technological developments, security requirements and/or changes in the services offered by subcontractors to OptimaStage or to the OpenSource software utilised by OptimaStage can result in either a broadening or limitation of the services OptimaStage offers as well as have an influence on the pricing of such services.
10.2.
OptimaStage reserves the express right to amend at any time the contractual conditions hereunder. During the term of the contract, OptimaStage shall notify the customer in writing via e-mail of any price increases or service limitations that have an impact on the customer. Should the customer fail to accept the changes, it has the option within 30 days of the receipt of such notification to notify OptimaStage of that fact in writing via registered post or via fax with confirmation of transmission and to terminate the contract for effect at the end of the given month. In the absence of any such written notification within the specified period, the changes shall be deemed to have been approved by the customer.
11. Further provisions
11.1.
Notifications of relevance to the contract, in particular the announcement of price changes or amendments to these General Conditions, shall be transmitted via e-mail to the user e-mail address specified by the customer in the control panel. The customer shall bear full responsibility for ensuring that the customer’s data as compiled at the time of ordering (i.e. invoicing, administration and technical contacts) are maintained in a current, complete and correct manner in the control panel over the entire term of the contract. OptimaStage shall not be obligated to observe any other data than those indicated at the time of ordering or to make any investigations on its own in effort to correct said data.
11.2 Duty to provide truthful information
In ordering and making use of the rendered services, the customer shall be obligated vis-à-vis OptimaStage to provide truthful information. The customer shall also bear responsibility for maintaining the customer-related data provided at the time of its original order (invoicing, administrative and technical contact coordinates) in an up-to-date, complete and correct manner for the entire duration of the registration. OptimaStage shall not be obligated to observe any data other than those details provided at the time of the order or to initiate investigations regarding the correction of such data.
Should the customer’s data (invoicing, administrative and technical contact coordinates) prove to be incomplete, incorrect or not up to date, and if the customer fails to comply with the demand of OptimaStage to correct such inconsistencies within 10 calendar days, or if the identity of the customer cannot be determined, or if OptimaStage’s notifications to the invoicing contact party are not deliverable, OptimaStage shall be entitled to revoke the relevant subdomain names of the customer and terminate the contract.
11.3.
The rights and obligations that accrue from the contract may only be transferred to a third party upon the prior written approval of the other contractual party. Exempted from this provision is the transfer of the contract by OptimaStage to a legal successor or affiliated company.
11.4.
Material Swiss law shall apply in the interpretation of the contract.
11.5.
The parties hereto agree that the place of jurisdiction for any disputes that may arise in connection with the contract shall be the business domicile of OptimaStage, whereas OptimaStage reserves the right to prosecute the customer at the customer’s domicile.
GUIDELINES FOR USE
These Guidelines for Use constitute an integral part of the Service Contract for web hosting (hereinafter referred to as “services”) concluded between the customer and OptimaStage AG (OptimaStage).
1. Use of the services
1.1.
The services may only be used in accordance with the laws valid in Switzerland and abroad. The following actions, in particular, are illegal and thus constitute a breach of these Guidelines for Use:
- The committing of a criminal offence (fraud, computer crime, money laundering, breaching of business secrets, document forging, violence or threats against public authorities and civil servants, illegal gambling, etc.), participation in a criminal offence (involvement, incitement, aiding and abetting) or making the service available such that a criminal offence can be carried out by a third party who is under the customer’s supervision, such as children, employees, and subcontractors, etc. (person under supervision).
- dissemination or the making accessible of contents that are unlawful under criminal or private law (depictions of violence, so-called soft and hard pornography, incitement to disturb the public peace, violation of the freedom of religion and freedom of worship, racial discrimination, defamation, slander, infringement of privacy, etc.) either by the customer themselves or by those under their supervision. Soft pornography may only be made accessible if the customer installs effective barriers to ensure that only persons aged 16 and above are permitted to access the corresponding contents.
- The unauthorised acquisition, storage or dissemination of proprietary contents (contents subject to copyright or to trademark, data protection, design and patent law).
1.2.
The customer undertakes to take the appropriate precautions to avoid unlawful use of the services and to notify OptimaStage without delay of anything of relevance that they establish which could serve to avoid the misuse of its services.
2. Electronic mail
2.1.
The customer is responsible for the content of the messages that they send using a OptimaStage service.
2.2.
The dispatch of annoying e-mails, and particularly the dispatch of identical, unsolicited messages to a large number of recipients, is prohibited (spamming).
3. Security guidelines
3.1.
Violations of the system and network security constitute contractual violations for which the customer is liable under civil law. If the requisite conditions are fulfilled, the customer shall similarly be liable under criminal law. In such cases, OptimaStage reserves the right to report the matter to the competent law enforcement authority. The following acts, in particular, constitute contractual violations on the part of the customer which are also punishable under criminal law:
- The unauthorised accessing or unauthorised use of data, systems and network elements, the checking of system vulnerability or network competence without prior agreement (scanning) or the attempt to break through security precautions and authorisation measures without having obtained the prior written consent of the person concerned for this.
- The unauthorised monitoring of data traffic without the prior written consent of the competent authorities or the network owner (sniffing).
- The impairment of the systems operated by OptimaStage and its customers, in particular through mail bombs, mass mailings or other attempts at overloading the system (flooding).
- The manipulation of control information in TCP/IP packages (package headers), e.g. the TCP/IP addresses or an item of information in the control section (e.g. the address of recipients/senders), in an electronic mail.
3.2.
The passwords or other identification parameters notified to the customer are intended for the recipient’s personal use and must be treated confidentially. OptimaStage is entitled to rely on the fact that a person using an identification parameter is duly entitled to do so.
3.3.
The customer and persons under their supervision are obliged to terminate their use of the services by the procedure recommended by OptimaStage (e.g. to close the browser by clicking on “Logout”, “Logoff” or “Exit”). OptimaStage reserves the right to conduct random checks to establish whether these guidelines are being observed.
4. Taking action against violations
4.1.
OptimaStage can discontinue the provision of services and access to the network if any action or omission on the part of the customer is jeopardising or would seem to be jeopardising the normal functioning or the security of the network via which OptimaStage provides its services, or if the customer violates the contract (including these guidelines) with OptimaStage. The outlay incurred in investigating such violations will be charged to the customer. The customer duly notes that, in the event of a violation of these guidelines, OptimaStage may be obliged to reveal the customer’s identity to third parties (such as the law enforcement authority).
5. Notifications and amendments
5.1.
The customer undertakes to notify OptimaStage without delay of any shortcomings, disturbances or interruptions of services, systems or software that they become aware of, including all cases of illegal or contractually inadmissible use of the services by third parties (e.g. hackers).
5.2.
Notifications in conjunction with the guidelines set out here should be submitted to: info@OptimaStage.ch
5.3.
OptimaStage behält sich vor, diese Richtlinien gemäss den in den jeweils anwendbaren AGB enthaltenen Grundsätzen zu ändern.
GENERAL CONDITIONS FOR SUBDOMAIN NAMES
1. Services and rights of OptimaStage
1.1. Requests for registration
OptimaStage handles requests for registration in accordance with the principle of equal treatment. The registration of a subdomain name for which several valid requests have been lodged takes place according to the chronological order (first come, first served) of the receipt of such orders.
1.2.
Vis-à-vis OptimaStage, the customer is deemed to be the owner of the subdomain name and shall bear sole responsibility for its use.
1.3.
Should OptimaStage determine that the customer has abused OptimaStage’s services or made unauthorised use of data or information, OptimaStage shall be entitled to suspend its services without prior notice until a legally compliant status has been restored.
1.4.
If the customer has yet to pay for the services it has received, OptimaStage shall be entitled to refuse the rendering of such services until the customer’s account is settled.
2. Rights and obligations of the customer
2.1.
The passwords or other identification parameters supplied to the customer by OptimaStage are intended for the personal use of the customer and are to be treated with confidentiality. The customer shall bear sole responsibility for the use of said passwords and identification parameters.
2.2.
The customer commits to verify immediately the correctness of OptimaStage’s notifications as well as its processing of requests. If the customer neglects to conduct such verification, it shall forfeit any liability or other claims against OptimaStage in connection with any errors or omissions in the given notifications.
3. Confidentiality and data protection
3.1.
OptimaStage draws the customer’s attention to the fact that, for legal reasons, the following data must be comunicated:
- the name of the customer (holder) of the subdomain name;
- complete address of the holder (including e-mail address);
- if the holder of the subdomain name is a legal person, a general partnership or a limited partnership, the names of the individuals authorised to represent the entity;
- complete address of the technical contact party (including e-mail address);
Valid as of 01.10.2011
This English version is a translation of the Italian version.
The original and valid version is in Italian.
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