General Terms and Conditions (GTC)
1 Scope and conclusion of contract
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") govern the conclusion, content and execution of contracts for the use of the Services of Marbell (hereinafter referred to as "Services") as well as the mutual rights and obligations of Marbell AG, Luzernerstrasse 1, 6343 Rotkreuz (hereinafter referred to as "Marbell") on the one hand and the customer of Marbell (hereinafter referred to as "Customer") on the other hand (together referred to as "the Parties").
1.2 A contractual relationship regarding the use of Services and the agreement to these GTCs is established upon the use of these Services. In particular, the activation of a service made available to the Customer in the Marbell Customer Portal (hereinafter referred to as "Customer Portal") is deemed to be the use of a Service.
1.3 If a customer order is placed outside of the Customer Portal or by filling out and sending an order form via the Customer Portal, a contractual relationship and the agreement to these GTCs shall come into effect upon confirmation of the offer, the use of Services or payment of the invoice, whereby the first action in terms of time shall be decisive.
1.4 Any change of contract requires the written consent of both Parties. However, Marbell may amend these GTCs and any contractual clauses by giving 30 days' written notice before the new provision comes into force, in particular in the event of a change in applicable legislation. The changes to the contract are considered accepted if the Customer does not object in writing within 15 days after receipt of the notification. If a change requires the replacement or extensive adaptation of certain equipment, Marbell will inform the Customer in advance.
1.5 Special agreements (especially information in the Customer Portal and the corresponding order form) between the Parties take precedence over these GTC. In addition, the Swiss law of obligations shall apply.
2.1 The offer shall be free of charge, unless otherwise expressly agreed.
2.2 Unless otherwise specified in the offer, Marbell shall remain bound by the offer for 30 days from the date of the offer.
2.3 Contracts with regard to Services, their ordering, acceptance and call-off as well as changes and additions are made in writing. Orders placed via the Marbell Customer Portal are equivalent to the written form as well as correspondence via email.
2.4 The Parties can withdraw from the contract negotiations without financial consequences until the contract document has been signed or the offer (order) has been accepted in writing.
3 Scope and provision of Services
3.1 The Services include services in the area of Infrastructure as a Service, in particular data storage, archiving, configuration and operation of servers and related network Services.
3.2 Marbell provides its Services with reference to the terms and conditions of these GTC and all applicable service descriptions (SLA).
3.3 The Customer can obtain Services from Marbell by requesting Services via the Marbell Customer Portal or a service order delivered by Marbell and accepted by Marbell according to the terms and conditions of these GTC.
3.4 The Internet is a worldwide system of independent, interconnected networks and servers. Marbell only has influence on those Services which are located in your networks and on your servers and can only guarantee their error-free functioning.
4 Obligations of Marbell
4.1 Marbell warrants that its Services have the agreed characteristics and that the work assigned to it will be performed carefully and professionally. Unless otherwise agreed, Marbell is responsible for the installation of the necessary equipment, for the correct functioning of the network and the Services up to the service transfer point.
4.2 In order to fulfill its contractual obligations, Marbell may call in third parties and subcontractors, in which case Marbell shall remain responsible for the fulfillment of the contract. If the Customer instructs Marbell to work with a specific subcontractor, the Customer alone shall be responsible for any defective performance of this subcontractor.
4.3 Marbell shall ensure the permanent availability of its Services. Marbell reserves the right to adjust the Marbell Customer Portal and its Services at any time and to carry out the maintenance and repair work which is deemed necessary. Marbell will inform the Customer in a suitable manner and in good time before any interruption of the Services due to adjustment, repair or maintenance work. Unforeseeable interruptions of the Services are not affected by this obligation to inform. Marbell is not liable for interruptions of the Services during adjustments to the Customer Portal and its Services.
4.4 If Marbell provides free Services, these can be discontinued at any time and without prior notice. The discontinuation of these Services does not result in any claim for reduction, reimbursement or damages.
5 Duties of the Customer
5.1 The Customer acknowledges and agrees that he alone is responsible for the correctness of all service requests and other information provided to Marbell via the Customer Portal or via the order form.
5.2 When ordering, creating a customer account for access to the Customer Portal and when using the Services, the Customer is obliged to provide truthful and comprehensible information. In particular, the Customer is responsible for ensuring that the customer data stored in the Customer Portal is current, complete and correct throughout the entire term of the contract. Marbell is not obligated to observe customer data other than the customer data stored in the Customer Portal or to carry out its own investigations with regard to the correction of this data. However, Marbell is entitled to correct or delete obviously incorrect entries in the Customer Portal. Furthermore, Marbell is entitled to suspend the Services at any time if there is any uncertainty about the correctness of the Customer's data. If Marbell determines that the Customer does not provide truthful or comprehensible information (including addresses and contact details), Marbell is entitled to suspend the service and terminate the contract without notice without any detrimental consequences.
5.3 Especially for services in the network area, the service transfer point may be located at the Customer's location (Customer PoP). The Customer agrees to support Marbell in the installation of the material necessary for the provision of the Services and to provide the necessary infrastructure. In particular, the Customer is responsible for obtaining all necessary authorizations from Marbell on advance notice in order to allow Marbell access to the premises required for the installation and operation of the Services. The Customer shall inform the persons authorized by Marbell about the location of the lines and facilities (examples: gas, electricity, water) and about other risk factors during connection work in the premises.
5.4 The Customer shall ensure that suitable space and sufficient electricity are available at all locations where Marbell must carry out installations in order to provide the Services. It is the Customer's responsibility to ensure that the cable ducts and guides inside the premises made available to Marbell for the provision of the Services are in perfect condition. The Customer shall bear the maintenance and repair costs of the aforementioned equipment and shall be responsible for the repair of the connecting cables in case they are damaged. Marbell reserves the right to give the Customer instructions in this regard. If the Customer does not carry out the necessary preparatory work, Marbell is not liable for the resulting impairment of the quality of the Services.
5.5 Inside the premises, the Customer is responsible for the use of the provided Services and the line as well as the connected devices. The installations and devices connected to the Marbell network must comply with the applicable legal and technical regulations and be sufficiently dimensioned for the Customer's needs. Upon Marbell's request, the Customer must take all measures necessary to remedy any malfunctions of the network or services which are due to connection conditions or devices which do not comply with the aforementioned regulations.
5.6 The Customer undertakes to treat the technical equipment owned by Marbell or its suppliers with due care and to follow Marbell's instructions. The place where the technical equipment is installed must be adequately protected, in particular against fire, theft and vandalism. The Customer shall immediately inform Marbell of any damage to its property and support Marbell as far as possible in finding the cause. If it turns out that such damage was not caused by Marbell, Marbell reserves the right to charge the costs incurred.
5.7 The Customer shall inform Marbell at least three months before an upcoming relocation of a customer location. The costs of the relocation shall be borne by the Customer.
5.8 The Customer assumes sole responsibility for the content of the messages (voice and data) which are transmitted via Marbell's network.
5.9 The Customer shall take appropriate measures against improper access to and improper use of his systems. In particular, the Customer is required to choose passwords appropriately, store them carefully and protect them from access by third parties. Furthermore, the Customer must prevent access to his systems via modem or dial-up and
6 Invoices, credit limits, payments
6.1 The Customer must establish and maintain an Online payment method (the "Payment Method") on the Marbell Customer Portal before Marbell can provide Services to the Customer.
6.2 Depending on the Services used by the Customer, certain fees are payable. One-off and recurring fees are listed in the corresponding price list and are calculated on the basis of the data determined by Marbell's billing system. Only this list constitutes proof that connections were established via the Customer's connection. Any objection regarding the invoices must be received by Marbell by registered mail within a maximum of 15 days after the invoice date, stating the scope, nature and reasons for the objection. An objection does not release the Customer from the obligation to pay the amounts in question within the period provided. If no objection is raised within the specified period, or if an objection is not sufficiently justified, the invoice shall be deemed accepted by the Customer. The invoice shall then be deemed to be an acknowledgement of debt within the meaning of Article 82 of the Code of Civil Procedure.
6.3 Marbell may change the rates or monthly fees at any time. If a tariff change leads to an increase in the total invoice amount, the new tariff shall be deemed to have been agreed upon after expiry of the notice period. In the event of an increase in the tariff or an increase in the total invoice amount, the Customer has the right to terminate the contract for the service by registered letter at the end of the month, regardless of the agreed minimum term, taking into account the notice period. For the determination of a possible increase, the following method of calculation shall apply: If [amount of the last invoice with new tariffs/monthly fees] minus [last invoice with old tariffs/monthly fees] is greater than CHF 0, the termination is possible at the end of the month.
6.4 The Customer receives a monthly invoice from Marbell in which all Services purchased during the billing period are listed individually. The invoice amount is due upon receipt of the electronic invoice. Marbell reserves the right to set an individual credit limit for each Customer or to demand an advance payment or a deposit.
6.5 In the event that Marbell is not able to invoice an order via the deposited payment method, Marbell will notify the Customer. The Customer will immediately update the payment method or agree on an alternative payment method.
6.6 The Customer undertakes to pay the invoice amounts within 10 days after the invoice date. In the event of non-compliance with the payment deadline, the Customer is automatically in default. Any amount outstanding on the due date shall bear interest at 5% per annum. The Customer is obliged to pay the costs arising from the delay in payment.
6.7 If the delay in payment persists for more than 15 days after the due date, Marbell is entitled to suspend the provision of Services without prior notice. In such a case, the recurring payment is still owed. If the delay in payment lasts longer than 60 days, Marbell can terminate the contract with immediate effect. In doing so, Marbell is in no way responsible for the direct or indirect consequences of the suspension of the Services or the termination of the contract.
7 Intellectual property and ownership of hardware
7.1 For the duration of the contract, the Customers are granted the non-transferable, non-exclusive right to use and exploit the Services. Marbell retains all rights to existing intellectual property or intellectual property arising during the performance of the contract with regard to the Services.
7.2 All technical equipment including connections remain the property of Marbell or its suppliers unless otherwise stipulated in the contract.
7.3 Upon termination of the contractual relationship, the Customer is obliged to return the property of Marbell or its suppliers or to ensure that Marbell can retrieve or dismantle its property or that of its suppliers without delay. Marbell is not liable for the costs of restoring the premises which may arise in connection with the installation or removal of the equipment under normal circumstances.
7.4 In the event of non-compliance with this obligation, the Customer shall be liable for all damages resulting therefrom. In this case, the Customer shall owe the new price of the installations plus installation costs.
8 Liability of Marbell
8.1 Marbell shall be liable for direct damages incurred by the Customer in connection with the contractually agreed upon performance of the service if the Customer can prove Marbell's gross negligence or intent. Any further liability, in particular for indirect or consequential damages such as loss of profit, additional expenses, additional personnel costs, unrealized savings, third party claims or data loss as well as for auxiliary personnel and for damages resulting from delayed performance, etc., is expressly excluded to the extent permitted by law.
8.2 Marbell is not liable for damages which are due to software errors or computer viruses.
8.3 Marbell is not liable for damages which are due to improper or unauthorized use of the Services, to a violation of this contract, in particular to a violation of the obligation to cooperate (for example, according to Section 4 of these GTC), or to careless handling of a user ID or password by the Customer.
8.4 Liability shall be limited to the damage actually incurred, but not exceeding the amount of the total annual remuneration of the contract. These limitations of liability do not apply in the event of intent or gross negligence.
8.5 If a contractual penalty has been agreed upon in the event of Marbell's failure to fulfill a contractual obligation (for example in a service level agreement), all claims for damages of the Customer due to the non-fulfillment are settled upon payment.
9 Customer data
9.1 Marbell undertakes to treat customer data in accordance with the applicable Swiss legislation on data protection and telecommunication services. Marbell is entitled to transmit information on new Customers to credit-checking institutions for the purpose of clarifying creditworthiness. Marbell has a data use regulation in order to fulfill the organization and responsibilities prescribed by the DSVGO.
10 Duration and termination of the contract, cessation of contractual Services
10.1 These Terms and Conditions shall enter into force on the date of signature of a contract by both Parties or on the events described in paragraphs 1.2 and 1.3, whichever occurs first. They are valid for the entire time Marbell provides Services to the Customer unless terminated earlier in accordance with the applicable provisions of this agreement.
10.2 Notwithstanding the above, Marbell reserves the right to increase the prices for all Services provided within the scope of these GTC with a notice period of at least thirty (30) days, subject to the term or a shorter notice period.
10.3 There are minimum contract periods for individual Services or the Customer can commit himself for a certain contract period for individual Services. Such a term is noted in the corresponding service order and is automatically extended unless the Customer terminates it sixty (60) days prior to the specified expiry of the term (or an extension period). The term of a service begins on the date on which the Customer can make use of the service or on the date stated in the order. Customer may terminate a Service prior to the applicable expiration date by giving at least ten (10) days' notice. In this case, the Customer shall pay 75% of the unused portion of the remaining balance of the Contractually agreed Service.
10.4 Marbell may suspend its Services or terminate the contract with immediate effect if there are important reasons, namely if
10.5 the Customer causes disruptions in the operation of the Marbell cloud infrastructure platform;
10.6 the Customer uses Marbell Services for illegal actions;
10.7 the Customer does not comply with his contractual obligations although he has been reminded of this by Marbell by registered letter with a period of notice of 10 days;
10.8 the Customer becomes insolvent;
10.9 regulatory or legal changes come into force which significantly affect the activities of Marbell.
11 Set-off, assignment, transfer and pledge
11.1 Marbell is entitled to offset its claims against counterclaims of the Customer.
11.2 The Customer expressly waives the right to set off his debts against any claims he may have against Marbell.
11.3 Marbell is entitled to transfer the contractual relationship or rights and obligations arising from it to another domestic company without the consent of the Customer if Marbell directly or indirectly controls this company.
11.4 Marbell is entitled to transfer or assign contracts or claims arising therefrom to third parties for collection or financing purposes without the consent of the Customer.
11.5 The Customer may not assign rights and obligations from the contractual relationship to third parties without the prior written consent of Marbell. This consent will not be refused without reason.
12 Sevice level matters
12.1 Marbell warrants that it will use commercially reasonable efforts to perform the Services substantially in accordance with the Service Levels ("Service Levels") set forth in the applicable Service Level Agreement ("SLA"). Subject to the limitations set forth herein and in the SLA, Marbell may change the Service Levels at its sole discretion. In the event that Beelastic does not meet a Service Level during the period set forth in the SLA, Marbell will provide, as the sole and exclusive remedy of the Customer and as Beelstic's sole liability for non-compliance with a Service Level, the Service Level Credits in the manner set forth in the SLA ("Service Level Credits"). The Customer forfeits any unused Service Level Credits that exist at the time of termination or expiration of these Terms and Conditions or any other Services.
12.2 Service Level Guidelines: Marbell processes Service Level Credits for Service Events as defined in the SLA. If an event has occurred which qualifies for a Service Level Credit and such event is not covered by a proactive Service Level Credit, the Customer must open a ticket with Marbell within ten (10) days after the event has occurred and provide the details of the event. Otherwise, the Customer loses any right to claim the due date of a service level credit. In order to calculate whether a service level credit is due and to determine the duration of an event, Marbell calculates time periods starting from (a) the time stamp of the alarm in Marbell's monitoring systems or (b) the time stamp of the ticket submitted by the Customer, whichever is earlier, until Marbell has solved the event. Unless otherwise specified, the performance target ("Performance Target") is based on the full calendar month of service since the last renewal period in which the SLA event occurs. The maximum Service Level Credits that can be earned for a calendar month may not exceed 100% of the portion of the committed recurring revenue of the affected Services. Excess Service Level Credits expire and will not be carried over to future months.
13.1 "Confidential Information" is all information, including these GTC, regarding the Customer's telecommunication needs and the Services which Marbell offers under these GTC, which is disclosed by one party ("disclosing party") to the other party ("receiving party"), insofar as this information is marked as confidential or protected. Notwithstanding the foregoing, all written or oral price and contract offers exchanged between the Parties shall be considered confidential information, whether or not marked as such.
13.2 Confidential Information shall be the property of the disclosing Party and shall be returned to the disclosing Party upon request. Information that (i) is independently developed by the Receiving Party, (ii) is received by the Receiving Party lawfully and free from any obligation of confidentiality or (iii) becomes generally available to the public in ways other than by breach of this MSA shall not be considered Confidential Information.
13.3 A Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall keep all Confidential Information confidential from the time of disclosure until three (3) years after disclosure. During this period, the receiving party: (a) shall use such Confidential Information only for the performance of its obligations under these Terms and Conditions; (b) shall reproduce such Confidential Information only to the extent necessary for such purposes; (c) shall limit disclosure of such Confidential Information to employees who need to know such information for such purposes; (d) shall not disclose Confidential Information to any third party without the prior written consent of the disclosing Party, except as expressly provided in this MSA or as required by law; and (e) shall use at least the same level of care as it would use with respect to its own proprietary or confidential information to prevent the disclosure, unauthorized use or disclosure of Confidential Information.
13.4 In the event that the Receiving Party is required by law to disclose Confidential Information to the Disclosing Party, the Receiving Party shall notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to take remedial action, shall cooperate with the Disclosing Party in taking appropriate protective measures and shall make such disclosure in a manner that maximizes the protection of the Confidential Information from further disclosure.
13.5 Notwithstanding any provisions to the contrary in this article, the fact that the Customer is a customer of Marbell is not considered confidential information and Marbell may disclose this information without liability.
14 Force Majeure
14.1 Neither party shall be liable for failure to perform due to causes beyond its reasonable control, including but not limited to acts of third parties not under the direction or actual control of the party, delay or inability to perform, force majeure, fire, explosion, vandalism, severed cables, flood, storm, or any other similar disaster, law, statute, order, regulation, directive, instruction, act or request of the Government or any department, agency, commission, court or office of any government or any civil or military authority, national emergency, riot, civil commotion, war, strike, lockout or work stoppage (each a "Force Majeure Event"). The Party claiming relief under this Article 13 shall notify the other Party of the occurrence or existence of the Force Majeure Event and of the cessation thereof.
15 Applicable law and place of jurisdiction
15.1 Exclusive place of jurisdiction is Zurich. However, Marbell has the right to sue the Customer before any other competent court.
15.2 The contractual relationship between the Parties shall be governed exclusively by Swiss substantive law. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 ("Vienna Sales Convention") shall not apply.
15.3 If a material provision of these General Terms and Conditions is not enforceable or invalid under the applicable law, it shall only be affected to the extent of its unenforceability or invalidity and shall otherwise be replaced by a valid and enforceable provision which corresponds as closely as possible to the legal and economic meaning of the invalid provision. The remaining provisions of these GTC shall remain binding and in force. The same applies to contractual loopholes.