General Terms and Conditions (GTC)
Web development and hosting w-vision AG
w-vision AG is a publishing and web development company providing the following services under the w-vision brand:
a) Consulting including the development of concepts
b) Conducting workshops
c) Creation of individual websites based on open source software
d) Licensing of additional tools developed by w-vision AG
e) Offering standard templates for websites and adapting them to the individual needs of the customer
f) Web hosting
Scope and Validity
These General Terms and Conditions (hereinafter "GTC") apply to all work results, services and products provided by w-vision AG under the w-vision brand. Deviations from these GTC are only valid if they are made in an agreement signed by both parties in writing and with reference to these GTC. The GTC are an integral part of all offers and contracts between the customer and w-vision AG. The customer's terms and conditions are expressly excluded.
Subject matter of the contract
The services owed by w-vision AG are regulated in detail in the individual agreement (offer accepted by the customer, written contract or order confirmation).
The contract between w-vision AG and the customer consists of the following documents:
a) Individual agreement
b) Acceptance protocol
d) Document SLA Service Packages
e) Price list for hosting and standard solutions (Yamiro)
f) General Terms and Conditions.
In the event of any discrepancy between the respective documents, the above ranking order shall apply.
Conclusion of contract
Offers from w-vision AG are binding for three (3) months from the date of issue. The contract is concluded when the customer accepts the offer in writing or verbally. In any case, the contract is concluded when the customer accepts the performance of services by w-vision AG.
Quotations are prepared on the basis of the information provided by the customer to w-vision AG at this time. Should it later become apparent that additional services are necessary due to additional or changed information or services have to be adjusted, these shall be deemed additional services and shall only be provided against additional remuneration (see clause 7 "Changes to Services").
Creation of websites
Services of w-vision AG
w-vision AG creates individual websites for the customer on the basis of open source software. In addition, w-vision AG offers its customers standardized templates for websites that can be adapted to the customer's needs. The services to be provided by w-vision AG, the concrete course of the project and the project organization are regulated in the individual agreements. The costs for presentations, workshops and concepts, which are provided before the conclusion of the contract in accordance with section 4 above, will be invoiced at the applicable hourly rates.
Cooperation in projects
The customer will designate a contact person who is authorized to make decisions and who can act on behalf of the customer. The customer is also obliged to provide the personnel resources required for the implementation of the project and to provide w-vision AG with all necessary information in good time (see clause 8).
Dates can be extended in principle. They are only binding if this is regulated accordingly in these General Terms and Conditions or if they are expressly agreed and marked as such in the individual agreement.
If either party recognizes that an agreed deadline cannot be met, it will inform the other party as soon as possible.
Deadlines which have been expressly agreed as binding can only be postponed with the consent of both parties. Consent may be refused in justified cases.
If w-vision AG is culpably unable to meet a binding deadline, the customer must warn w-vision AG and grant a reasonable extension of time. If w-vision AG does not perform the agreed service within a second reasonable period of grace, then it is in default.
If delays occur for which w-vision AG is not responsible (but the customer, force majeure, third parties, etc.), the dates shall be postponed accordingly.
Testing and acceptance
The client is obliged to carefully check the services of w-vision AG for correctness and to report any defects immediately in writing. With the declaration "Good to print or good to screen", the performance of w-vision AG is deemed accepted. If the customer fails to notify w-vision AG within 10 days of delivery / provision / service, the service is deemed to have been approved in all functions.
The customer may only refuse acceptance if there are serious defects. In this case, the defects must be remedied by w-vision AG within a reasonable period of time and the result of the work must be made available again for acceptance.
If the defects cannot be remedied even after at least two reasonable grace periods have been set, the customer may demand an appropriate price reduction. Conversion is expressly excluded.
If only minor defects remain during the inspection of the work result prior to acceptance, the service shall be deemed to have been accepted. The defects are recorded and remedied free of charge within a reasonable period of time within the scope of w-vision AG's warranty obligation.
Copyrights and Rights of use
The websites of w-vision AG are created on the basis of open-source software. The customer is aware that he must comply with the corresponding licenses. The customer can find out more about the open source software used and the open source licenses on the w-vision AG website at www.w-vision.ch
In addition, the websites created by w-vision AG consist of software and software parts to which w-vision AG holds the rights. w-vision AG grants the customer a non-transferable and non-exclusive right to use the software and software parts provided by w-vision AG for the agreed duration (max. contract period).
Unless otherwise agreed, the rights to the graphic design are held either by w-vision AG or by the third parties involved. w-vision AG also grants the customer a non-transferable and non-exclusive right to use the software for the agreed duration (max. contract period) in accordance with the contract and the intended purpose.
Software Maintenance and development
w-vision AG provides maintenance services against separate remuneration on the basis of a separate agreement in the SLAs. Delivery of major releases is not included in the SLA and must be agreed and remunerated separately.
w-vision AG provides the customer with the agreed amount of storage space on its servers in an external data center. The services are generally available to the customer 24 hours a day, 7 days a week.
Unless otherwise agreed, all data will be backed up daily to a backup system in another data center. The data is stored for 5 days retroactively and then transferred again.
Unless otherwise agreed, the service package SLA-Basic is included in the contract with the customer in accordance with the document SLA Service Packages. Other service packages must be agreed separately.
w-vision AG provides telephone and e-mail support at the hourly rates listed in the respective service package. w-vision AG considers the period of time during which support cases are accepted by w-vision AG and services are performed as a stand-by period. Unless otherwise agreed, the regular stand-by period extends over normal working hours (working days excluding Saturdays, Sundays and federal, cantonal or local holidays, from 8 a.m. to 12 noon and from 1.30 p.m. to 5 p.m.).
With the response time, the maximum time span (after receipt of a proper support request) during which an employee of w-vision AG contacts the customer is contractually determined.
w-vision AG undertakes to adhere to the reaction time contained in the agreed service package for the services provided by it in the event of a proper support request from the customer. The following support requests are considered to be correct:
- by the customer by e-mail (notification received by firstname.lastname@example.org during the regular availability period)
- by telephone to w-vision AG (receipt of the report under the telephone number 041 926 07 20 during the regular standby period)
Additional work and service changes
Additional expenses caused by the customer as a result of revision or modification of templates as well as changes made after the start of the order, e.g. to the structure of a website, can be additionally charged by w-vision AG. The customer can demand additional budgeting with costs. Text editing and small-scale optimizations are excluded from the above rules. If pictures and other contents are not provided in the agreed quality by the customer, w-vision AG can invoice the additional costs caused by this.
The customer is obliged not to exceed the contractually agreed data transfer volume. Fee-based traffic is the amount of data that is more than twice the average data volume of other customers with a comparable hosting package. w-vision AG reserves the right to limit or charge the data traffic in the case of an excessive use of traffic, after written warning to the customer. The overproduced traffic is charged per GB at the current prices. If exceeding the agreed data transfer volume results in the data center provider having to pay an additional fee, w-vision AG is entitled to invoice the customer for this plus the expenses of w-vision AG.
Changes to services must be ordered in writing. If additional expenses arise for w-vision AG with the adjustment of the services, these are to be remunerated separately.
Obligations of the customer to cooperate
The customer is obliged to create all technical and organisational framework conditions in good time so that w-vision AG can provide the agreed services.
In particular, the customer is obliged to name competent and sufficiently authorised contact persons, to guarantee access to data and rooms and to provide w-vision AG with all necessary information in the required form and to keep it up-to-date.
The customer undertakes to inform w-vision AG immediately if it becomes aware of defects, malfunctions or unavailability of services or systems, this also applies in the event of suspicion of misuse of the services.
The customer is aware that the success of the service is dependent on his qualitatively sufficient and timely cooperation.
Involvement of third parties
w-vision AG is entitled to call in subcontractors / assistants to provide its services in accordance with this contract.
w-vision AG guarantees to provide the services owed according to the individual agreement by properly trained specialist personnel and in compliance with the care customary in their company. In addition, w-vision AG guarantees that its services have the contractually agreed characteristics.
Creation of Websites
Unless otherwise agreed in the individual agreements for the creation of the website, the warranty period is 12 weeks and begins with the acceptance. The customer shall immediately notify w-vision AG in writing of any defects discovered during the warranty period. At the discretion of w-vision AG, w-vision AG will either remedy the defect or deliver a replacement free of charge. All further warranty claims are, as far as legally permissible, excluded. The contractual assurances do not apply in the case of incidents or circumstances whose causes are not within the control of w-vision AG, but are wholly or partly attributable to the fault of third parties, the customer or force majeure or for which they are jointly responsible.
w-vision AG does not guarantee that all functions will remain unchanged when delivering minor or major releases. w-vision AG reserves the right to change or optimize processes and functions of the website at any time. w-vision AG can also give no guarantee for the quality, functionality and freedom from defects of the open-source software. The customer is therefore entitled to warranty claims due to software defects directly against the manufacturer of the open source software in accordance with the respective license agreement.
As far as hosting services are concerned, w-vision AG cannot guarantee uninterrupted availability of the services and/or the website. w-vison AG provides the agreed services within the scope of the financial and human resources at its disposal in accordance with the current state of the art.
The client is only entitled to a reclaim or reduction of the fee if the service is not available for more than 10 hours during normal working hours within a calendar month and w-vision AG is responsible for this in accordance with section 11. The burden of proof regarding unavailability lies with the customer. The reclaim or reduction claims expire if the cancellation has not been notified in writing to w-vision AG within 30 days after the end of the affected calendar month and the reclaim or reduction of the fees has not been asserted.
Announced interruptions (e.g. maintenance work, etc.) are not considered faults. Interruptions that are beyond w-vision AG's control, such as interruptions of leased lines of telecommunications companies (e.g. Swisscom) or disturbances due to force majeure, are also excluded. w-vision AG endeavours to keep interruptions in connection with system maintenance and servicing to a minimum and, wherever possible, to keep traffic to a minimum. The customer cannot assert any claims against w-vision AG due to such interruptions.
w-vision AG is liable to the customer without limitation for personal injury as well as for damage caused to the customer intentionally or through gross negligence within the scope of the performance of the contract. Liability for slight negligence is excluded to the extent permitted by law. w-vision AG can call in third party suppliers and subcontractors for the fulfillment of the contract. w-vision AG is liable for the fault of subcontractors as for its own.
w-vision AG is only liable for data loss resulting from intentional or grossly negligent violation of the data backup obligation according to the individual agreement. w-vision AG is not liable for data loss caused by the customer.
Any liability and guarantee of w-vision AG for all rights of the customer to the domain names indicated by him is excluded. The customer assures that he does not knowingly infringe any rights of third parties (such as trademark rights, name rights or company rights) with the domain name he has indicated. In the event that w-vision AG is held liable by third parties for the violation of such rights, the customer undertakes to hold w-vision AG harmless. w-vision AG also reserves the right to block the relevant domain name.
Illegal use of the service and responsibility for content
The customer is responsible for the content of information (texts, images, sounds, computer programs, databases, audio/video files, etc.) which he himself or third parties transmit, retrieve or make available for retrieval via the website. This also applies to references (especially links) to such information. In particular, no content, products or services may be offered, distributed or made accessible through the services of w-vision AG that violate the applicable national or international legal system. In particular, the customer is obliged to observe the applicable laws against the distribution of illegal and immoral content as well as content that is harmful to minors and for the protection of copyright.
In addition, the customer is expressly prohibited from using the services of w-vision AG to damage or harass third parties, in particular by spreading viruses or sending unsolicited mass mails (spam).
The customer is liable to w-vision AG for all damages which he causes to w-vision AG due to contractual or illegal use of the services (in particular also of the data center).
If an illegal use by an authority is indicated, if it is obvious or if there is considerable suspicion of such an illegal use, in particular on the basis of information from third parties, w-vision AG is entitled to interrupt the provision of the agreed services, to suspend the service for a certain period of time and/or to dissolve the contract without notice and without compensation. In such a case, w-vision AG is also entitled to disclose the customer's data to the responsible authority.
w-vision AG expressly reserves the right to take further measures and to assert claims for damages in court in the event of unlawful use.
Confidentiality, data protection and data security
The parties assure each other that they will treat all business secrets of which they become aware in the course of the performance of the contract with absolute confidentiality. This provision shall also apply after termination of the contract and shall not end until the information and data concerned have become generally known.
Both w-vision AG and the customer undertake to comply with the applicable statutory data protection regulations. In particular, w-vision AG will use the customer's data exclusively for contract fulfilment and not for its own purposes. No data will be passed on to unauthorized third parties. The customer is responsible for taking the necessary measures for data security (confidentiality, user ID, password, virus protection, firewall, backup etc.).
w-vision AG takes appropriate measures to protect the proper operation of its technical infrastructure against negative external influences (viruses and other harmful programs and files, unauthorized access to systems and data, etc.). However, w-vision AG cannot guarantee that these measures will always be effective. The measures to be taken by w-vision AG to secure the customer's data are determined by the individual agreement. w-vision AG is not obliged to carry out any further data backup measures of its own accord.
Duration and termination
Creation of websites
Concerning one-time services, the agreement ends in principle with the fulfillment (e.g. activation of the website or training). If an already placed order is cancelled or cancelled by the customer before or during its creation, w-vision AG shall be indemnified by the customer. In particular, it is entitled to invoice all expenses incurred (including all expenses). Concerning the ongoing service, the client owes w-vision AG all costs incurred in this connection (including the fee for the agreed minimum contract duration).
Unless otherwise agreed, contracts for recurring services are for an unlimited period. The agreement must be terminated in writing with three (3) months' notice to the end of each year, calculated from the beginning of the service.
Payments already made beyond the period of notice will not be refunded. By mutual agreement, the contract may also be terminated within other periods or on a different date.
Termination of contract for good cause
For good cause, w-vision AG may terminate the contract at any time with immediate effect, discontinue its services and/or block access. An important reason exists in particular if the customer publishes illegal contents, does not pay the owed payments within a reasonable period of grace despite a reminder or violates the copyrights of w-vision AG despite a reminder.
Consequences of termination of contract
w-vision AG is entitled to delete all data of the customer on the systems of w-vision AG upon termination of the contract. The customer is responsible for the timely backup of his data before termination of the contract. In the event of an extraordinary termination without notice, w-vision AG will not delete the data before expiry of a 10-day period from the date of termination of the contract. The provisions regarding copyright, liability, data protection, and references etc. shall continue to apply even after termination of the contractual relationship.
Prices and terms of payment
The prices specified in the offer or order confirmation are authoritative. If a lump sum price is agreed, w-vision AG is entitled, unless otherwise agreed, to charge 50% of the invoice amount upon conclusion of the contract (signature of the offer), the remaining 50% upon training or online placement.
Services which are not included in a lump sum or remuneration for a recurring service will be invoiced at the hourly or daily rates specified in the individual agreement or the agreed SLA package.
Fees for recurring services
The fees must be paid in advance for the agreed settlement period and must be paid by the first day of the respective settlement period at the latest. The amount of the fees depends on the current price lists. w-vision AG is entitled to adjust the fees at any time with 30 days' notice to the end of the period of notice. w-vision AG can also implement fee reductions or improvements to its range of services with a shorter notice period.
Terms of payment
All prices are exclusive of VAT, other taxes, fees or charges. The VAT amount is shown separately. For mandatory work from Monday to Friday before 8.00 a.m. and after 5.00 p.m. a surcharge of 25% and on weekends and public holidays of 50% is due.
Unless otherwise agreed, all invoices are due for payment within 10 days. After expiry of the payment term the customer is in default without reminder and w-vision AG is entitled to 6% default interest and reimbursement of all reminder, collection, lawyer and court costs as well as any further damages. In this case, w-vision AG has the right to deactivate the customer's website after setting a grace period of 10 days in writing and by registered mail and to reactivate it only after payment has been made and after calculation of the expenses incurred by w-vision AG.
w-vision AG may increase or decrease prices annually. Price changes must be notified to the customer at least one (1) month before the end of the period of notice. If w-vision AG does not receive notice of termination by the customer within this period, this shall be deemed to be agreement with the price change. No price changes are possible during any agreed minimum term of the contract.
w-vision AG may provide the customer as a reference (e.g. for marketing purposes) and may publish the customer's project after its implementation. The customer will be informed accordingly in advance.
w-vision AG is entitled to address all notifications by e-mail to the customer, including announcements of new services or technical maintenance work, payment reminders, commissioning confirmations, notices of termination, notifications of means of identification and access, etc.
Final provisions, applicable law, place of jurisdiction
w-vision AG reserves the right to amend the GTC at any time. The customer will be notified of any changes to the GTC in an appropriate manner. If the customer does not agree with the amended GTC, he can terminate the contract immediately on the next regular termination date. If w-vision AG has not received a notice of termination within 14 days, the new GTC shall be deemed accepted by the customer.
Should one or more clauses of these General Terms and Conditions be or become invalid or void or should the General Terms and Conditions contain gaps, the validity of the remaining clauses shall remain unaffected. The invalid clauses are not to be interpreted or replaced at the expense of the author, but in such a way that they correspond as closely as possible to the intended economic purpose. The same applies in the event of a gap.
The contractual agreement or individual rights and obligations may only be transferred to third parties with the prior written consent of the other party.
The offsetting of claims of the customer with claims of w-vision AG is excluded.
The contracting parties undertake to hold a crisis meeting without delay in the event of possible conflicts arising under this contractual agreement in order to discuss further action.
The legal relationship between the parties is, however, subject to Swiss law to the exclusion of state treaty provisions (in particular the UN Convention on Contracts for the International Sale of Goods).
In the event of disputes, the courts at the registered office of w-vision AG shall have exclusive jurisdiction.