General Terms and Conditions

1.1. Application

These General Terms and Conditions apply to all services (services, managed and cloud services and products) provided by Clue, replace any previous agreements and apply to all contracts between Clue and the customer (hereinafter “Customer”), unless a Master Agreement Managed Services exists between the parties or unless otherwise agreed in writing in individual cases. Any terms and conditions of business and purchase of the customer are deemed to be excluded.

1.2. Notification

These GTC and their amendments will be made known in particular by publishing them on Clue’s website (www.clue.ch), by printing them in its documentation, on its quotations, order confirmations, delivery bills and invoices..

1.3. Special terms and conditions

For services in the area of Managed Services, Maintenance Services and Cloud Services, the corresponding special terms and conditions apply, if available/applicable. These may legally deviate from these General Terms and Conditions. Should individual provisions of these General Terms and Conditions and the Special Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. In this case, the invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. Insofar as these General Terms and Conditions, the Special Terms and Conditions and any individual written agreement do not contain any provisions, the provisions of the Swiss Code of Obligations shall apply on a subsidiary basis.

1.4. Adaptations

Clue is entitled to adapt the services and these GTC to the extent that Clue considers this to be reasonable and feasible and the interests of the customer are not unreasonably impaired as a result. Clue shall provide advance written notice of any changes to these terms and conditions. In the event of significant changes to the contract, the customer has the right to terminate the contract in writing by the time the change comes into effect, whereby existing orders remain unaffected. If the customer fails to do so or continues to use the services, products or similar after the new GTC have come into force, these shall be deemed to have been accepted. The current GTC can be viewed at www.clue.ch.

1.5. Service provider

Clue reserves the right to appoint another company as the provider of the contractually agreed services (Internet, telephony, hardware, maintenance, etc.) instead of the originally designated company and/or to use third-party providers or subcontractors. The customer agrees

2.1. Commencement and duration of the contract

The contract between Clue and the customer is concluded when the customer signs/orders the offer, whereby the content of the offer is deemed to have been approved. By signing/ordering, the customer confirms that he/she has taken note of these General Terms and Conditions and the Special Terms and Conditions and agrees to them without restriction. In the case of an order via the Internet/telephone, the contract shall commence when the corresponding order confirmation/confirmation e-mail has been sent to the customer. Even in the absence of an offer, the contractual relationship begins at the latest when the product/service is used. Delivery of the order confirmation or other documents by e-mail is binding on the parties and is deemed equivalent to delivery by post. Clue reserves the right to refuse to conclude a contract without giving reasons. The standard contract term is 36 months, unless otherwise agreed in writing.

1.2. Termination

If a written contract is submitted, the minimum duration, the notice period and the termination date are determined by the respective contract concluded with Clue. If the contract is terminated before expiry of the agreed minimum duration or on a date not agreed, the amount/fee will not be refunded pro rata temporis and will be forfeited to Clue. With the exception of fixed-term contracts, all contracts and subscriptions are tacitly renewed for a further year after the agreed contract or subscription period, unless they are terminated in writing by either party with three months’ notice to the end of a month on the anniversary of the start date.

1.2.1. Early termination is possible under the following circumstances: 

• In the event of prolonged unavailability of the contractual service: In the event of proven permanent or prolonged unavailability of the contractually agreed service for which the customer cannot be held responsible, Clue and the relevant partners shall refund the customer the fee for the remaining term of the contract or subscription from the time the unavailability occurs (pro rata temporis calculation). Force majeure is expressly reserved to relieve Clue. “Prolonged unavailability” in this sense is understood to mean a period of at least five consecutive working days from receipt of the registered letter in which the customer informs Clue of the service interruption. Clue’s limitation of liability shall apply.

• In the event of late payment by the customer: If outstanding invoices are not paid despite a grace period being set, Clue may terminate the contract or subscription prematurely with 30 days’ notice. Premature termination due to non-payment of invoices has the following consequences: Clue, as the provider, is released from its obligation to perform after the deadline has expired without result. The customer owes Clue the invoices due and the fees until the next contractually agreed termination date. All outstanding amounts and fees are due immediately upon receipt of the early termination.

• In the event of unlawful, inappropriate or abusive behavior on the part of the customer: With the current state of technology, the performance of the Internet network and the quality of telephone connections are influenced by physical aspects of the transmission method and the transmission medium. Furthermore, the functionality depends directly on the adequate use by the respective user. Clue must ensure efficient operation and, where possible, prevent inappropriate or abusive behavior. Inappropriate or abusive behavior includes in particular: abusive use of the unlimited internet connection (e.g. uninterrupted downloading by one or more computers; abusive telephone calls; inappropriate and/or improper use of the telephone connection; any use that impairs the proper functioning and security of the internet; systematic and/or aggressive sending of advertising emails, begging letters, etc. (spam); sending of messages that impair the proper functioning and security of the internet. (spam); sending messages, files, etc. with violent, pornographic, racist, offensive or similar content; Provision of websites and information (blogs) with violent, pornographic, racist, offensive to human dignity and similar content; alienation or poor maintenance of the material provided by the provider. In each case, Clue will decide whether the behavior is unlawful, inappropriate or abusive. Clue bases its decision in particular on the complaints of other users. Clue may, at its own discretion, send the customer a reminder or discontinue the service without further notice until the customer undertakes to refrain from the conduct for which it is accused in the future. If the customer refuses or fails to make such a commitment and in the event of repeated unlawful, inappropriate or abusive behavior, Clue may terminate the contract or subscription prematurely with immediate effect. The consequences are the same as for non-payment by the customer (see above). In the event of a serious breach of Net Etiquette/Godwin’s Law or conduct relevant under criminal law based on information transmitted or provided, the provider may terminate the contract or subscription prematurely with immediate effect.

• At the customer’s request: long-term contracts can be terminated prematurely by the customer. In the event of early termination at the customer’s request, the customer shall be liable for the disconnection fee charged by Swisscom, Sunrise or other providers and for the early termination fees as follows: The customer must pay the entire fee due for the duration of the contract. If the contract period exceeds one year, the customer shall owe the full amount for the current year, 50% for the following year and 25% for each additional year. In addition, any discounts granted at the time of commissioning for contracts with a term of more than one year must be reimbursed to the provider in full. Early termination shall result in the immediate termination of the contractually agreed services, unless otherwise agreed.

• In the event of a breach of the relevant special terms and conditions.

After termination of the contractual relationship, the items and documents, etc. owned by Clue and provided to the customer must be returned to Clue immediately, but no later than 14 calendar days after termination of the contract, at the customer’s expense and risk until they are received by Clue. If the customer does not comply with this obligation to return the items and documents, the customer is obliged to pay damages in the amount of the replacement value of the items and documents, unless greater damages are proven.

Clue may terminate the contract without notice if insolvency, bankruptcy, probate or similar proceedings have been opened against the customer or if an application for the opening of such proceedings has been filed. The customer is obliged to inform Clue immediately of such circumstances. If the contract is terminated prematurely for a reason for which the customer is responsible, Clue is entitled to demand compensation in the amount of the fee that would have been incurred for the remainder of the contract period. Clue reserves the right to assert further claims.

2.3.  Indivisibility of the service  

The contractually agreed services or services included in the subscription are granted as a whole and are limited in time. The customer may therefore not terminate the contract or the subscription for only part of the services. Without prior written authorization, the customer is strictly prohibited from transferring, reselling or assigning services provided by the provider as part of the contract or subscription to third parties. The public internet addresses provided by the provider never become the property of the customer. They remain at all times the property of the provider legally registered with the European Coordination Authority for IP Networks RIPE. The customer declares that he is aware of the restrictions relating to the acquisition, in particular as a trademark, and ownership of the domain names. According to the applicable legal provisions, the definitive acquisition of a domain name is not possible (see, inter alia, the Ordinance on Addressing Elements in the Telecommunications Sector (AEFV: SR 784.104). In case of doubt, the customer can contact the regulatory bodies (switch.ch, internic.com). The top-level domains processed by the provider (.com, .ch, .org, .net, etc.) correspond to the top-level domains recognized by ICANN (Internet Corporation for Assigned Names and Numbers). If the customer has any questions, he can contact this official body directly (www.icann.org).

Clue and the customer shall make every effort to ensure the proper and faithful performance of the contract. In particular, they undertake to inform the other party of any circumstances that may affect the performance of the contract and to comply with the principles of Internet etiquette (“Net Etiquette”, “Godwin’s Law”). The customer must inform Clue truthfully about all aspects that could affect its contractual capacity or the quality of the services to be provided by the service provider. When using the services made available to him, such as internet access, telephony and other services, the customer shall comply strictly with Swiss legislation and the applicable international agreements. In particular, he shall ensure that he does not violate the provisions of the Swiss Criminal Code, in particular the Telecommunications Act and its ordinances. The customer is liable for acts of a civil and criminal nature and releases Clue from any responsibility in the event of criminal prosecution. The customer shall strictly comply with Swiss legislation when using the infrastructure made available to him.

3.1. Clue’s obligations and scope of services

Clue is responsible for the permanent availability of the IT infrastructure. For maintenance purposes and in the event of unexpected system failures, Clue may at any time and without notice restrict the availability of the services or put them out of operation for an indefinite period. If Clue provides services free of charge, these may be discontinued at any time and without prior notice. There is no entitlement to a reduction, reimbursement or compensation. Any delays caused by force majeure and/or due to events that make it significantly more difficult or impossible for Clue to provide the service – in particular strikes, lockouts, official orders, the failure of communication networks and gateways of other providers – entitle Clue to extend the delivery or service provision by at least the duration of the event, plus a reasonable grace period.

3.2.        Customer Responsibilities

The customer is responsible for an appropriate working environment and the operation of their own infrastructure and computer systems and works closely with Clue to achieve the best possible results. The provision of internet or telephone services and managed services and their quality are closely linked to the location of the customer’s connection when the contract is signed and the accuracy of the customer’s details. Any changes of address, including those within the same place of residence or building, must be communicated to Clue immediately without prior request and, if possible, sufficiently in advance. If a change of address is not reported, Clue may charge the customer for any costs incurred in searching for the address. Clue accepts no liability if the service is unavailable due to the customer’s relocation or the discontinuation of a third-party service. Clue reserves the right to connect the most suitable service for the customer’s place of residence in place of the unavailable service. Clue shall invoice the customer for the costs of the technical change and the costs incurred by third parties (e.g. Swisscom, Sunrise, other providers) as a result of the move, in particular the line rental paid and the costs of canceling the line. In the same way, the customer must inform Clue without request of any changes to their e-mail address and also of any changes to their situation that could affect the provider’s services. The customer is responsible for the hardware and software components (including programs, licensing and configuration) on their end devices. The Service Provider does not guarantee that its services will function properly on the customer’s technically inadequately equipped end devices.

4.1. Compensation for expenses

Unless otherwise agreed in writing between Clue and the customer, Clue’s services shall be invoiced on a time and material basis. In addition to the above-mentioned services, this also includes assistance and support by telephone and remote access. The compensable time includes the time spent at the customer’s premises or the time spent on telephone support or remote access or the corresponding travel time.

4.2. Tariffs

The rates and provisions set out in the contract apply, plus expenses where incurred and chargeable. If no specific agreements have been made, the usual commercial rate or value of the goods shall be deemed to be owed. The minimum duration of an intervention at the Service Recipient’s premises is two hours, the duration of a remote intervention is half an hour; in each case irrespective of the actual duration.

4.3. Invoices

All invoices from Clue are due for payment within 30 days of the invoice date, from which date an interest rate of 5% above the CHF Libor begins to accrue.

4.4. Reminder fee

A fee of CHF 20 will be charged for a reminder after the payment deadline has expired, irrespective of any further interest on arrears.

4.5. Suspension of services

If the customer defaults on payment, Clue is entitled to suspend its services or deliveries. In this case, the customer has no claim to performance by Clue and remains obliged to pay any periodic fees or maintenance costs in full.

4.6. Deposit

Clue may demand a deposit from the customer at any time to cover the services it provides, in particular for the provision of materials, the exceptional increase in data volume and security in the event of late payment. If the customer does not provide the required guarantee within the period granted, Clue is entitled to refuse or discontinue the provision of services without further notice. The customer bears full and sole responsibility for the consequences of the service interruption and cannot claim any compensation (see 2.2).

5.1.        Limitation

The use of Clue’s services shall not give rise to any liability claims to the extent permitted by law. The customer is advised of the limitations of the internet and telephony network and of the risks associated with their use. Clue does not assume any obligation to produce results, but only an obligation of means. Clue does not guarantee the constant availability of the internet and telephone network, nor does it guarantee an uninterrupted connection or a minimum data rate. Clue reserves the right to reinitialize or temporarily interrupt the connection for technical reasons. Clue undertakes to adhere to the “best effort” principle, i.e. to use all human and material resources available to Clue at all times, to the best of its knowledge and belief and in accordance with its technical expertise, in order to achieve the desired result. Under no circumstances shall Clue be liable for acts, omissions, service interruptions, quality problems or delays caused by third parties. It is the customer’s responsibility to install the necessary security systems (firewall, strong authentication, reverse proxy, intrusion detection, vulnerability detection, SIEM, …) to protect against illegal attacks. Clue can – if desired – provide the customer with technical solutions for a fee.

Clue is not liable for any damages incurred by the customer due to a temporary or permanent interruption or delay of the services or the network, such as loss of profits, loss of business data, unavailability of data, etc. (direct and indirect damages). In particular, Clue shall not be liable in the following cases:

• Direct or indirect consequential damages in the event of malfunctions of Clue’s infrastructure, in particular in the event of malfunctions of the leased lines of Clue’s subcontractors;
• Electronic messages that are transmitted incorrectly, not at all, illegally or are intercepted by third parties;
• Lack of or inadequate confidentiality of encrypted data, especially if Clue acts as a certification authority or offers other cryptology services;
• Processing errors in the handling of business transactions via the internet (electronic commerce), in particular not in the case of transmission errors of credit card data or other payment information;
• Missing or inadequate hit rates in internet search engines, even if the customer has expressly commissioned Clue to carry out the search engine registrations;
• Legal disputes resulting from domain name registrations or domain name deletions initiated by Clue on behalf of the customer.

5.2. Liability

In any case, Clue shall only be liable for direct damage in the event of proof of impairment of the customer due to gross negligence on the part of an employee or a defect in the proposed (security) solution up to an amount of CHF 50,000 after tax. Liability for indirect or consequential damages of any kind, in particular for loss of production and use, loss of data, loss of profit or other indirect damages as well as for damages due to force majeure is excluded and again expressly excluded, subject to mandatory statutory liability provisions. Liability in accordance with the Federal Act of June 18, 1993 on Product Liability (Product Liability Act, PrHG) remains unaffected in all cases.

The customer has been informed of the type, scope, location and purpose of the collection, processing and use of the personal data required for the performance of services. Clue’s data protection policy applies in accordance with Section 6.1. Clue transmits the data collected to companies affiliated with Clue, including foreign companies, insofar as this is necessary for the purpose of fulfilling the contract.

6.1. Data protection policy

Clue endeavors to use the customer data of which it becomes aware in accordance with the law, whereby Clue endeavors to comply with national and international data protection regulations. Accordingly, Clue informs customers about the processing of their data in accordance with data protection regulations. The Federal Act of June 19, 1992 on Data Protection (FADP) defines processing as any handling of personal data, regardless of the means and procedures used.

6.2. Data collection

a) Customer data is recorded when the order is placed. This takes place either as part of a contract initiation in direct contact between the customer and or online via the corresponding web forms;

b) in addition to the personal data, depending on the service, various data about the customer’s technical infrastructure is also collected, e.g. hardware serial numbers, software licenses, network environment, access data, installation routines, IP addresses, etc. This data is collected solely for the purpose of providing comprehensive customer support.

c) when visiting the Clue homepage, the following information is stored for each visitor, but this is only used for statistical purposes and does not allow any conclusions to be drawn about the user: IP address used, browser incl. version, operating system incl. version and (if available) the domain that led to www.clue.ch (search engine, banner, etc.). Clue may use the customer’s IP address to ensure compliance with these GTC or the security of the services, the homepage or other users.

6.3. Use of data

The data collected by Clue is used for the purpose of fulfilling the contract. In addition, Clue is entitled to use the data for information purposes about other Clue products.

7.1.        Confidentiality

All activities for and with the customer are treated as confidential. Clue shall take the necessary precautions to safeguard the relevant information from the collaboration. The parties undertake to keep information of the contractual partner designated as confidential secret and not to make it accessible to unauthorized third parties. In particular, the content of contracts, including annexes – even without a specific confidentiality clause – shall be deemed confidential. If unlawful or immoral acts are detected, Clue is entitled to hand over customer addresses to third parties, namely law enforcement authorities.

7.2. Intellectual property

The customer has the right to use the products, inventions and applications of Clue Security Services AG insofar as these are related to contractual agreements. However, Clue is the owner and commercial user of these inventions and developments. Any deviation from this requires the written approval of Clue. The customer has the right to use the products, inventions and applications of Clue Security Services AG insofar as these are related to contractual agreements. However, Clue is the owner and commercial user of these inventions and developments. Any deviation from this requires the written approval of Clue.

7.3. Poaching of personnel

Neither party may recruit employees of the other party for itself or for a third party without the consent of the other party for the duration of the business transaction and for one year thereafter. Anyone who hires or employs an employee of the other party without the written consent of the other party, or procures or otherwise utilizes the services of the other party, shall pay the other party compensation for the resulting personnel recruitment and introduction of personnel in the amount of a quarter of the annual salary of this employee, but at least CHF 25,000.

The place of performance is CH-6340 Baar. The General Terms and Conditions and the individual contracts concluded are subject to Swiss law. The exclusive place of jurisdiction for all disputes arising from these General Terms and Conditions, the Managed Service Contracts and the individual contracts concluded is Baar/ZG, unless another legally binding place of jurisdiction exists.

Valid from 23.11.2017

Members of the Board of Directors: Johannes Raff, Reza Kordi

UID no.: CHE-214.228.088