General terms

General Terms and Conditions

1. Scope

These General Terms and Conditions (GTC) apply to all contracts between Nashire AG and its customers. Delivery of products and services is effectuated exclusively at the conditions laid down in the GTC, the supplementary provisions, the price lists and the individual contracts. Contradicting or diverging conditions of the contractual partner are not recognized unless they have been approved of beforehand expressively and in writing by Nashire AG.

The GTC can be updated, completed or modified at any time by Genotec. The current version published at http://www.nashire.com is binding and can be requested at any time from Nashire. In case of modifications of the GTC resulting in higher costs for the customer, the customer can cancel the contract within a 30-days period. Supplementary provisions (SP) exist with regard to particular services. These provisions are an integral part of the contract and the GTC. The regulations in the GTC regarding applicability and modification
apply to the SP too.

If the customer uses, in addition to the services of Nashire,  third-party services, the customer assumes the responsibility for keeping to the provisions of use of this third party and can be held responsible directly in case of damage. By ordering the customer confirms that he has understood and accepted the GTC and the SP with regard to all points applicable to the relevant contractual relationship.

2. Content

The content of the contract is based upon the provisions for the different areas of service published on the Nashire Web site. The contract between Nashire and the customer comes into being with the dispatch of the online order form or with the signature of a written order form or contract. With the completion of the contract, Nashire commits itself to deliver / provide the services, the customer to accept them and pay for them.

3. Services of Nashire AG

Nashire commits itself to the careful execution of the services in the customer’s interest and to safeguard the latter’s production and business secrets. Nashire reserves the right to make use of the services of a third-party if the need arises.

Within the limits of its operational resources, Nashire makes every endeavor to provide its services around the clock without disturbances or interruptions, but assumes no guarantee for the permanent and uninterrupted access to its services. Nashire does not guarantee that its services are accessible from all end devices without problems. We inform the customer so far as possible about foreseeable interruptions of operations necessary for the execution of maintenance work, for the extension of services etc. By principle, the information is given by means of an entry in the corresponding Nashire support medium. In addition, we may send
a specific email.

The services can be modified anytime if so required by legal provisions, instructions of authorities, or for operational reasons. In particular, technical adaptations aimed at increasing system stability, system security or updating the systems, may result in adaptations of the services. If as a consequence of this,  adaptations on the customer’s side become necessary, Nashire refuses any liability or cost sharing.

Claims under guarantee correspond to the guarantees provided by the manufacturers / resellers. More extensive warranty claims are excluded to the extent permitted by law. The replacement / repair of the components concerned is executed against payment of the amount of work required for solving the problem at the current hourly rate.

4. Obligations of the customer

By concluding this contract, the customer commits himself according to article 5 of these GTC to  accept the services and products which are the object of this contract and to pay for them.

The customer shall not publish information and graphical content violating the law. In particular, the following content/activities are prohibited:

  • display of violence as defined in Article 135 of the Swiss Penal Code (SPC)
  • pornographic writings, recordings or images as defined in Article 197 SPC
  • incitement to violence as defined by Article 259 SPC
  • racial discrimination as defined by Article 261bis SPC
  • instructions or incitement to criminal behavior
  • illegal gambling as defined by the Law on lotteries
  • defamatory statements about third parties or publications infringing moral rights of persons.
  • information which violates intellectual property rights, associated property rights and other intangible rights.

The customer commits himself to communicate any change of address to Nashire. Nashire cannot assume any responsibility due to communication-related difficulties. All related additional expenditures (expenses for checking the address, cost for establishing or sending a new bill, etc.) will be charged to the customer with a minimum amount of CHF 20.–.

Prohibition to abuse the service: The customer must treat all access data confidentially. He commits himself
to take all necessary measures in order to impede that through the leased services third party systems are illicitly accessed, programs are manipulated or computer viruses are spread. The customer is held responsible to the full extent for all damages caused by the abuse of a leased service (for example due to spam actions).

Sending bulk emails (spamming, mail bombing, etc.), as well as spamming, flooding or similar activities in forums, blogs, guest books via Nashire servers in particular or as a Nashire customer in general is forbidden. Operating mailing list to an extent which could endanger the stability of the systems is also strictly forbidden. The sending of advertising e-mails by a customer to third parties without express invitation is inadmissible. If it becomes aware of such activities, Nashire reserves the right to block the access account of the
customer without prior notice until the actual facts are ascertained. Nashire declines any liability for the consequences of such a blockage.

Any impairment of system and network security is forbidden. In particular, it’s forbidden to access without permission data, systems or network elements, to analyze, monitor, scan them or use them without permission in any other way, to check the vulnerability of a system without the express permission of a legitimated person, to tamper with routing information such as TCP/IP addresses or with
information in the routing component (address of the recipient or the sender). Any activity influencing adversely the system stability is forbidden, in particular the use of scripts which lead to a overcharge of the server systems or cause malfunctions. Nashire reserves the right to deactivate or block immediately such activities. The time needed for the restoration of the services will be charged to the responsible party, with a minimum of half an hour at the current hourly rate. The misuse of the server space or of the leased services can entail the termination without notice of the contract. Refund of payments already made is excluded.

The customer exempts Nashire from third party claims in connection with infringements of this paragraph 4.

5. Troubleshooting  for the Services / Support 

Nashire offers a support service via ticketing system to help customers with questions regarding its services. Tariffs and opening hours of the different support services are published on our Web site and can be requested from Nashire during normal office hours. Nashire does not bear the expenses for third-party support.

Disruptions are fixed as fast as possible. No claims can be made against Nashire for interruptions of service due to troubleshooting, maintenance work, implementation of new technologies or similar causes.

Requests / orders by ticket are considered binding up to the cost equivalent of one working hour and are billed at the rates published on the Nashire Web site. If the expected expenditure of time exceeds one working hour, Nashire contacts the customer in advance.

6. Data Backup / System Administration

The customer is responsible on his own to backup his data, besides a backup service is included in the product or bought as a supplemental service.

7. Terms of Payment

The terms of payment are 10 and 30 days, respectively. It’s noted on every invoice which terms of payment apply. Nashire reserves the right to request the entire order value or part of it before the completion of the assignment. The prices are, unless otherwise indicated, ex applicable Value-Added Tax.

In case of delay of payment on the part of the customer, interest on arrears of 5 % shall be charged. A down payment made will be forfeited, if the customer cancels his order with no or with an insufficient justification. If the customer is in default of payment, Nashire is entitled to withdraw from the contract after setting a grace period of 30 days. The customer will be informed immediately in case we exercise our right of withdrawal.

If no payment has been received within 50 days of invoicing and if no cancellation of the contract has taken place, the service, including all related services (e.g. email), will be blocked. In case of a blockage of service, Nashire will charge a handling fee of CHF 50.– incl. VAT for the expenses incurred. The services will be unblocked only on receipt of the payment including the handling fee.

The offsetting of reciprocal financial obligations is subject to prior written approval by Nashire.

 8. Liability

Nashire can be held liable for damages – regardless of the legal basis – only up to one fifth of the  compensation for the particular project and only if willful intent or gross negligence on the part of Nashire can be proven.

The liability for indirect or secondary damages such as loss of gain, economies not realized, interruptions of operations, third-party claims as well as for consequential damages or damages due to data loss is excluded to the extent permitted by law.

Nashire assumes no responsibility for the provision of services up to the server of the customer. It can assume no liability for processes within the sphere of influence of the customer.

Nashire excludes any liability for the interruption of services due to force majeure. The exclusion of liability comprises in particular third-party services, purchased services provided by third parties as well as hardware-related failures. In addition, Nashire excludes any liability for published content and consequential damages due to spelling errors in texts available on the Internet.

Continuous interruptions lasting more than 48 hours entitle the customer to reimbursement of 1/12 of the yearly costs, if they were not caused by an action or a failure to act on the part of the customer or by force majeure. The reimbursement will be credited in case of continuation of the contractual relationship.

Nashire points out that, in particular cases, the spam filters we use can also filter or block desired e-mails. Nashire assumes no liability for emails which don’t arrive at their recipient.

The liability for products corresponds to the liability provisions of the manufacturer / supplier.

9. Partial Nulity

Should one of the provisions be found to be invalid, it shall be replaced by what legally corresponds best to the intended purpose. The other provisions remain valid.

10. Period and cancellation on contract

Contracts are concluded, if not otherwise stated, for an indefinite period and can be canceled by observing a term of notice of one month.

The contract can be canceled without notice by means of a registered letter under the following circumstances:

  • delay of payment of more than 30 days (cancellation by Nashire)
  • in case of a continuous interruption of the services to be supplied lasting more than 2 weeks (cancellation by the customer)
  • in case of a grave breach of duty by one party which makes the continuation of the contractual partnership unacceptable to the harmed party (cancellation by the party harmed by the breach of duty).

11. Data Protection

Customer data are treated in compliance with the Data Protection Act. The customer gives Nashire the express permission to use customer data for marketing purposes (e.g. in order to inform customers on new services and products). Under no circumstances shall Nashire sell or lease customer data to third parties whether as a whole or in part. Only data necessary for the purpose of handling the supplier-customer relationship are stored.

12. Dispute Resolution

Both contractual parties undertake to strive loyally for an amicable settlement in case of differences in opinion regarding the contract, if need be by demanding the arbitral opinion of an independent expert. Both parties declare that the ordinary judge at the legal domicile of Nashire (Allschwil) shall be exclusively competent for the resolution of all disputes arising from or in connection with their contractual relationship: Nashire reserves however the right to bring the customer to justice at his domicile. Swiss material law is exclusively applicable, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods  (CISG).

Allschwil, January 2011