We are providing our services according to the following General Terms.
These General Terms and Conditions 'General Terms' govern the contractual relationship between all its divisions of Argon Networks Inc. ('AN' or 'Company' hereinafter) and its contractors, clients and users ('Customers'). The services of AN for their Customers are solely provided based on the these General Terms and in addition – if available – based on individual service specifications. Additionally - if available - the Special Terms for the individual services of AN apply. For any requested service by the Customer, these General and Special Terms as well as the individual service specifications form an integral part of any contract between the Customer and AN.
General terms and conditions of the Customer shall not apply even without express objection by AN.
These General Terms, Special Terms, specifications and price lists of AN as well as their changes become part of the contract by either being displayed at the offices of AN for information purposes for the Customer and/or being published on the website of AN respectively on a service-specific website and/or being sent to the Customer. In the case of adverse changes, the Customer has the right to terminate the existing contract to the effective date of the change. Without notice within 4 weeks after publishing of the new terms they shall be deemed as accepted by the Customer.
The contract shall become effective with the receipt (in writing or by email) of an order and its confirmation (in writing or by email) by AN with or without previously issuing a written offer or quote. If AN issued an offer or a quote and/or an order confirmation, these including any attachments will also form part of the contract. A customer order can also be confirmed by the provision of the requested service or by accepting a payment for the intended use of services. AN has the right to reject orders which have not yet been accepted without giving reasons.
Service Delivery / Force Majeure
AN provides the contracted services chosen by the Customer carefully and professionally and in compliance with the agreed service specifications according to currently existing technical and operational possibilities. The average availability of net based services offered by AN directly or through partners is 99% by annual average. Maintenance periods in respect of paragraph 14 of these General Terms shall remain expressly excluded. The exact service level derives from individual service specifications in combination with Special Terms for such services that apply in addition to the General Terms.
Temporary disruptions or disturbances of AN services may occur for reasons of force majeure, labor disputes, governmental reasons and technical changes of AN systems, the systems of suppliers or other network operators (e.g. improvements or changes of the network etc.) or because of other measures arising that are required for a proper or improved operation. If such disruption or disturbances last for more than 10 calendar days, the Customer has the right to withdraw from the contract.
AN is entitled to appoint subcontractors for the provision of services, to the extent that no loss of quality occurs.
Obligations of the Customer
The customer is obliged to keep secret all identification and access codes (PIN 's) provided by AN and to store them in a safe place protected from third party access. He has to immediately change or modify them, if there is a risk that the secrecy is no longer guaranteed.
The customer is obliged not to provide any harassing, immoral, discriminatory, punitive, or other illegal content particularly not to provide any advertising about products or services of AN that has not been previously approved by AN.
For content of services that the customer provides himself, the customer is solely responsible himself. If the customer uses services, products, programs of AN for such content, then AN and its affiliates and contractors cannot be held responsible for the content of the Customer and its Sub-Customers in any way. In this context, as content shall be considered any information, services or transactions are in oral, written or electronic form.
If the customer operates a service, a product or program of AN in its own name, the customer will specify its own name and address or the name and address of the authorized representative when offering the service to its customers. The Customer shall not make the impression that its content might be content of AN. If the Customer fails to comply with this obligation, AN is entitled to pass information to third parties when appropriate.
If the customer operates their own services with independent access to third party providers ('Operators') via an external interface of AN, then the Customer is obliged to follow the conditions of these operators as well as to follow any new instructions which AN receives from the operator regarding the services of the Customer.
The Customer warrants that it also complies with its obligations, if it offers third-party content or allows other suppliers to offer content. In such case the Customer shall obligate such suppliers to also comply with the above obligations.
If the Customer fails to comply with one of the agreed obligations, he has to replace AN internally all damages caused to AN by claims of third parties. In particular, it has to indemnify AN fully and without reservation from claims by third parties. This indemnification also encompasses the time of AN needed for internal and external investigations and the processing and answering inquiries from third parties (operators, press, authorities, consumer organizations, consumers, etc.).
For individual orders, the Customer provides all necessary documents for the execution and implementation of the agreed order. By placing an order, the Customer confirms that it has acquired all necessary rights of holders of copyrights, ancillary copyrights and other rights to the documents and texts provided by the Customer and that it has the right to freely use them. The Customer itself is responsible for the timely and technically flawless delivery of the documents according to the required formats / specifications.
If the service fulfillment requires access to an external infrastructure of the Customer, the Customer ensures that AN has a permanent right to access such infrastructure.
If the service fulfillment requires active contribution of the Customer, the Customer ensures that the right people in sufficient numbers are available throughout the duration of the fulfillment. All costs arising from the contribution of the Customer, shall be borne by the Customer. Additional effort by AN, that arises for AN because the Customer is not fulfilling its contribution obligations, shall be charged additionally.
The Customer agrees not to infringe property rights and copyrights of AN and to comply with the property rights, copyrights and rights of use of the AN (see paragraphs 7.1-7.10, as well as licensing terms of related products and services). In the case of a violation by the Customer, meaning that such rights of AN are breached or circumvented, the Customer shall pay a penalty in the amount of CHF 50,000 in each case. Such liquidated damages shall not limit AN’s rights to further claims. Such payments shall not release the Customer from remedying illegal use.
When collection of fees due by way of direct debit has been agreed, the customer shall notify AN immediately in writing in the case of change of phone number, name, legal form, address or bank account.
The schedules as stipulated in the order confirmation are binding if they have been declared as binding. Any necessary adjustments to the schedule require the agreement of both parties, however its consent shall not be unreasonably denied. If the Customer fails to fulfill its obligations to contribute, the subsequent schedule obligations of AN are postponed for the duration of the delay caused by Customer.
If non-compliance with a schedule is caused by AN, the Customer has the right and the duty to determine a reasonable extension of at least two months to meet fulfillment obligations. If AN cannot fulfill its obligation after this extension, the Customer is entitled to withdraw from the contract, where it can only claim damages for proven additional costs and delay – except subject to further legal liability of AN due to unlawful intent or gross negligence.
Acceptance / warranty
For individual work orders, the Customer is obliged to examine completed work (both intermediate results and final results) immediately after delivery, respectively after service provisioning and to report any complaints within one week from notification of readiness by AN in writing or by email. If such complaint is not filed in time, a given warranty will no longer be applicable.
If the Customer does not approve the fulfillment of AN or parts thereof, in the case that only certain lesser faults or lesser deviations from the defined specifications or if the Customer refuses entering approval procedures, the contract or the part in question is deemed as approved effective on the date of notification of readiness by AN. The productive use of services by the Customer results in each case in an approval of the fulfillment of the compo-nents used productively.
If the approval procedures reveal defects or errors, initially the Customer has only the right of rectification within a month. If an approval procedure proves to be unsuccessful for the third time, the Customer may determine in writing an appropriate grace period of no less than one month to remedy the deficiencies. If AN is not able to eliminate deficiencies, the Customer has the right to reduce the payment in the amount of proven loss in value. However, this reduction applies only to those parts of the work that has been recognized by AN as being deficient. The right of reduction is thus limited to the pro rata value of the deficient part relative to the value of the entire order and cannot imply reductions of other parts that have been correctly executed.
Change requests that go beyond the specification according to the offer / order confirmation or change requests received after acceptance of an intermediate result by the customer (e.g., design drafts, prints), are not defects and are chargeable. Where an amendment is announce by the customer, AN has a deadline of two weeks to inform the customer if the change is possible and what impact this change has on price and dates. Until a decision on the amendment is made, the project as specified in the initial contract is continued, as far as is reasonable.
A defect or error in the above sense is not present when the alleged representation by the use of an unsuitable presentation software or hardware (e.g. browser) or by disorders of communication networks of other companies or computer failure to Internet providers or online services or by incomplete and / or not updated offers on so-called proxy servers (cache) of commercial and non-commercial providers and online services that are outside the responsibility / control of the Company, due to force majeure, strike or other reasons, which are not the responsibility of the company caused .
If any errors occur during the execution of an order, the customer is not entitled to refuse the payment of another job.
If there are defects that were not visible during the acceptance test and which occur within 6 months of purchase, then the customer has the right of repair exclusively within no more than one month, unless the customer objects such defects within five working days after discovery. Should AN not succeed, to prove compliance with the criteria defined in the contract within the repair period of one month from the input of the complaint, the customer can set an appropriate extension deadline, which is at least a month. If AN does not succeed during this extension deadline to eliminate the defects, the customer has the right to make reduction of remuneration in the amount of his loss in value of the proven claims as specified in section 5.3.
The warranty covers neither repair nor increased costs due to external influences such as a changed environment at the customer or the Internet, incorrect operation or other reasons attributable to the customer or third parties. The warranty is void if the customer makes or enables changes to the program code.
If the scope of the supply of hardware and/or software includes third-party manufacturers, then the provisions of the relevant Manufacturer Warranty apply.
Property rights, copyrights and rights of use
AN retains full access and ownership and copyright and intellectual property rights (design) for all designs, drawings, images, designs, text, audio, video, software, database systems, web pages, statistics, calculations, plans or other documents or in offers were provided as part of concepts or in the implementation of contracts and handed over to use. This also includes all documents and information that are classified as confidential. The customer is not entitled to pass such information to third parties, unless expressly authorized by AN in writing. All rights remain with AN, even when the customer uses services or specific software of AN or has been leased to him for use on a license basis. Such software may only be used in the form expressly approved by AN. The customer is especially obliged to leave the marks (names, trademarks, company names, etc.) used by AN unchanged.
In the case of concept work, it is up to the customer, on request, after the concept phase, to acquire the right to the realization of the concept of services and design services of the AN .
AN implements individual programming assignments, websites, mobile apps where possible and appropriate, using standard software products and proprietary software libraries. AN ensures that both AN and the customer have the necessary powers to use such software. AN protects this respect the customer against all third party claims for infringement of intellectual property rights and copyrights. When required for the operation of the programs / sites the customers acquires necessary licenses of third parties, whereas AN supports the customers with advice.
For individual programming work, after full payment of the agreed compensation to AN and only for the components of the software realized for him exclusively the customer purchases the time wise and geographically unrestricted non-exclusive right to use and make available these components on a single web server, respectively on a single Internet address (URL). Excluded from the perpetual right to use are components that are provided to the customers of AN on license basis. All other rights including copyrights remain with AN. In particular, the product produced by AN or parts thereof without the consent of AN may not be modified, distributed or resold. Allowed is only content editing and creating extensions in the context as part of using a content management system (CMS). If the customer intends the use of elements of the site for other purposes (for example, in print media or additional Internet addresses), a separate agreement shall be made. Regardless of that, AN has the indefinite right to use any ideas, concepts, components and processes AN created itself in the creation of other products.
In order to protect its property and copyright AN may require the use of AN own software libraries or that the realized solution for the customer is operated solely on the servers exclusively controlled by AN.
In the case of design works with short or medium purpose of use (advertisements, posters, websites, etc.) AN transfers to the customer the assigned rights to use the works created by AN for the purpose according to the order after full payment. Insofar as no other agreement has been made, the right to use refers to the first use. Any further transfer of rights, in particular the reuse of the contractually agreed purpose beyond the particular use by the end of the cooperation agreement requires the additional compensation. Here, AN expressly reserves the right to be named.
For design work with long-term purpose of use (word marks, figurative marks, logos, logos) AN transmits to the customer the time wise and geographically and context-related sole unrestricted right to use for the works created by AN after full payment. This transfer also includes the right to edit.
The Customer grants AN the right to reference the customer through all communication measures created by AN (website, flyers, posters, etc.) in a subtle form by naming AN or its service-specific websites. Even after the termination of the contract or after the completion of such cooperation such reference cannot be removed, except in the case of a complete new development by a third-party company. In such a case, it is not permitted to continue to use or to reuse any work from AN or even to create the impression that a third party has created the work of AN.
AN is also entitled to point out in one or more of its websites and in other communication activities that AN has realized the communication activities of the customer and to reference them through hyperlinks.
The rights of unfinished works remain fully and solely with AN.
For photo, video and audio production the same conditions as in Section 7.6 shall apply with the following additional restrictions (except where agreed otherwise in writing): a maximum term of use of 2 years, a use exclusively in one country (except for web pages and mobile apps) and all media cumulative reach (prints / TV viewers / page impressions) of less than 250,000.
Fees / third party use
The fees for the services offered by AN are determined by the provided quotation valid when placing the order or according to the currently valid AN price list, which is published on the website of AN or which has been sent to the Customer or that has been agreed in writing, which are also an integral part of this contract.
The Customer shall also pay for services of AN, caused by his use of approved AN services through third parties, by providing them his password or PIN.
The Customer also has to pay fees caused by unauthorized use by third parties, if he is responsible for the unauthorized use. This is particularly the case with respect to breaches of confidentiality obligations regarding PIN or password.
For services where AN performs the payment collection at the end user through partner companies, the payment to the Customer will be made only after receipt of payment from the partner companies. Should the partner company submits a recovery of payment, then AN has the right to request that recovery equally from the Customer. If the Customer issues a credit note to the end customer, then the income share of AN shall not be affected.
Payment / billing / Retention
All invoices of AN are due by the Customer without any deduction upon receipt. The invoice amount shall be collected at the payment date by wire transfer of the Customer or by bank direct debit due to a direct debit order from the Customer's account named therein or by direct debit.
Counterclaims against claims of AN by offset can only be made by the Customer with undisputed or legally established claims. Offset, retention or refusal of performance rights are available to the Customer only if he has claims arising from this contractual relationship.
Any repayment of the Customer because of overpayments, double payments, etc. are credited to the Customer's account and deducted from the next payment due.
For any kind of work orders AN is entitled to demand payment in advance and provide the work only after receipt of payment. Even when partial payment has been agreed upon entering in the agreement, respectively in the offer, AN has at any time, without notice, for no reason or any reason, the right to postpone the execution of the agreement and to demand a full advance payment or collateral to continue the work.
Monthly or annual use independent charges / fees are payable in advance. The usage fee is also fully charged when the service is only partially used for the month or the year respectively and is not refunded. Deviations from this rule must be agreed in writing.
Use-related fees, in particular connection charges are incurred after the service is rendered, payable at the latest upon receipt of the invoice by the Customer.
If the collection should incur administrative extra costs (late payment notice, uncovered check, denial of a debit, etc.), then the Customer has to bear such costs, insofar as he is the responsible for the non-payment or was not entitled to retain.
Objections to the amount of costs / credits must be made immediately upon receipt of the invoice / credit note in writing to the finance department AN by referring to the address shown on the invoice. Objections must be received by AN within four weeks from the date of invoice / credit note date. If the Customer shows no objection within this period, the invoice / credit note shall be deemed approved. Statutory rights of the Customer with objections after the deadline shall not be affected. Use-related fees are based on the AN statistics. These statistics are recognized as valid by the Customer, especially then when the Customer raises objections and technical investigations show no evidence of a source of error.
Delay / Cancellation / Blocking
In the event of late payment the Customer is charged a default interest of 5 % pa, subject to the assertion of further damages.
If the Customer payment is late with an amount of at least 100 CHF and if a eventual prepayment is used, then AN may withheld the contractually agreed performance (blocking) after such blocking was previously announced to the Customer with a 3-day notice period. When resuming performance any agreed setup fees shall apply again. The ability to block a service without notice for good cause remains unaffected.
If the Customer is late in payment for two consecutive months with a substantial portion of the fee owed, or in a more than two-month-long period with an amount of at least 300 CHF, AN may terminate the contract without notice.
If AN or a public authority recognize a breach of contract according to Sections 3.2-3.6, AN has the right to withheld the contractually agreed performance (blocking) immediately and / or to terminate without notice and to claim damages.
The right to terminate without notice for another important reason remains unaffected by the above rule. Such reasons are particularly when insolvency or arbitrage proceedings are opened for any Party. AN is also entitled to extraordinary termination if the Customer has given false information regarding its creditworthiness, address or bank account - as far as the direct debit has been agreed.
Right of withdrawal
AN reserves the right to refuse (reject) an agreement even after the conclusion of the contract, if the execution of the agreement would be unreasonable for AN. This is particularly the case if potentially copyright, competition, press, criminal or other legal regulations are violated by the order or if the client communicates to a little respectful way with AN.
The Customer has the right to be informed of the reasons for the rejection. The Customer in this case entitled to a refund of payments already made. All rights of the work carried out remain with AN. The Customer's rights to documents supplied by him shall remain unaffected. If the unreasonableness of the contract implementation is not the fault of AN, then AN is entitled to deduct the cost of work already done from the refund. Further claims of the Customer are excluded. In the case no payments have been done yet, AN may demand reimbursement for costs already incurred.
Liability and Disclaimer
AN liable for any property damage regardless of the legal reason for willful or grossly negligent causation in accordance with the following paragraph 13.2. Liability is excluded for cases of ordinary negligence, unless significant contractual or cardinal obligations have been violated. In this case, however, AN is only liable for the foreseeable and typically occurring damage to the Customer. A tradeoff of unforeseeable or atypical damages does not occur. In no case AN liable for any lost profits or consequential damages.
In the event of willfully caused breaches of contractual or legal obligations - with the exception of the cardinal obligations – AN is unlimited liable for occurring property damages. For grossly negligent breaches the liability of AN is limited to the maximum amount of compensation paid by the Customer, but at the most limited to a maximum of CHF 20,000 per occurrence.
The liability of AN for the actions of its agents also depends on the foregoing provisions of clauses 13.1 and 13.2.
For the impact of disturbances and interruptions of the services provided by AN, AN is liable in accordance with Section 2.2 of these Terms and Conditions. In particular AN is not liable for malfunctions and interruptions due to force majeure. When and if the cause was the fault of the Customer, the Customer is obliged to reimbursement expenses of AN.
For phone, SMS and mailing services the Customer is liable for all damages arising from the fact that calls or messages are routed to a port or address, without agreement of the receiver (spam).
AN is not liable for the timeliness , accuracy or completeness of the information published .
AN has no influence on the design and contents of third party websites or apps. AN therefore expressly distances itself from all external content, even if pages from AN are linked to these external sites. This applies to all links on AN sites and to all content of the pages to which the banners and links are leading to, as well as for third party entries in the AN guest books, discussion forums and mailing lists.
The Customer cannot derive any claims against AN for damages resulting from the failure of possible use during necessary maintenance work, unless the damage was caused intentionally or by gross negligence by AN. AN shall endeavor to keep the maintenance-related breaks under the existing technical and operational possibilities as low as possible.
Duration of the contract / termination
The contract shall be concluded for an indefinite period and may be terminated with a notice period of three months to the end of the month by either party at any time. When in individual contracts or in the individual special terms and conditions for the services requested by the Customer or in the relevant order form different arrangements regarding contract duration and termination (e.g. minimum term) have been agreed, those will have a preference over the rule contained herein.
If the Customer terminates the contract before the service obligation of AN has started, then he has to reimburse AN for all expenses for necessary work already carried out, unless AN is responsible for the cancellation. The ordinary termination for contracts with a minimum term of the contract before its expiry is excluded.
If a Customer terminates an individual order contract before its completion, then the Customer shall have to pay in full all work already started at fees according to the offer, respectively according to the price list. The early termination is excluded for contracts with a minimum term of the contract before its expiration.
Telecommunications secrecy and data protection
AN collects, processes or uses personal data of the Customer only if and insofar as the individual has consented or if regulations request or permit it.
AN preserves the secrecy of telecommunications in accordance with law. For transferring data of foreign operators the respective national law applies.
Rise and processed , the customer , as he himself is responsible for its customers' personal information to comply with legal requirements such as privacy and secrecy of the services / products provided by AT available.
The Customer agrees that AN transfers or receives data on the application, opening, performance and termination of contracts, and information about the Customer or other information to the relevant credit reference agencies (in Switzerland, for example, credit reform) in accordance with the legal requirements.
The Customer agrees that in the event of a change of residence the credit reference data may be transferred from the current credit reference agency to the newly responsible credit reference agency.
Verbal collateral agreements do not exist. Contractual agreements that deviate from the regulations contained herein, require the written form as well as unilateral declarations of the parties, e.g. objections, terminations, etc.
The Customer may not transfer or assign its rights and obligations deriving from the contract generally. However, AN may at any time assign or transfer its rights and obligations under the agreement to a third party. The Customer gives his express consent to this provision.
If any provision contained herein should be invalid in whole or in part or should the contract contain a gap, then the validity of the remaining provisions shall not be affected. Instead of the ineffective provision shall be replace with a provision which is as equivalent as possible.
This is a translation of the original Terms and Conditions in German. In case of differences the original German version of these Terms and Conditions shall prevail. Jurisdiction / Applicable Law.
Jurisdiction / Applicable Law
The place of jurisdiction for all disputes relating to this contract shall be the registered address of AN. However, AN may make a claim against the Customer in any other court of competent jurisdiction. A possible exclusive jurisdiction remains unaffected.
All legal relationships between AN and the Customer the laws of Switzerland apply.