General terms and conditions
GENERAL TERMS AND CONDITIONS for services of DOLPHIN Systems AG
These terms and conditions apply to all business relationships between DOLPHIN Systems AG, 8832 Wollerau, Switzerland (hereinafter referred to as "Dolphin Systems") and its clients. They only apply, however, to clients entering into contractual relationships with Dolphin Systems as part of their professional or commercial activities and are therefore not acting as private individuals or consumers within the meaning of the applicable legal provisions.
2. Nature and extent of the services agreed
3. Reporting incidents and deficiencies
The client shall provide detailed notice of any defects and disruptions to Dolphin Systems services and systems in written or text form (e.g. email or fax) without delay.
4. Cooperation required of the client
Clients will perform those services such as may be necessary for the fulfilment of the contract, including those specifically stipulated therein. These constitute an essential contractual obligation for clients.
5. Prices, terms of payment
5.1 Unless otherwise agreed on a case-by-case basis, the fees to be paid by clients for services shall be based on the current applicable price list plus statutory VAT and any other statutory levies.
5.2 Prices for services are subject to change. Dolphin Systems will provide at least two months' notice before the effective date of the new pricing. In the case of price increases of more than 5% within 12 months, clients are entitled to terminate the contract as of the effective date of the price increase with written notice given no later than one month after receipt of the price increase notice.
5.3 Any payments in default will be charged fees at the applicable statutory default interest rate. Dolphin Systems expressly reserves the right to assert further damages caused by such default. Dolphin Systems will charge CHF 20 for each payment reminder after the first. For customers invoiced in euros, this fee will be €20.
5.4 Clients may only offset recognised, undisputed, or legally valid claims against the claims of Dolphin Systems; the same are the only basis for refusing to make or retain payments. Client rights relating to defects remain unaffected.
5.5 Objections to the usage-based fees invoiced for services must be asserted in writing within 30 days of receipt of the invoice. If no objection is raised by this deadline, the invoice is deemed accepted.
6. Use of information
6.2 Personal data transmitted by clients will be processed and used by Dolphin Systems exclusively for the same as instructed (third-party data processing). Clients will determine additional technical and organisational measures for the processing and use of this personal data in consultation with Dolphin Systems. Clients will reimburse Dolphin Systems for any costs and expenses in connection with the implementation of such measures on the basis of the applicable price list.
6.3 Dolphin Systems may interrupt client access to their systems if there is a risk to the security of the data.
7. Defects and incidents
7.1 Dolphin Systems' liability for defects is especially based on the nature of the services as agreed. Insofar as a specific property for the systems has not been agreed upon, the statutory provisions shall determine whether a defect exists or not.
7.2 Dolphin Systems will promptly investigate reported defects in its services and initiate procedures to remedy the same if the defect falls within its responsibility.
7.3 Clients may only reduce the fees payable for defects if they provide notice of the same without delay as stipulated in §3. The fees may only be reduced in proportion to the restricted usability of the services resulting from said defect.
7.4 The expenses necessary for troubleshooting and the remedy shall be borne by Dolphin Systems if there is actually a defect. If it is determined that there is no defect, and/or the defect is the responsibility of the client, Dolphin Systems can demand reimbursement from the buyer for the costs arising from the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defect was not reasonably apparent to the client.
7.5 Any products supplied by Dolphin Systems are covered by a two-year warranty for material and legal defects.
Dolphin Systems accepts liability for the diligent and careful execution of its services. Otherwise, its liability is excluded to the extent permitted by law. The liability for its vicarious agents and employees as well as for the conduct of third parties such as manufacturers or suppliers is likewise expressly excluded to the extent permitted by law.
Liability for indirect or consequential damages, such as loss of profit, unrealised savings, claims by third parties for consequential damages, or damages from loss of data is excluded to the extent permitted by law.
The liability for property and pecuniary losses is capped at CHF 500,000.00. The foregoing limitations and exclusions do not apply to:
a. personal injury;
b. breaches of the legal guarantee;
c. damages resulting from gross negligence or intentional actions.
9. Intellectual property
Unless otherwise specified in the applicable contract, software and rights, intellectual property rights such as trademarks, patents, designs and copyrights as well as other documents and data remain the property of Dolphin Systems or its licensors. Clients may not grant sublicenses to the same.
Clients may not modify or edit software made available to their use. Clients may not copy or reproduce software in whole or in part.
10. Duration, termination
The respective contract period is based on the conditions published at the time the contract is signed for that particular type of contract on the Dolphin Systems website or as otherwise specified in the licensing agreement. If not terminated by the deadline stipulated therein, the contract shall be automatically renewed for the agreed contractual term. The contract may be terminated by either party as of the end of the current contract period, provided written notice is sent by post by the deadline stipulated. The postmark determines the submission date. Early termination of the contract does not establish the right to any partial refunds. Unused credits will not be refunded. Only funds on deposit are excluded and may be refunded upon request by paying the appropriate fee. Hourly and data credits are based exclusively on the agreed contract duration.
11. Other agreements
11.1 Ancillary agreements, supplementary provisions, amendments or addenda to the service contract including the service description must be made in writing in order to be effective. The waiver of the written form requirement also requires the written form.
11.2 Client terms and conditions do not apply unless expressly confirmed in writing by Dolphin Systems.
11.3 After the end of the contract, Dolphin Systems is entitled to store or destroy all documents and information received from clients, unless otherwise required by law.
11.4 Any assignment of rights or assignment of duties requires the prior written consent of the other party.
11.5 The exclusive place of jurisdiction for all disputes arising from and in connection with the service contract is Wollerau, Switzerland.
11.6 For all legal questions arising from the order and its processing, Swiss law applies under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
24/7 access to the service is agreed to the extent technically possible. Technical disruptions for which Dolphin Systems is responsible will be rectified as soon as possible. Otherwise, Dolphin Systems is available to provide subscribers with technical assistance and help with installation and application issues during normal office hours. If the level of support required by subscribers exceeds the usual scope or is caused by their improper use of the service or a malfunction of their equipment, Dolphin Systems expressly reserves the right to charge additional fees for such extra support.
4. Subscriber rights and duties
4.1 Unless otherwise agreed in writing in advance with Dolphin Systems, only subscribers may use the contractual services of Dolphin Systems. Subscribers are expressly prohibited from making these services available to third parties. They may transfer their contractual rights and duties to third parties only with the express written consent of Dolphin Systems.
4.2 Subscribers are responsible for each use of its connection to the services and agrees to comply at all times with the applicable domestic and international legal provisions when using and using said services (for distribution or retrieval), in particular the regulations of data protection, telecommunications, copyright, and criminal law.
4.3 Subscribers will notify Dolphin Systems if they become aware that the services offered are being used illegally by third parties (hackers, etc.).
4.4 Subscribers agree to take precautions to ensure a secure flow of data in order to prevent unauthorised interference with third-party systems and the spread of viruses. They will endeavour to reduce existing privacy risks in their systems (emails, newsgroups, file transfers, etc.) as much as possible using such methods as encryption, periodic password changes, etc.
4.5 Subscribers shall keep the equipment (hardware and software) used to access the services of Dolphin Systems in good working order. Subscribers shall bear the necessary material and installation costs as well as the ongoing telecommunication costs.
4.6 Subscribers will only send messages to recipients whom they know have agreed to receive the same.
4.7 Subscribers are solely responsible for the content of their messages as well as the frequency and the times they are sent. In particular, subscribers are prohibited from transmitting illegal or harassing content. Dolphin Systems has the right to suspend subscriber accounts without prior notice if there is reasonable suspicion of misuse.
4.8 If subscribers are sending promotional messages, they must provide a hotline number in the text.
4.9 Any illegal users discovered or reported will be blocked by Dolphin Systems.
4.10 Subscribers shall eliminate or take the necessary steps at their own cost to eliminate risks arising from offenses or events (hacker attacks, crashes, virus attack, etc.) on connected computer equipment and which are not the result of the intentional actions or gross negligence of Dolphin Systems, since they are in control of the extent of their privacy risk and must take action to optimise their level of protection through firewalls, data backups, virus protection, etc.
4.11 Any disclosure of credit card numbers, passwords, or sensitive data is done at the sole risk of subscribers. The risks associated with online shopping lie entirely with subscribers. The above does not apply if Dolphin Systems is guilty of wilful misconduct or negligence.
4.12 The sending of messages with chargeable numbers (e.g. 0900...) in the text is not permitted.
4.13 Accounts that are not used for a continuous period of 12 months (no login has been recorded) will be automatically deleted with any remaining credit forfeited.
5. Data protection
Dolphin Systems may provide users with information about other products or services of Dolphin Systems (e.g. in the form of a newsletter or by post). If users no longer wishes to receive such messages from Dolphin Systems, they may unsubscribe at any time by email to firstname.lastname@example.org, by post, or by calling using the contact details given on www.ecall.ch.
Any liability of Dolphin Systems to users for their use of the service is excluded to the extent permitted by law.
7. Final provisions