General terms and conditions
1 Scope of application
These General Terms and Conditions, insofar as they have been effectively incorporated into the contract, shall apply to all contracts concluded by the company LIVTEC. Poststrasse 1, 6343 Rotkreuz, (hereinafter referred to as “LIVTEC”) concludes with its customers.
LIVTEC’s contractual obligations to perform arise entirely from these General Terms and Conditions. Deviating or supplementary terms and conditions of the customer shall only apply if LIVTEC expressly agrees to their validity. The unconditional performance of the contract does not constitute agreement with such terms and conditions of the customer.
Insofar as domains are the subject matter of the contractual relationship and insofar as these General Terms and Conditions do not regulate anything to the contrary, the Terms and Conditions of the respective responsible registry (e.g. in the case of DENIC the DENIC Terms and Conditions of Registration, the DENIC Registration Guidelines as well as the DENIC Direct Price List) shall apply to the registration and shall also become part of the contract.
Violations of the terms and conditions of the registries may result in sub-level domains not being registered, not being transferred, being transferred against the will of the holder or being deleted. The customer is solely responsible for ensuring that the requirements of the terms and conditions for a sub-level domain registration with the respective registry are met. LIVTEC’s contractual obligation to perform comprises solely the procurement of the sub-level domain and the technical execution of the registration. LIVTEC is not obliged to check the availability of a domain or compliance with the registration conditions of the respective registry.
LIVTEC accepts no responsibility for any delay in domain registration resulting from the responsibility of the customer or the registry.
The order for registration of a sub-level domain may be rejected by LIVTEC if the application gives reason to believe that this will violate legal provisions, terms and conditions of the competent registry or legitimate interests of LIVTEC.
Insofar as the terms and conditions of individual awarding bodies become the subject matter of the contract in accordance with Clause 1 (3) LIVTEC, the customer – insofar as it is a sub-provider/reseller – is in turn obliged to effectively incorporate these terms and conditions into the contracts with its end customers (hereinafter “end customers”).
The customer shall compensate LIVTEC for all damage and indemnify LIVTEC on first demand against all claims, costs and expenses arising from the fact that
the customer intentionally or negligently fails to make the terms and conditions of the respective awarding authority concerned part of the contract with its end customers;
the customer or the customer’s end customer wilfully or negligently fails to comply with the obligations set out in the terms and conditions of the registry concerned or wilfully or negligently fails to comply with the requirements necessary for domain registration;
the end customer makes a claim against LIVTEC under this contract or the domain registration on which the contract is based due to the customer’s intentional or negligent conduct.
2 Obligations of LIVTEC, changes in performance and prices
LIVTEC provides its services on the basis of the current technical, legal and commercial framework conditions for the use of the Internet at the time the contract is concluded. An extension of the services due to the technical development of the Internet after conclusion of the contract requires a separate agreement.
LIVTEC may amend the General Terms and Conditions,
insofar as the customer is not placed in a worse position by the change or
insofar as essential provisions of the contract (e.g. type and scope of the agreed services and the term including termination provisions) are not affected thereby and this is necessary to adapt to developments, in particular technical, legal or regulatory changes, which could not be foreseen with certainty when the contract was concluded and the failure to take them into account would noticeably disturb the balance of the contract or
insofar as this is necessary to eliminate difficulties in the performance of the contract due to regulatory gaps that have arisen after the conclusion of the contract; this may be the case in particular if case law or legislation changes and, for example, individual clauses of these GTC become ineffective as a result. In this case, LIVTEC will replace the invalid GTC with a legally valid GTC that is comparable in meaning.
A change in the charges payable by the customer shall be made exclusively in accordance with the following paragraph (3).
LIVTEC shall be entitled to adjust the charges in the event of a change in the statutory value added tax while maintaining the original contractual equivalence ratio from the time and in the amount of the change for the future by means of a unilateral declaration to the customer.
LIVTEC shall notify the customer of the changes pursuant to paragraph (2) in writing by e-mail. If the customer does not object to individual or all changes in writing by e-mail within six (6) weeks of receipt of the change notification, the notified changes shall be deemed to have been approved. The service provider shall inform the customer in the written notification of the beginning of the period, the significance and the consequences of his silence. If the customer exercises his right of objection, the contract shall be continued with regard to the individual regulations complained of under the previous terms and conditions until the expiry of the minimum contract term. In this case, LIVTEC reserves the right to terminate the contract in due time at the next possible point in time.
LIVTEC is entitled to change the IP addresses if this is absolutely necessary (e.g. due to technical necessity). A change of IP addresses does not imply a change of the contractual relationship and does not affect the rights and obligations arising from the contractual relationship.
Insofar as the activation of a domain is also the subject of the contract, LIVTEC will only activate this once the fees owed for the registration have been received by LIVTEC. Insofar as the provision of servers by LIVTEC is the subject of the contract, LIVTEC will only activate these after payment of the fees owed as connection costs.
Performance and delivery dates are only binding if confirmed in writing. Insofar as the provision of servers is the subject matter of the contract, the dates communicated for the connection are to be understood as “earliest dates for the connection”, unless expressly agreed otherwise. In principle, no default can result from non-compliance with such a date.
3 Prices and delay
Unless deviating prices have been expressly agreed in the respective individual contract, LIVTEC’s current price list shall apply.
In the case of domains, the price is due for the first time upon their registration, in the case of a change of provider (ChProv application) at the start; in the case of an extension of the contractual relationship, the agreed fee for the extension period is due in advance in each case and is to be paid at the latest on the 1st working day of the respective extension period.
An agreed monthly flat fee is also due in advance in each case.
Other fees are due within 10 days after invoicing.
Insofar as the customer authorises LIVTEC to collect fees due from an account named by the customer, the customer is obliged to ensure that there are sufficient funds in the account. In case of doubt, a collection authorisation granted shall extend to all bank details notified by the customer within the framework of the contractual relationship and shall cover all payments owed by the customer to LIVTEC within the contractual relationship.
If the direct debit from the customer’s account fails for lack of funds or is reversed at the customer’s instigation, LIVTEC shall be entitled to claim the costs incurred (e.g. return direct debit fees) in addition as minimum damages. Furthermore, LIVTEC is entitled to charge a processing fee of CHF 10.00 per failed direct debit, unless the customer proves that no or significantly lower damage has actually been incurred.
If the customer exceeds a contractually agreed scope of use (e.g. a traffic flat rate), he shall be obliged to pay the corresponding reasonable additional fee. If the customer does not use or only partially uses a scope of use made available to him, the agreed fees shall not be reduced.
A claim to remuneration that is not dependent on use shall also remain unaffected insofar as disruptions to the quality of access to the Internet and/or data traffic on the Internet occur due to force majeure or due to other events for which LIVTEC is not responsible and cannot influence (e.g. failure of communication networks and/or gateways of other operators). In any case, the customer cannot derive any claims (in particular for reimbursement) if a disruption extends over a period of no more than one working day. However, in the event of significant impairments over a substantial period of time (at least 8 consecutive days), the customer is entitled to terminate the contract without notice.
The customer may only offset claims with uncontested or legally established claims. The customer is only entitled to assert a right of retention due to counterclaims from the same contractual relationship.
In the case of a domain registration as the subject matter of the contract, LIVTEC shall be entitled, in the event of good cause, at its own discretion either to block the Internet presence affected by the contractual relationship at the customer’s expense or to return the domain to the respective registry.
Insofar as the subject matter of the contract is the provision of a virtual / dedicated server and/or server housing, LIVTEC shall be entitled to temporarily disconnect the server from the network for good cause.
This also applies if the customer acts as a sub-provider/reseller.
Good cause shall be deemed to exist in particular if the customer is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive billing periods (e.g. two months in the case of monthly fees) or is in default of payment of an amount corresponding to at least two billing periods for a period longer than two billing periods.
In the event of a blocking carried out by LIVTEC in accordance with the contract, the customer remains liable to LIVTEC for the agreed flat-rate fees. LIVTEC is also entitled to assert a right of retention to the domain names concerned as long as not all payment claims have been satisfied by the customer. LIVTEC reserves the right to assert further claims due to default of payment.
If the customer is in default of payment of the remuneration owed for two consecutive billing periods (e.g. two months in the case of monthly fees) or for a period longer than two billing periods with an amount corresponding to at least two billing periods, the remuneration agreed for the entire term of the contract concluded with the customer shall immediately become due for payment in total.
If the “Prepaid” setting has been stored for the customer, the customer must ensure that there are sufficient funds (credit balance) to extend a contract. If the customer’s account does not have sufficient funds for a new contract or a contract extension, LIVTEC will not conclude or extend the contract. In this case, the affected settings and data deposited by the customer will be deleted on the servers of LIVTEC and affected domains will be returned to the respective registries or deleted. The customer will be informed of this by e-mail.
4Warranty, availability, maintenance
The internet web servers of LIVTEC achieve an annual average accessibility and availability of 99.0% based on 24 hours a day and 7 days a week. Excluded from this are times when the web server cannot be reached via the Internet due to technical or other problems that lie outside the sphere of influence or responsibility of LIVTEC (e.g. force majeure, fault of third parties). In addition, uninterrupted availability of data cannot be guaranteed during the period of technical work (e.g. maintenance), which regularly accounts for a maximum of 2% of the total annual running time. Should a service interruption or restriction be necessary for preventive maintenance work, these will be announced in advance as far as possible.
LIVTEC shall immediately remedy any disruptions to performance (e.g. of its technical equipment) within the framework of the existing technical and operational possibilities. In the event of faults that are recognisable to the customer, the customer is obliged to notify LIVTEC of these in writing without delay (fault report).
If the provision of services in accordance with the contract is disrupted due to circumstances for which LIVTEC is responsible and if LIVTEC does not provide this service even after written notification by the customer and expiry of a reasonable period of time, the customer shall be entitled to reduce the current fees for the period and to the extent that LIVTEC has not provided these services properly. The rights to refuse performance to which the customer is legally entitled remain unaffected by these provisions. The customer’s right to extraordinary termination shall also remain unaffected by this.
Information for the customer about disruptions, including interruptions and restrictions to operation, is provided exclusively in the customer area of the LIVTEC website, which can be accessed at livtec.ch/status. The customer is obliged to inform himself there at regular intervals about corresponding notifications. LIVTEC is entitled, at its own discretion, to additionally inform the customer by e-mail.
5 Duties and Obligations of the Customer / Misuse
The customer undertakes
not to publish any data, content or information on the Internet that violates legal provisions, the rights of third parties and/or morality, in particular no phishing websites or other harmful programmes and content (viruses, Trojans, etc.);
to refrain from placing an excessive load on the networks through the untargeted or improper dissemination of data, in particular to send e-mails containing advertising or to send more than 30 e-mails per minute without the express consent of the respective recipient;
to observe recognised principles of data security, in particular to keep access codes and passwords secret and to protect them from use by unauthorised third parties, as well as to take sufficient, state-of-the-art protective measures against computer viruses and other harmful programs (including their distribution);
to ensure that the scripts and programs used by the customer on a server of LIVTEC are not afflicted with errors that could interfere with the provision of services by LIVTEC;
To notify LIVTEC immediately in writing of any recognisable defects or damage (fault report) and to take all measures that enable the defects or damage and their causes to be identified or facilitate and accelerate the elimination of the fault;
ensure compliance with all applicable legal requirements and regulatory requirements.
The customer warrants that the data provided and/or transmitted by it within the framework of the conclusion and performance of the contract are correct and complete. In the event of changes, the customer is obliged to inform LIVTEC immediately.
Insofar as server services are the subject matter of the contract, it is the responsibility of the customer to transmit complete and accurate data records. The administration of the server is the responsibility of the customer.
The customer is solely responsible for ensuring that the address designations (domain, e-mail addresses) chosen by him are free and do not violate legal prohibitions or morality or infringe the rights of third parties.
In the case of server services, the customer is solely responsible for the content/information of his dedicated server.
If the customer is a reseller of a domain, it is his responsibility to effectively pass on to his end customers the obligations arising from these Terms and Conditions and, if applicable, the Terms and Conditions of the respective Domian registry.
The customer is solely responsible for providing the necessary functioning technical infrastructure (e.g. hardware, software with TCP/IP protocol, browser, modem, telecommunication connection, etc.) required for the use of LIVTEC’s services. The general administration of the services and performances provided by LIVTEC is also the sole responsibility of the customer.
In the event of an order for the registration of domains, the customer shall ensure the technical prerequisites for the connection of the domain and shall immediately check the proper registration. After the successful registration, the customer shall check the functionality of the access on the Internet and the data published in this context at the registries (in the case of .de domains, for example, the publications at www.denic.de/webwhois/) and shall inform LIVTEC immediately of any recognisable errors and malfunctions.
Insofar as access codes, passwords and/or personal passwords come to the knowledge of third parties as a result of intentional or negligent conduct on the part of the customer, the customer shall bear the risk of misuse.
The customer must inform LIVTEC without delay as soon as it becomes aware that its access codes and passwords or personal passwords are known to unauthorised third parties. In addition, the customer is obliged to change these access passwords or personal passwords immediately if there is reason to suspect that a third party may have gained knowledge of them. Personal passwords must be changed by the customer at regular intervals (at least every 6 months). The passwords must be chosen by the customer in such a way that a sufficient security level is guaranteed (at least 8 characters, use of upper and lower case letters and special characters, no information from the customer’s personal environment, such as date of birth, name of children, etc., primarily use of letter combinations, no words of one language). In the event of an incorrectly entered personal password three times in succession or the justified suspicion of misuse, LIVTEC is entitled to temporarily block the access in question, regularly until the following day.
The customer is obliged to regularly make back-up copies of its data (at least once on each working day on which the data stock has been changed in any way, as well as before each installation of hardware or software). Damages due to a loss of data for which LIVTEC is responsible shall only be compensated insofar as these would also have arisen in the event of a proper data backup by the customer.
If LIVTEC becomes aware of specific indications that there has been a breach of the obligations under clause 5 (1), LIVTEC shall be entitled to discontinue the services in whole or in part until the breach has been remedied or the suspicion has been dispelled.
Insofar as the subject matter of the contract is the provision of a virtual / dedicated server and/or server housing, LIVTEC shall be entitled to temporarily disconnect the server from the network until the breach of the obligations of section 5 (1) has been remedied or the suspicion has been dispelled.
LIVTEC shall inform the customer immediately of such a measure and request him to remedy the infringement, in particular to delete allegedly illegal content, or to demonstrate and, if necessary, prove that there has been no infringement of clause 5 (1). The same shall apply if the blocking of a website is due to an official or court order against LIVTEC. LIVTEC will lift the blocking as soon as the suspicion of a breach of clause 5 (1) has been rebutted and any official or court order has been lifted.
In the event of a significant breach of duty against clause 5 (1), LIVTEC shall also be entitled to terminate the contractual relationship accordingly without notice.
In addition, LIVTEC is entitled to delete or permanently block the customer’s website and/or return the domain to the respective registry in the event of particularly serious violations of the ban on publishing offensive, discriminatory or otherwise illegal content.
Insofar as the subject matter of the contract is the provision of a virtual/dedicated server and/or server housing, LIVTEC also reserves the right in the aforementioned case to permanently disconnect the server from the network.
Before taking any of the aforementioned measures, LIVTEC shall draw the customer’s attention to the customer’s breach of its obligations and set a reasonable deadline for the customer to remedy the breach. Should such a deadline not be reasonable for LIVTEC due to the seriousness of the breach of duty, the respective measure will be implemented with immediate effect and the customer will be informed immediately. The final deletion of the website or the return of the domain to the registry will only be carried out if no milder suitable means to eliminate the condition contrary to the contract can be identified.
If the customer is responsible for a breach of duty pursuant to clauses 5 (1) to 5 (8), it shall be obliged to compensate LIVTEC for the damage arising from the breach of duty as well as the related expenses for its elimination. The customer shall indemnify LIVTEC against all claims by third parties (including court costs and lawyers’ fees for the defence against the claims) which are based on such a culpable breach of duty.
6 Data protection
LIVTEC points out that personal data of the customer (e.g. name, address) will be stored within the framework of the execution of the contract, insofar as this is necessary for the provision of the contractual service and its invoicing. For the purpose of the execution of the contract, this data may also be transmitted to third parties, in particular the registries, and published to the usual extent for the identification of the owner of the domain (including possible public queries in so-called whois databases). In doing so, LIVTEC will observe the legal provisions on data protection, in particular the Federal Data Protection Act and the Telemedia Act.
If the customer acts as a reseller, the customer shall be responsible for ensuring that the transmission of data of the end customers is carried out in accordance with data protection requirements.
The customer may at any time request information regarding the data stored about him/her by LIVTEC and, in the event of inaccuracy, request its correction.
The customer is aware that data transmitted unencrypted via the Internet is not secure and can be accessed and modified by third parties.
7 Confidentiality and secrecy obligation
Both contracting parties undertake to keep secret all confidential information made accessible to them in connection with the contractual relationship and – insofar as this is not required to achieve the purpose of the contract – neither to record nor to pass on or otherwise exploit it.
The information is confidential if it has been marked as such or if it is recognisable as a business or trade secret from the other circumstances. In particular, the area of contract implementation and execution, including the technical aspects disclosed to the respective contractual partner in the process, as well as all other information not accessible to the public, must be treated confidentially.
The confidentiality obligations under this Agreement shall not apply to information
which are already demonstrably publicly accessible or later become publicly accessible without this being attributable to an act of the recipient of the information which is contrary to law or to the contract,
which can be shown to have been lawfully in the possession of or known to the other party without any obligation of confidentiality prior to receipt by either party, or
which have demonstrably been lawfully disclosed to a party by a third party without an obligation of confidentiality, or
which can be shown to have been independently developed by one party without access to confidential information of the other party, or
are demonstrably obvious or become obvious without this being attributable to an act of the recipient of the information in breach of law or contract, or
which have been expressly released by written declaration, or
which must be disclosed due to legal regulations or official or judicial orders.
By means of appropriate contractual agreements with employees and/or other agents, the contracting parties shall ensure that they refrain from any disclosure or other unauthorised use of such confidential information – also for an unlimited period of time.
The obligation of confidentiality implies that the contracting parties must handle the confidential information with care and protect it in the same way as they do their own confidential information.
The confidentiality obligation shall continue to apply beyond the termination of the contractual relationship for a period of 3 years from the end of the contract.
8 Limitation of liability and claims for damages
LIVTEC shall be liable without limitation for damage caused by intent or gross negligence on the part of LIVTEC, its legal representatives or vicarious agents, as well as for damage resulting from injury to life, limb or health. This applies to contractual as well as non-contractual (tortious) claims. The same applies in the case of liability for a guarantee or assurance, which must, however, be given in writing. In cases in which only simple vicarious agents of LIVTEC can be accused of gross negligence, liability shall be limited to such damages as may typically be expected to occur within the framework of the contractual relationship.
In the event of simple negligence, LIVTEC shall only be liable for indirect damage, consequential damage or loss of profit insofar as a breach of material contractual obligations is involved. An obligation is essential to the contract if its fulfilment makes the proper execution of the contract possible in the first place and the customer could rely on its fulfilment. Liability is limited to the typically foreseeable damage. LIVTEC shall also be liable if there is a mandatory liability based on the Product Liability Act.
Liability for delay and impossibility for which LIVTEC is responsible shall also be limited to such damages as may typically be expected to arise within the framework of the contractual relationship. In the event of only slight negligence, LIVTEC shall only be liable for direct damage. This limitation also applies in cases of liability due to injury to other legal assets of the customer.
In the event of simple negligence, LIVTEC shall not be liable for content or programmes (software) distributed on the Internet and for any resulting damage of any kind (network infrastructure errors, defective data carriers, etc.). In the case of standard software applications (e.g. MS-Word, operating system: Linux etc.) this also applies to software used by LIVTEC. In any case, the customer is exclusively responsible for software used by him (e.g. on the server), including its licensing.
If LIVTEC’s liability is based on an event caused by a third party and if the third party’s liability is limited by law (e.g. on the basis of the TKG or the TMG), LIVTEC’s liability towards the customer shall be limited to the same extent as the third party’s liability towards LIVTEC, unless LIVTEC, its legal representatives or vicarious agents can be accused of intent or gross negligence or the breach of an essential contractual obligation, or the damage is due to injury to life, body or health.
Otherwise, the amount of liability for financial loss shall be limited to the typically foreseeable damage.
LIVTEC accepts no liability for the correct functioning of infrastructures and transmission paths of the Internet or for the information transmitted via them (neither for their completeness, correctness or up-to-dateness nor for their being free of third-party rights), insofar as these do not lie within LIVTEC’s area of responsibility. LIVTEC is also not liable for any loss of use caused by third parties outside its area of responsibility. In particular, LIVTEC shall not be liable for such circumstances outside its area of responsibility in the case of the registration of domains in the automated procedure by the customer.
The above provisions shall also apply in favour of LIVTEC’s employees and other vicariousagents.
It is the sole responsibility of the customer to ensure that its Internet presence and other content or the Internet presence and other content of its end customers do not violate applicable law. LIVTEC has no corresponding obligation to check.
In the case of claims for damages against LIVTEC arising from ancillary contractual obligations and other claims due to a defect, the limitation period shall be one year from the statutory commencement of the limitation period.
9 Term of contract & termination
Unless otherwise agreed, contracts shall be concluded for a minimum term of one year. If the contract is not terminated in due time at the end of the contract period, it shall be extended by a further year in each case.
The ordinary period of notice for contracts whose subject matter is server services shall be three (3) months to the end of the contractual term. If domains are the subject of the contractual relationship, the period of notice shall be one (1) month to the end of the contractual term.
This does not affect the premature extraordinary termination for good cause, in particular in the cases provided for in these terms and conditions (e.g. clause 2 (3) and clause 3 (6)). For LIVTEC, good cause also exists if
the client is in default of payment of the remuneration or a not insignificant part of the remuneration for two consecutive months or of an amount corresponding to at least two months’ remuneration for a period longer than two months;
in the case of domain registrations, the customer is proven to have committed a significant breach of the Uniform Domain Name Dispute Resolution Policy (UDRP);
if insolvency proceedings are applied for or opened against the customer’s assets or if the opening of such proceedings is rejected for lack of assets.
Any termination must be in writing to be effective. An e-mail is not sufficient for this purpose.
Following an extraordinary termination for which the customer is responsible, LIVTEC shall not be obliged to repay to the customer any fee agreed for the minimum contract period. This regulation applies accordingly to the fee owed for the respective extension period.
Compensation claims of the customer on the occasion of the termination of the contract are excluded.
10 Final provisions
Swiss law applies.
The place of performance is the registered office of LIVTEC.
The place of jurisdiction for all disputes arising from the contractual relationship shall be Zug, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or has no place of jurisdiction in Switzerland. LIVTEC may also bring an action at the customer’s place of jurisdiction.
There are no verbal ancillary agreements. Amendments or supplements must be made in writing.
A transfer of the rights and obligations arising from this contractual relationship by the customer is only permissible with the prior written consent of LIVTEC.
Should individual provisions of a contract concluded on the basis of these GTC or these General Terms and Conditions be invalid, the remaining General Terms and Conditions shall remain unaffected. In such a case, the parties are obliged to replace an invalid General Terms and Conditions with a valid one that comes as close as possible to the economic purpose of the invalid one.
We do our best, but cannot guarantee that the apps you use will be available permanently. We expressly reserve the right to block, deactivate or uninstall individual apps at any time. We will try to inform you about this in good time so that you can save your data. Data that you save in the app may possibly be lost in the process. You cannot claim any damage from us as a result of this.
If you use the Demo Product, we reserve the right to block, deactivate or uninstall it without notice if you misuse it. We reserve the right to deactivate or uninstall the free product after 3 months of non-use. You cannot claim any damages from us as a result of this.