General Terms and Conditions.

1.1 These General Terms and Conditions (hereinafter: GTC) apply to all deliveries and services provided by Cyberlink AG (hereinafter: Cyberlink) to the customer, provided that they have been made generally known to the customer before or at the time of conclusion of the contract and that no Master Service Agreement exists between the parties.

1.2 These GTC and any revised versions thereof are made known in particular by being published on Cyberlink’s website (www.cyberlink.ch), by being printed in its catalogs/documentation, and by being included with its quotations, order confirmations, delivery notes, and invoices.

1.3 These GTC govern the contractual relationship between Cyberlink and the customer and are deemed an integral part of the respective individual contract (cf. Section 2.1). Revised versions shall prevail over previous versions as soon as they have been made known to the customer.

1.4 Provisions of the individual contract shall prevail over those of these GTC in the event of any conflict. If these GTC conflict with the customer’s general terms and conditions, the present GTC shall prevail over those of the customer, even if this has not been expressly agreed or determined.

2.1 The individual contract between the customer and Cyberlink is concluded as follows: The order form submitted by the customer in a form that allows proof by text, or online, constitutes a binding offer. Cyberlink is entitled to accept this offer within 10 days by sending an order confirmation in a form that allows proof by text (e.g. email), or by commencing performance of the ordered contractual service within this period. The individual contract is formed upon receipt of the order confirmation by the customer or upon Cyberlink commencing performance of the contractual service.

2.2 Cyberlink determines the date of performance or the start of its contractual service. The customer acknowledges that the date of performance or the start of the contractual service may be delayed for organizational or technical reasons. The customer may not derive any rights or claims against Cyberlink from such delays under any legal basis.

2.3 Continuous obligations that are the subject of the individual contract are deemed to be concluded for an indefinite period.

2.4 Either party may terminate an ongoing continuous obligation by giving 30 days’ notice to the end of a calendar month (for a monthly subscription) or to the end of a contract year (for an annual subscription), but not earlier than the end of the minimum contract term agreed between the parties in the individual contract. Cyberlink shall confirm the customer’s termination.

2.5 For good cause, Cyberlink may terminate a continuous obligation at any time with immediate effect. Good cause exists in particular if the products and services provided by Cyberlink, or third-party services obtained through them, are obtained or used unlawfully or for improper purposes, made accessible to or passed on to unauthorized third parties, or if Cyberlink’s terms of use or those of the relevant third party are violated.

3.1 Cyberlink provides the contractual services agreed in the individual contract.

3.2 Any hardware and software made available to the customer by Cyberlink for the use of the contractual services remains the sole property of Cyberlink. The customer does not acquire any rights of disposal or any intellectual property or other protective rights thereto.

3.3 The products and services that are the subject of the contract are generally available to the customer for use 24 hours a day, seven days a week. In particular, technical disruptions that may impair the contractual services are reserved. In such cases, Cyberlink reserves the right to temporarily interrupt or suspend one or more services and thus its contractual services, taking reasonable account of the customer’s interests and, where possible, informing the customer in advance of the impairment. Planned service interruptions will be communicated to the customer in advance where possible. As a rule, interruptions take place during Cyberlink’s service window. Subject to mandatory statutory provisions, the customer shall not be entitled to any legal remedies or claims of any kind arising from an interruption of the contractual services by Cyberlink, in particular no reduction of Cyberlink’s remuneration.

3.4 Cyberlink will support the customer in the use of the contractual services to the best of its ability. Any such efforts by Cyberlink shall be invoiced to the customer at the current hourly rates. The same applies to any third-party costs incurred in this context (e.g. network providers).

3.5 Within the support hours agreed in the individual contract, Cyberlink undertakes to take appropriate and reasonable measures at a Cyberlink operating site to remedy disruptions and malfunctions of the contractual services. Unless otherwise agreed in the individual contract, the standard support hours are weekdays, Monday to Friday, 08:00–18:00, excluding federal and cantonal public holidays.

3.6 Cyberlink may engage auxiliary persons and third parties, or the employees of such third parties, to fulfill its obligations.

4.1 Only the customer named in the order form, their employees, and any third parties engaged in the course of the customer’s business activities are entitled to obtain Cyberlink services, and only insofar as the use of Cyberlink services is directly related to the performance of their duties toward the customer (subject to Section 4.2).

4.2 Only wholesale services may be resold by the customer. Any use of Cyberlink services for third parties, or making such services accessible to third parties, is prohibited unless expressly permitted under the contract.

4.3 The customer undertakes to ensure that its employees and customers also comply with the obligations arising from the contract. This provision also applies to third parties engaged by the customer.

4.4 The customer acknowledges that personal data relating to the customer, its employees, and third parties commissioned by the customer, which is made accessible to Cyberlink in the course of the contractual relationship, may be subject to data protection regulations. When handling data, Cyberlink complies with applicable legislation. The customer agrees that such data may be processed by Cyberlink for the purpose of fulfilling the contract and, for this purpose, may also be disclosed to third parties such as manufacturers, suppliers, or holders of intellectual property rights, in Switzerland or abroad. In particular, Cyberlink may disclose customer data to third parties if a contractual service is provided jointly with third parties, or if the customer obtains third-party services under the contracts and the disclosure of data is related to the provision of such services or is necessary for debt collection. The customer also consents to the transfer of data abroad insofar as Cyberlink deems this necessary.

4.5 During the support hours agreed in these GTC or in the individual contract, and where the maintenance of service quality so requires, the customer shall grant Cyberlink access to the technical systems provided by Cyberlink or used for the utilization of Cyberlink services, as well as to other systems necessary for the availability of Cyberlink services. In doing so, the customer shall ensure that all required cooperation obligations are provided to Cyberlink in a timely manner, to the necessary extent, and free of charge. These cooperation obligations constitute essential obligations of the customer. If the customer fails to properly comply with the obligations set out in this section, the customer shall bear any resulting costs due to delays, additional expenses, etc.

4.6 It is the responsibility of the customer to protect the IT systems and devices under its control that are used for Cyberlink services, as well as the data used therein or accessible through Cyberlink services, including program data, against unauthorized access and manipulation.

5.1 The obligation to pay begins upon commissioning. If the customer fails to make payment on time, Cyberlink may suspend the provision of the contractual services. After the payment deadline has expired without being met, Cyberlink is also entitled to repossess its contractual services at the customer’s expense. In the event of repossession, the customer shall grant Cyberlink access at all times. Repossession of the contractual services does not constitute withdrawal from the relevant contract unless expressly declared by Cyberlink.

5.2 The remuneration for the services provided by Cyberlink is governed by Cyberlink’s respective current price lists. In the event of changed and documented production costs, Cyberlink may adjust prices by up to a maximum of 20% during the ongoing contract term, subject to a notice period of 30 days to the end of a month.

5.3 Changes to the agreed conditions or incorrect or incomplete cooperation by the customer may result in additional efforts by Cyberlink, which shall be charged to the customer.

5.4 Unless otherwise agreed, remuneration for Cyberlink’s contractual services shall be invoiced to the customer quarterly in advance. Partial calendar months shall be invoiced in full. Payment is due net within 30 days from the invoice date (due date). If the customer does not raise an objection to the invoice with Cyberlink within 10 days of receipt, the invoice shall be deemed accepted. The customer shall use the bank details stated on the invoice for payment.

5.5 Cyberlink is entitled to invoice the customer, in addition to the agreed price, for any taxes, duties, and fees levied on its services and deliveries, in particular value-added tax (VAT).

6.1 Legal warranty and third-party intellectual property rights.

6.1.1 If the customer provides its own services, it alone shall be liable for ensuring that no third-party rights are infringed.

6.1.2 Cyberlink does not warrant or guarantee the use of its contractual services abroad. To the extent permitted by law, legal warranty is excluded for claims arising from any use of software abroad and/or leading to claims being asserted before foreign courts.

6.1.3 Outside the customer’s own services and the use of the contractual services abroad, Cyberlink warrants that, in performing the contractual services, it will not intentionally or through gross negligence infringe third-party intellectual property rights. Accordingly, Cyberlink shall only be liable to the customer for intentional or grossly negligent breaches of its corresponding duty of care. Cyberlink shall also be released from the above obligations if an intellectual property claim is based on the fact that the contractual services were modified by the customer or by third parties not commissioned by Cyberlink, or that they were used under conditions other than the specified intended use.

6.1.4 In the event of an infringement of third-party intellectual property rights as a result of the performance of the contractual services, the customer shall have no claims against Cyberlink beyond those set out in this Section 6.1. Any other or further claims are excluded to the extent permitted by law.

6.1.5 The customer shall indemnify Cyberlink against any claims asserted by third parties or authorities that are based on the customer’s data and content or on operating resources provided by the customer, and shall ensure an appropriate defense against such claims.

6.2 Warranty for defects.

6.2.1 Cyberlink provides the services specified in the individual contract. A specific result is only owed if expressly stipulated in the individual contract. Cyberlink provides the services in accordance with the current state of the art. In particular, and without limitation, Cyberlink does not warrant:

• that its contractual services, or the systems and infrastructures supported by them, can be used uninterruptedly and without errors in all desired combinations;
• any loss or limitation of the scope of use of the contractual services resulting, in particular but not exclusively, from natural wear and tear, chance, force majeure, improper handling, improper intervention or manipulation by the customer or third parties, effects of third-party products or infrastructure, excessive use, unsuitable operating resources, insufficient specifications (e.g. with regard to functionality, computing power, security, availability, or scalability), extreme environmental influences, third-party interference, malfunction of the infrastructure used by the customer, or other events or circumstances whose causes lie within the customer’s sphere of control;
• any loss or limitation of the scope of use of the contractual services as a result of technical adaptations (upgrades, updates, etc.) to the underlying hardware and software (e.g. to increase data security);
• error-free and defect-free use of the contractual services abroad.

6.2.2 If a warranty or liability case exists, Cyberlink shall, at its discretion, exclusively provide either rectification or free replacement of the defective contractual service or parts thereof. Cyberlink’s effort for rectification or replacement shall in any case be limited to the respective current value of the entire contractual service originally provided.

6.2.3 Warranty and liability claims must be asserted in court within 12 months, failing which they shall in any case be forfeited. The warranty period begins in all cases upon delivery or performance of the contractual services, or, in the case of continuing obligations, upon the occurrence of the defect. For replaced or rectified contractual services, the warranty period shall begin anew; however, it shall in any case be limited to a maximum of three months (forfeiture period) after expiry of the original warranty period.

6.3 Cyberlink excludes any liability for damages resulting from the customer’s failure to fulfill its contractual obligations (in particular from the obligation to properly and timely perform cooperation duties).

6.4 The warranty and liability exclusions under these GTC do not apply to breaches of contract resulting in personal injury, nor to unlawful intent or gross negligence on the part of Cyberlink; however, they do apply to gross negligence and intent on the part of its auxiliary persons, both for contractual and non-contractual vicarious liability. The direct liability of auxiliary persons toward the customer is also excluded to the extent permitted by law.

6.5 All cases of breach of contract and their consequences, as well as all claims of the customer against Cyberlink arising from or in connection with this contract, regardless of the legal basis on which they are asserted, including tort, are conclusively regulated in these GTC and the contracts. In particular, any claims of the customer not expressly mentioned therein are excluded.

7.1 The Customer may be held responsible and/or liable for all damages incurred by Cyberlink or affiliated third parties as a result of the Customer’s contractual or unlawful use of Cyberlink’s services.

7.2 If, as a result of and/or in connection with Cyberlink’s contractual services, the Customer also makes use of products and services of third parties, the Customer is responsible for complying with the terms of use of such third-party products and services. The Customer shall indemnify and hold Cyberlink harmless from any claims by third parties upon first demand.

7.3 The Customer undertakes, with regard to the data and information exchange initiated by the Customer, to comply with the applicable statutory provisions (e.g. data protection, telecommunications law), to respect third-party protective rights, and shall be liable for any violation thereof.

8.1 Amendments or supplements to the individual contract must be made in a form that allows proof in text (e.g. e-mail). Cyberlink expressly reserves the right to amend the General Terms and Conditions at any time.

8.2 The Customer may assign claims against Cyberlink to third parties only with Cyberlink’s prior written consent.

8.3 The set-off of claims by the Customer is excluded.

8.4 The invalidity or unenforceability of individual provisions of the individual contract and/or these GTC shall not affect the validity of the contract/the GTC as a whole. Any invalid or unenforceable provision shall be replaced by a provision that comes closest to the intent, purpose and economic effect of the invalid provision.

8.5 The Parties undertake to treat as strictly confidential all information not generally known which they obtain from the other Party or about its customers and business relationships in connection with the performance of their services under the contracts, unless the other Party expressly permits otherwise. Cyberlink is, however, entitled to use the Customer’s name and identifiers as well as Cyberlink’s contractual services for reference purposes.

8.6 The place of jurisdiction for all claims arising out of the business relationship and all other legal relationships between Cyberlink and the Customer shall be Zurich. Cyberlink is also entitled to bring an action against the Customer at the Customer’s place of domicile or registered office. The individual contract and these GTC shall be governed by substantive Swiss law, to the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG).

Edition: December 2012.

The Internet subscriptions are intended for normal personal use. If the use deviates significantly from customary usage or if there are indications that the Internet connection is being used excessively, for example for the commercial provision of services to multiple end customers such as website hosting and other services (e.g. download portals, etc.) or for distributing the total bandwidth among multiple end customers, Cyberlink reserves the right at any time to restrict, suspend (temporarily or permanently) the provision of services or to take other appropriate measures, such as subsequently charging for excessive data volume.

When registering country-code domain names as well as generic TLDs (.com, .net, .org, etc.), the Customer shall comply with the standards and regulations applicable in each case. This applies in particular to the Uniform Domain Name Dispute Resolution Policy (UDRP) of ICANN applicable to generic TLDs.