AGB Digital

1. Definitions

“Ap Dialog” means AP Dialog AG. “Customer” means the contracting party who has entered into a contract with AP Dialog AG for the provision of services. “Provider” means AP Dialog AG. “Contract” means the agreement concluded between the Customer on the one hand and AP Dialog AG on the other. The Contract comprises the Contract Document, these General Terms and Conditions, the Service Specification for the services offered by AP Dialog AG, the Data Processing Agreement and any tender documents used in connection with the conclusion of the Contract Document. “Services” means the services to be provided by AP Dialog AG in accordance with the Contract. Translated with DeepL.com (free version)

2. Processing of personal data

The parties undertake to process personal data in accordance with the applicable data protection regulations, in particular the REVDSG and the relevant national data protection regulations.
Where the provision of services under the contract requires the Provider to process personal data on behalf of the Customer, the Provider, as the data processor, and the Customer, as the data controller, shall also enter into a data processing agreement as an integral part of the contract.

3. Conclusion of the contract – subject to a favourable credit check

AP Dialog AG is entitled to carry out a credit check on the customer once the contract has been signed.
The contract is concluded subject to AP Dialog AG deeming this credit check to be satisfactory.
If the customer’s creditworthiness is deemed insufficient, AP Dialog AG is entitled to terminate the contract.
AP Dialog AG shall not be liable to the customer for any termination of the contract on these grounds.

4. Enquiries

All enquiries regarding the contract should be addressed to the provider’s customer service centre at info@apdialog.ch.

5. Services

The services to be provided by the supplier and the exact scope of those services are set out in the service specification and any other relevant contractual documents.

6. Intellectual Property

6.1 Rights of the Provider

The conclusion or performance of the contract does not result in the transfer of any copyright or other intellectual property rights to the customer. All sketches, drafts, concepts and other materials produced in connection with the contract remain the property of the provider, unless expressly agreed otherwise in writing. Unless otherwise stipulated in the contract, the customer is not entitled, without the provider’s prior written consent, to modify the service in whole or in part, to transfer it, to migrate it to other technical systems or to copy it for other purposes. The Provider reserves the right to continuously develop and adapt the services and systems available on the servers. Such changes must not unreasonably impair the Customer’s contractually agreed solution in the long term.

6.2 Prohibition of reverse engineering

The customer is not authorised to carry out reverse engineering, to decompile or disassemble the software used by the provider, or to attempt to derive or copy the source code therefrom.
The customer must not remove any trademarks, logos, copyright notices, licence notices or other markings belonging to the provider or third parties.
In particular, the copying, distribution, sale, hire, licensing, transfer or assignment of any part of the provider’s services is not permitted. This includes, in particular, software, informational texts, software documentation, design, user interfaces, templates, as well as photographs, graphics, audio content, videos, functionalities, files and documents made available via the Provider’s networks.

6.3 The Customer’s right of use

The customer is granted only a simple, non-exclusive and non-transferable right of use to the content and rights developed or provided in connection with the services, and this applies only to the extent agreed in the contract, for the agreed number of users and only for the duration of the contract.
This right of use is subject to the customer’s full compliance with the contract.
This right of use does not extend to materials, content or licences obtained from or provided by third parties or subcontractors. These include, in particular, texts, printed materials, animations, image licences, fonts, music, videos or other third-party content. These are governed exclusively by the terms and conditions of the relevant third-party provider or the relevant product licence.

6.4 Third-party claims

If a third party asserts claims that the service infringes their copyright or other intellectual property rights, and this is due to circumstances for which the provider is responsible, the provider may, at its discretion and in consultation with the customer, either
a) secure a right for the customer to continue using the service, or
b) replace the affected parts or amend them in such a way that the alleged infringement is eliminated.

7. Confidentiality

Information relating to the parties and their business activities which comes to the knowledge of a party in connection with or as a result of the contract must be treated as confidential. Such information must not be disclosed to third parties or used to the detriment of the other party without the consent of the other party.
This obligation does not apply to information in respect of which there is no legitimate interest in maintaining confidentiality, in particular because it is common knowledge or is generally accessible by other means.
The confidentiality obligation shall remain in force even after the termination of the contract.

8. The customer’s obligations to cooperate

The customer is obliged to fulfil their contractual obligations to cooperate properly, in full and in a timely manner.
In particular, the customer must do everything that can reasonably be expected of them to ensure that the services can be provided as agreed and without unnecessary delay.
The customer is responsible for obtaining, in good time, all content, materials, approvals and rights required for the provision of the service and for making them available to the provider.
The customer must adhere to the specified deadlines for the submission of documents, materials or approvals.
If the customer fails to fulfil their obligations to cooperate, the provider’s entitlement to the agreed fee remains unaffected.

9. Use of subcontractors

The Provider is entitled to engage subcontractors to fulfil the contract.
The Provider shall be liable for the services provided by its subcontractors in the same way as for its own services, to the extent permitted by law.

10. Prices and Terms of Payment

10.1 Prices

The applicable prices are set out in the contract document and/or the tender documents.
Additional services and the fees for these must be agreed separately.
Unless expressly stated otherwise, all prices are exclusive of VAT and in CHF. Prices may be adjusted annually in line with changes in the consumer price index.
The supplier also reserves the right to adjust prices in writing, subject to 30 days’ notice. The price change shall take effect from the next invoice date.
In the event of an increase of more than 25 per cent, the customer is entitled to terminate the relevant contract in writing within 30 days of being notified of the price change.

10.2 Terms of Payment

The customer is responsible for ensuring that the email address they have provided is correct, up to date and capable of receiving messages at all times.
The provider is entitled to charge a reasonable invoicing or administration fee, provided this is stipulated in the quotation or contract document.
Invoices are due for payment without deduction within 15 days of the invoice date.
In the event of late payment, the provider is entitled to claim statutory interest on arrears, reminder fees and any debt collection costs.
The customer may only set off claims against the provider’s claims if such counter-claims have been legally established or expressly recognised by the provider.

11. Breach of Contract by the Provider

11.1 Breach of contract

A breach of contract occurs if the supplier fails to fulfil its contractual obligations and this is not attributable to circumstances for which the customer is responsible, or to force majeure.

11.2 Notification and Notice of Defects

If it becomes apparent that a service cannot be provided as agreed, the provider must inform the customer of this within a reasonable period. Where possible, the notification should state the cause, the anticipated consequences and the expected date on which the service will be provided in accordance with the contract.
If the customer considers that there has been a breach of contract, they must give notice of this in writing and without undue delay upon becoming aware of it or upon the date on which they should have become aware of it had they exercised due care.

11.3 Improvement

The supplier is entitled to remedy any breach of contract itself within a reasonable period. The breach must, in principle, be remedied within 60 days of receipt of the written notice of complaint, provided that this is possible and reasonable given the nature of the defect.

11.4 Price reduction

If the breach of contract is not remedied within 60 days, the customer is entitled to demand a reasonable reduction in price.

11.5 Compensation

The customer may claim compensation for direct financial loss caused by a breach of contract for which the provider is responsible.
Liability for loss of profit, indirect damage, consequential damage, pure financial loss, data loss, production downtime, loss of turnover or damage to third parties is excluded to the extent permitted by law.
The services are not designed for the operation, maintenance or security of business-critical systems or custom-developed specialist software, unless this has been expressly agreed in writing. The Provider shall not be liable for any damage resulting therefrom.
Neither party shall be liable for the non-performance of contractual obligations if this is due to circumstances beyond the reasonable control of the respective party, which were unforeseeable at the time the contract was concluded and the consequences of which could not be prevented or overcome even with the exercise of reasonable care. These include, in particular, changes in legislation, changes in regulatory practice, individual regulatory acts or orders by third parties that impose restrictions on data or systems.
The Provider’s liability – except in the case of personal injury, gross negligence or wilful misconduct – is limited to 25 per cent of the original contract value excluding VAT, less any costs that were passed on directly to third parties.

11.6 Withdrawal

The customer is only entitled to withdraw from the contract in the event of a material breach of contract.
A breach of contract that is remedied within 60 days of receipt of the written notice of complaint shall not be deemed material.

12. Breach of contract by the customer

If the customer breaches the contract, the provider is entitled, following a written reminder, to suspend services in whole or in part until the breach has been remedied.
In particular, grounds for suspension exist if

1. a) the customer is more than 30 days in arrears with payments,
   b) the customer provides websites, content or software that cause errors or disruptions in the provider’s systems or services,
   c) unlawful content is published on the customer’s websites and this is not removed or amended within a reasonable period set by the provider, or
   d) the customer infringes the intellectual property rights of the provider or third parties.

Such a decision does not entitle the customer to a refund of fees that have already been charged.
The provider is entitled to charge a reasonable reactivation fee for the reinstatement of the services; unless otherwise agreed, this fee amounts to CHF 250,00.
In the event of a material breach of contract, the provider is entitled to terminate the contract with immediate effect on grounds of good cause. A delay in payment of more than 30 days shall, in any event, be deemed a material breach of contract.
The supplier may also claim damages for the customer’s breach of contract.

13. Force Majeure

The supplier shall not be deemed to be in breach of contract insofar as performance of the contract is prevented by an extraordinary and unavoidable event which is beyond its control and the consequences of which could not have been avoided even with the exercise of reasonable care.
Circumstances of force majeure include, in particular, war, mobilisation, natural disasters, strikes, lockouts, fire, water damage, trade restrictions and large-scale virus or cyber-attacks.
For the duration of such an event, the Provider’s obligations to provide services shall be suspended.
If the hindrance lasts for more than 60 days, both parties are entitled to terminate the contract in respect of the part not yet fulfilled. In this case, the customer is entitled to a refund of any fees paid in advance for the period of service not yet utilised, with effect from the date on which the event of force majeure occurred.

14. Term and Termination

The term and notice period are agreed in accordance with AP Dialog’s terms of service.

In the event of insolvency, court-supervised reorganisation proceedings, suspension of payments or a comparable material deterioration in the customer’s financial circumstances, the provider is entitled to terminate the contract in writing with 14 days’ notice.

15. Transfer of the contract

The Provider is entitled to assign the contract, in whole or in part, to an affiliated company or a third party. The Customer must be notified of this in writing.
The Customer is not entitled to assign any rights or obligations arising from the contract to third parties without the Provider’s prior written consent.

16. Applicable law and place of jurisdiction

The contract shall be governed exclusively by Swiss law, to the exclusion of the conflict-of-laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods.
The parties undertake to resolve any disputes by mutual agreement wherever possible.
If an amicable solution cannot be reached, Baden is agreed as the exclusive place of jurisdiction, insofar as this is permitted by law.