1. Scope of Application and Conclusion of Contract
2. Services and Rights of Cleanmail
2.1 Cleanmail provides e-mail services to the customer on servers connected to the Internet (hereinafter referred to as service). Within the scope of its operational resources, Cleanmail strives to provide the services around the clock without interruption or disruption. If possible, the customer will be informed in time about foreseeable business interruptions, such as maintenance work, troubleshooting, expansion of services, etc. Cleanmail can call in third parties to provide services.
2.2 Cleanmail can adjust the service at any time for factual reasons. Changes to the service come into effect when the customer is informed by e-mail or by any other suitable means. By using the service the customer agrees to the current version. For price increases clause 4. below applies.
2.3 If Cleanmail is notified by a competent authority of the illegal use of the service, if such use is obvious or if there is a substantial suspicion of such use, in particular based on the notification of a third party, Cleanmail may warn the customer, encourage the customer to use the service in accordance with the contract, suspend the service for an indefinite period of time and/or terminate the contract without notice and without compensation. Cleanmail reserves the right to take further action in case of illegal use of the service or suspected illegal use. Cleanmail can take the same measures if the customer disregards the terms of the contract. In any case, Cleanmail reserves the right to claim damages in case of violation of the terms and conditions.
2.4 Cleanmail will take measures to remedy malfunctions and defective services, unless circumstances beyond Cleanmail’s control prevent their remedy.
2.5 The customer bears the costs for limiting and remedying faults by Cleanmail, if the customer has requested the investigation and the cause of the fault is due to defects or errors in the handling of the equipment used by the customer. Cleanmail does not cover the costs for support by third parties.
3. Responsibility and Duties of the Customer
3.1 The customer undertakes to use the service according to Cleanmail’s instructions and is liable for any damage caused to Cleanmail by improper use.
3.2 The customer can use the service according to his own purposes. Cleanmail has no control over the customer’s files. However, the customer is obliged to Cleanmail to follow generally accepted rules of conduct. Cleanmail reserves the right to take appropriate measures if there is a concrete indication of a violation of the generally accepted rules of conduct, if technically possible and reasonable. The customer is responsible for the content of the information (language, images, sounds, computer programs, databases, audio/video files, etc.) that he and the third parties communicating with him have transmitted or processed or distributed by Cleanmail with his consent. The customer is also responsible for references (especially links) to such information.
3.3 Illegal information, especially
- Pornographic, sexually oriented, immoral and erotic writings, sound or image recordings and representations within the meaning of Article 197 of the Swiss Penal Code (StGB)
- Discrimination and right-wing extremist writings, sound and image recordings and representations within the meaning of Art. 261 StGB
- Depictions of violence within the meaning of Art. 135 StGB
- Incitement to violence within the meaning of Article 259 StGB
- infringement of copyright, related rights, trademark rights or other intellectual property rights
- Illegal files (MP3, hacker tools, cracks, etc.)
- Incitement or instruction to criminal behaviour
- Violation of privacy and defamation
- Unauthorized gambling in the sense of the Swiss Lottery Law as well as harassment is prohibited.
3.4 Legal regulations of Switzerland and abroad must be observed when using the service.
3.5 Cleanmail reserves the right to block the service for a client if the client’s user behavior in any way affects the operational behavior of the service.
3.6 Commercial e-mail advertising to a reasonable extent to an e-mail address received from the owner is permitted. However, Cleanmail does not in any way accept the sending of unsolicited bulk e-mail or anonymous e-mail via Cleanmail’s servers to unknown e-mail addresses not received by owners.
Such behaviour is considered misuse and will result in the sanctions mentioned above (clause 2.3) or the customer has the opportunity to provide Cleanmail with written proof that he is in possession of written permission to send e-mail to the respective e-mail address owners.
3.7 The Customer shall ensure that the user names and passwords are not made known to other persons and that information about them is not accessible. Passwords must be chosen appropriately and changed at irregular intervals. The customer shall protect his systems, devices and data (including programs) against unauthorized access and manipulation by third parties. He shall take measures against unauthorised access to third-party systems.
3.8 Cleanmail is entitled to take measures to prevent or eliminate malfunctions and to oblige the customer to take measures at the customer’s site. If a malfunction cannot be remedied in any other way, the customer shall modify the system at his expense or cease operation.
3.9 The customer shall pay the fee applicable for the service.
4. Prices, Invoicing and Payment Terms
4.1 The fees for the service are based on Cleanmail’s current price list. The payment obligation begins with the commissioning, i.e. with the activation of the service. The date of the welcome e-mail is valid.
4.2 Cleanmail invoices the customer for 12 months in advance at the end of each period. The invoice is payable until the expiry date stated on the invoice form.
4.3 In case of late payment Cleanmail can stop the service and/or terminate the contract without notice and without compensation.
4.4 Cleanmail reserves the right to change prices at any time. Cleanmail will announce any price changes in time so that the customer can cancel the contract within the cancellation period. Without written notice within this period the changes are considered as accepted by the customer.
4.5 The customer cannot offset claims against Cleanmail against debts to Cleanmail.
5 Liability and Warranty
5.1 Liability and warranty of Cleanmail
5.1.A For claims or damages due to loss of data, delays, etc., incurred by the customer or his customers due to the provision or transmission of his files or other information on the Internet or due to the impossibility of accessing the Internet or sending and receiving information, Cleanmail assumes no liability.
5.1.B Cleanmail is not liable for abuse and damage by third parties, for security deficiencies of the telecommunication, cable and satellite network and the Internet and for costs of repair and support services. This includes but is not limited to
- Damage from computer viruses
- Loss, unauthorised modification or unauthorised sending of e-mails
- Loss, unauthorised modification or unauthorised sending of SMS
- Loss, unauthorised modification or unauthorised sending of fax messages
5.1.C Cleanmail accepts no liability for interruptions in operation for the purpose of troubleshooting, maintenance, changing the infrastructure, introducing new technologies or similar purposes.
5.1.D In case of breach of contract, which is not already explicitly excluded from liability, the liability is limited to damages caused by Cleanmail intentionally or grossly negligent. In any case, Cleanmail’s liability is limited to the direct damage or up to the equivalent value of the service received. In no case Cleanmail is liable for consequential damages and lost profits.
5.1.E Cleanmail guarantees 99% trouble-free operation of the agreed service. Excluded from this guarantee are cases where force majeure prevents or impairs the provision of the service, as well as in the case of the above mentioned clauses 5.1.A, 5.1.B and 5.1.C.
5.2 Liability and warranty of the customer
5.2.A The customer is liable for the use of the service and the software pre-installed on it at his own risk.
5.2.B The customer is liable to Cleanmail for all damages resulting from the breach of his contractual responsibilities and obligations.
5.2.C Should Cleanmail, a manager or employee of Cleanmail be prosecuted and/or held responsible for the illegality of the information provided by the customer under criminal, civil or administrative law, the customer is liable for the damage. Satisfaction claims remain reserved.
6. Data Security, Data Protection and Data Disclosure
6.1 The customer is responsible for backing up the transmitted data himself, even if these data are buffered daily on Cleanmail’s mail server.
6.2 When processing personal data Cleanmail complies with the Swiss Data Protection Act. Only data that is necessary to achieve and maintain a high level of service, for technical operational safety and for invoicing is stored and evaluated.
6.3 Cleanmail will not sell or make available the customer’s data to third parties. However, Cleanmail reserves the right to disclose the data and identity of the customer at the request of third parties, especially for cases according to 3.2, 3.3, 3.4, 3.6 – and for collection purposes.
6.4 Cleanmail endeavours to take the economically reasonable, technically possible and proportionate measures to secure the service. When using the Internet, the following data protection risks in particular exist for customers: Unencrypted e-mails can be read, changed, suppressed or delayed by unauthorized persons. Senders can be falsified. Postings in newsgroups, forums and chats can be forged, falsified and evaluated by third parties. Under certain circumstances, third parties may monitor Internet traffic on the World Wide Web (WWW) and obtain user names and passwords. Data encryption improves the confidentiality and reliability of information.
6.5 In all business contacts with Cleanmail the customer is obliged to provide truthful information.
6.6 The customer agrees that his personal information provided to Cleanmail can be used by Cleanmail for marketing purposes for Cleanmail services or products and that Cleanmail can draw the customer’s attention to interesting offers. The personal information will be kept confidential.
7.1 The parties shall treat as confidential all information which is neither generally known nor generally accessible. In case of doubt, information shall be treated confidentially. This duty of confidentiality exists prior to the conclusion of the contract and continues beyond the termination of the contract.
8 Duration, Extension and Termination of the Contract
8.1 The contract period is generally 12 months. The contract between Cleanmail and the customer comes into force immediately after receipt of the customer’s online order by Cleanmail and can be terminated by either party in writing with 30 days’ notice to the end of the contract period.
8.2 The contract is concluded for the chosen duration. The contract is automatically renewed for another 12 months if the customer or Cleanmail does not terminate the contract in due time.
8.3 If the contract period has not yet expired at the time of termination by the customer, the customer owes Cleanmail the outstanding fees as well as compensation for all additional costs. A refund pro rata temporis is excluded.
8.4 If Cleanmail terminates the contract without notice because the customer violates contractual provisions or misuses the services for illegal purposes, the customer shall owe Cleanmail the outstanding fees and compensation for all additional costs.
8.5 Cleanmail can terminate the contract with immediate effect if proceedings for bankruptcy or insolvency have been initiated against the customer.
8.6 Unless otherwise agreed in other parts of the contract, Cleanmail is entitled to delete the stored data of the customer or his customers upon termination of the contract.
9. Further Provisions
9.1 Changes and additions to this contract are only valid for the customer in writing. Cleanmail can change the terms and conditions at any time. It is the responsibility of the customer to inform him-/herself about changes by regular consultation of the General Terms and Conditions. The current versions are always available on the Cleanmail website, indicating the date of validity. If the customer does not accept the changes, he has the possibility to cancel the contract within the cancellation period. Without a written notice of termination within this period, the changes will be considered as accepted by the customer. However, the previous general terms and conditions are still valid until the end of the current fixed contract period.
9.2 Rights and obligations under the contract may only be transferred to third parties with the written consent of the other party. Excluded from this provision is the transfer of the Cleanmail contract to a legal successor or affiliated company.
9.3 Swiss law is applicable to the contract.
9.4 Exclusive place of jurisdiction is Winterthur, ZH.
Valid from 01.01.2004 (editorial change 01.02.2017: name change from Apexis AG to Cleanmail AG).
This is a translation of the german language edition of the General Terms and Conditions. In case of doubt, the german language edition of the same version of the General Terms and Conditions prevails.