Conditions d'utilisation

Between clients

- hereinafter referred to as customer -

and contractor

eyevip cloud AG
Weberstrasse 3
8004 Zurich
Switzerland

- in the following called eyevip cloud AG –

- jointly referred to as the Contracting Parties –

1. Scope of Application

1.1 These Terms of Use are valid from 20.05.2019 and replace all previous versions.

1.2 Together with the confirmed offer and any other contractual documents, these Terms of Use constitute the final agreement (hereinafter referred to as "agreement") between the customer and eyevip cloud AG. These Terms of Use are an integral part of all offers, order confirmations and invoices.

1.3 The following Terms of Use shall apply between the customer specified in the service agreement and eyevip cloud AG, unless otherwise provided for by law or unless the parties expressly agree otherwise in writing. Furthermore, by using the services of eyevip, customers or users agree to these Terms of Use.

1.4 The Privacy policy is an integral part of these Terms of Use.

2. General Content of the Agreement

2.1 These Terms of Use apply to the use of the software "eyevip" of eyevip cloud AG according to the current product description as "software as a service" (SaaS) or cloud offer. The software is operated by eyevip cloud AG as SaaS or Cloud solution. The customer is enabled to use the software stored and running on the servers of eyevip cloud AG or of a service provider commissioned by eyevip cloud AG via an internet connection for his own purposes during the term of this agreement and to store and process his data with their help in Switzerland.

2.2 These Terms of Use also apply to the use of the software "eyevip" of eyevip cloud AG "On Premise" on the infrastructure of the customer. The software is made available by eyevip cloud AG and is installed and operated on the infrastructure of the customer. eyevip cloud AG provides the software to the customer after the purchase of the license in the respectively agreed version and at the respectively agreed time. The customer provides the required infrastructure. The customer himself is responsible for the backup of the software and the data.

2.3 These Terms of Use shall apply exclusively. The customer's Terms of Use shall not apply. Counter-confirmations by the customer with reference to his own Terms and Conditions are expressly rejected.

2.4 Presentations, statements and comparison are only binding with their legally valid signature. In case of other work results, the binding force shall only be given if this is expressly confirmed in writing. Interim reports and preliminary work results may differ considerably from the final result and are not binding.

2.5 If individual employees are named in the agreement, eyevip cloud AG will make reasonable efforts to ensure that these named individuals are available to the customer for the expected period of time specified in the agreement to support the work of eyevip cloud AG. The eyevip cloud AG has the right to exchange individual employees. eyevip cloud AG may use suitable third parties for the provision of its services.

2.6 Deadlines shall be deemed to be general targets, unless they have been expressly agreed as binding assurances.

2.7 You hereby instruct eyevip cloud AG to process personal data of the persons concerned for the purpose of providing the service. eyevip cloud AG will not process the personal data of the data subjects for other purposes. The processing of personal data by eyevip cloud AG is carried out in the name of the customer. The customer is and remains the responsible person for the processing of personal data. Therefore, the customer is responsible for the compliance with the applicable data protection laws, in particular regarding the lawful transfer of personal data to eyevip cloud AG and/or its subcontractors and the lawful processing of personal data in general. For further questions or information on data protection, please go to https://eyevip.ch/de/datenschutz.php or https://eyevip.de/de/datenschutz.php.

2.8 The customer hereby acknowledges and guarantees that all personal data which the customer and/or any sub-processor uploads, imports, stores or retrieves from eyevip cloud AG for the provision of the service are exclusively data which the customer has obtained with valid and effective authorization as required by applicable law (e.g. explicit and informed consent) from the data subjects for the processing of such personal data. As far as personal data of the customer is concerned and/or personal data of data subjects and the customer is authorized to represent these persons, the customer hereby agrees on behalf of himself and each person or company he represents, that eyevip cloud AG and/or any sub-processor may process personal data for the purpose of providing the service.

2.9 The customer hereby agrees not to send or cause to be sent any e-mails to unsolicited addresses/recipients, including persons or companies who have indicated that e-mails are unwanted. The customer acknowledges and guarantees that all e-mail addresses, telephone numbers or other contact details (guests, customers, employees or third parties) used in connection with the service may be used specifically for the purpose of receiving correspondence from them. eyevip cloud AG is not responsible for the content of e-mails sent to guests, customers, employees or third parties through the use of the service. eyevip cloud AG offers reasonable efforts with regard to the delivery of e-mails when using the service. However, eyevip cloud AG does not guarantee the deliverability of the e-mails. The eyevip cloud AG is not responsible for actions of persons who receive e-mails, which are issued by using the service.

Do not use the service to send anything to the recipients of e-mails that:

   a) is unlawful, threatening, abusive, harassing, tortious, defamatory, libelous, fraudulent, invasive of another's privacy, torpedoing, obscene, vulgar, pornographic, abusive, profane, contains or presents nudity, contains or presents sexual activity or is otherwise inappropriate or illegal; or
   b) constitutes unauthorized or unsolicited advertising, junk or mass e-mail ("spamming") as defined by applicable law; or
   c) contains software viruses or any other computer code, files or programs designed or intended to interfere with, damage, restrict or impair the proper working of any software, hardware or telecommunications equipment or to gain unauthorized access to systems, data, passwords or other information from eyevip cloud AG or third parties; or
   d) Include in e-mails material that is not created by you, provided to you, or that infringes the rights of third parties (including text, photographs, graphics and other content); or
   e) impersonates any person or entity, including an employee or representative of eyervip AG; or
   f) contains identity documents, personal data or other sensitive information about individuals; or
   g) provides for uploading or transferring to purchased lists, rental lists or third party lists of any kind

2.10 eyevip does not accept spam. The white-listing ("keeping clean") of the eyevip e-mail servers, is a central and important product factor. Since the sending of spam can lead to interruptions or irregularities in our customer service, eyevip consequently acts as follows against customers who damage our reputation and give us white-listing work

   a) If we end up on a blacklist because of the emails we send, the customer has to pay the external fees as well as our internal expenses, which arise to get off the blacklist again.
   b) SPF Records must be set correctly, otherwise we can refuse to send the emails. Incorrectly set SPF Records can damage our reputation.

2.11 All users of the customer who work with the eyevip cloud AG service must follow the rules of conduct and guidelines for the permitted use as set forth in this section 2 ("General Content of the agreement"). If the customer violates this policy or any other provision of this agreement, eyevip cloud AG is entitled to suspend or terminate the customer's account immediately and without prior notice, which shall not affect the customer's obligations under this agreement.

3. Placing of Order

3.1 An order is accepted if

• the customer accepts an offer via the electronic order management software,
• a written order confirmation is available,
• a verbal order confirmation exists or can be clearly recognized from the circumstances the customer is willing to purchase the service or product in question
• or an offer is available and eyevip cloud AG, with knowledge and agreement of the customer, has started work.

3.2 In the case of outline offers, the order shall also be deemed to have been placed, if the further procedure is regulated in separate plans (e.g. project plans). The dates, working days or resources reserved in accordance with such plans are deemed to have been commissioned as part of the outline offer.

4. Cooperation and Obligations of the Customer

4.1 The customer shall support eyevip cloud AG in providing the contractual services to a reasonable extent.

4.2 The customer is responsible for the proper and regular backup of his data. This also applies to documents provided to eyevip cloud AG in the course of the execution of the contract.

4.3 For the use of the software the system requirements resulting from the product description or the order sheet must be fulfilled at the customer's site. The customer is responsible for this himself.

4.4 The customer shall keep the access data made available to him secret and shall ensure that any employees to whom access data are made available also do so. The services of eyevip cloud AG may not be made available to third parties, unless expressly agreed upon by the parties.

4.5 The customer undertakes not to entice away any employees of eyevip cloud AG in any form whatsoever. This prohibition of enticement is valid for the duration of the existing contractual relationship between eyevip cloud AG and the customer and until one year after its termination. In case of a violation of this non-solicitation clause, the customer is obliged to pay a contractual penalty in the amount of CHF 20'000. The payment of the contractual penalty does not release from the non-solicitation clause. We reserve the right to further damages.

5. Type and Scope of the service

5.1 eyevip cloud AG provides the software "eyevip" to the customer in the respective agreed version at the router exit of the data processing center, where the server with the software is located ("Delivery Point"). The software, the computing power required for the use and the required storage and data processing space are provided by eyevip cloud AG. eyevip cloud AG does not owe the establishment and maintenance of the data connection between the IT systems of the customer and the described transfer point.

5.2 The customer may not use the services in an abusive manner. Such use shall take place exclusively within the legal framework. eyevip cloud AG reserves the right to suspend or delete access in case of suspicion of misuse.

5.3 In connection with the use of the services eyevip cloud AG may send service announcements, administrative messages and other information. eyevip cloud AG may contact the customer via any channel.

5.4 The customer is obliged to keep passwords confidential. The user is responsible for activities in the user account. Users may not use the passwords used at eyevip again in applications of third parties.

5.5 eyevip cloud AG may add new functions to its software eyevip, remove them, suspend modules or discontinue them permanently.

6. Availability of the software

6.1 eyevip cloud AG points out to the customer that restrictions or impairments of the provided services may occur which are beyond the provider's control. This includes in particular actions of third parties not acting on behalf of the provider, technical conditions of the internet which cannot be influenced by the provider as well as force majeure. The hardware, software and technical infrastructure used by the customer can also have an influence on the services of the provider. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the provider, this has no effect on the contractual conformity of the services provided.

6.2 The customer is obliged to report functional failures, malfunctions or impairments of the software immediately and as precisely as possible to support(at)eyevip.ch.

7. Data Processing Rights, Data Protection

7.1 eyevip cloud AG complies with the legal data protection regulations (see "Data Protection" on our website).

7.2 The customer grants eyevip cloud AG for the purpose of the execution of the contract the right to reproduce the data to be stored by eyevip cloud AG for the customer, as far as this is necessary for the performance of the services owed under this contract. eyevip cloud AG is also entitled to keep the data in a failure system or separate failure data center in Switzerland. To eliminate failures, eyevip cloud AG is further entitled to make changes to the structure of the data or the data format.

7.3 eyevip cloud AG regularly backs up the data of the customer on the server for which eyevip cloud AG is responsible on an external backup server. The customer may, as far as technically possible, excerpt these data at any time for backup purposes and is obliged to do so at regular usual intervals. As far as this is not possible, eyevip cloud AG provides the data to the customer once a month as backup. These expenses are charged according to expenditure.

8. Support

8.1 A support case shall be deemed, if the software does not fulfill the contractual functions according to the product description. The type of error message depends on the website, as does the scope of support services.

8.2 If the customer reports a support case, he shall provide a description of the respective malfunction that is as detailed as possible in order to enable the most efficient troubleshooting.

8.3 The parties may enter into a separate agreement on the provision of support, maintenance and servicing services.

9. Fees and Expenses

9.1 In addition to the license claim, eyevip cloud AG is entitled to reimbursement of expenses incurred and third party fees. Travel time, with the exception of time spent travelling from a local residence to the normal workplace, will be included in the hours required for the provision of the services and invoiced.

9.2 Cost estimates are based on estimates of the extent of the necessary activities and are prepared on the basis of data provided by the customer. They are therefore not binding for the final calculation of the fee.

9.3 All prices are quoted exclusive of taxes.

9.4 License invoices and invoices for expenses have to be paid within 10 days to the account indicated by eyevip cloud AG. If payment is not received in due time, eyevip cloud AG has the right to immediately discontinue contractually assured services or to deviate from the service level. This right includes the blocking of online accesses. Furthermore in this case, the unilateral right of eyevip cloud AG exists to terminate the agreement without notice and extraordinary.

9.5 In case of a termination of the agreement the customer shall pay eyevip cloud AG for all services rendered, until the day of termination. In case of an extraordinary termination by the customer, the customer shall pay all additional costs incurred by eyevip cloud AG due to the early termination of the service.

9.6 Irrespective of the reason for the termination of the agreement, the customer shall pay all costs for the repatriation. eyevip cloud AG charges the prices defined in the agreement for services requested by the customer beyond the termination date.

10. Exchange of Information

10.1 The parties undertake to maintain secrecy about all confidential information, of which they gain knowledge on the occasion of or in connection with the receipt or provision of services within the scope of the execution of the contractual relationship. All data concerning facts, methods and knowledge which, at least in their concrete application within the scope of the execution of the contractual relationship, are not

1. generally accessible to the public, whereby this is not due to a violation of an obligation under this clause 10
2. acquired from a third party, without an obligation of confidentiality
3. created independently by the recipient of the confidential information or were known to him or her prior to receipt
4. generally known or can be easily identified by third parties with general knowledge.

10.2 Excepted from this, is the disclosure of confidential information for the necessary protection of legitimate own interests, provided that the respective third parties are subject to an equivalent obligation of secrecy.

10.3 eyevip cloud AG is further entitled to disclose confidential information to a third party, if this is necessary for the provision of the service. eyevip cloud AG may process the information coming to its knowledge, in particular also the personal data of the customers, IT-technically or have it processed by third parties. Thereby the information becomes also accessible for persons who perform system support and control functions within the processing process. eyevip cloud AG ensures that the respective persons are also subject to the obligation to maintain confidentiality.

10.4 eyevip cloud AG explicitly points out, that no sensitive personal data should be sent to it by the customer via unencrypted methods. In particular, but not conclusively, access or guest lists are valid for this.

10.5 The obligation of secrecy continues to exist beyond the termination of the contractual relationship. The above obligation does not prevent eyevip cloud AG from executing the same or similar orders for other customers, while maintaining confidentiality.

10.6 The parties may use electronic media such as telephone, fax, websites and e-mail for their communication in the course of the execution of the contractual relationship. During electronic transmission, data may be intercepted, destroyed, manipulated or otherwise adversely affected and may be lost for other reasons and may arrive late or incomplete. Each party is therefore responsible for taking reasonable precautions to ensure error-free transmission or receipt and to detect elements that are defective in content or technology. The customer acknowledges that absolute protection is not possible.

10.7 eyevip cloud AG as an auxiliary person is subject to professional secrecy according to art. 321 of the Swiss Criminal Code.

11. Property and Usage Rights

11.1 All industrial property rights such as intellectual property rights and license rights to the documents, products or other work results produced by eyevip cloud AG in the course of the execution of the contractual relationship as well as the know-how developed or used in the course of the contractual relationship, are exclusively entitled to eyevip cloud AG, irrespective of any cooperation between eyevip cloud AG and the customer.

11.2 eyevip cloud AG grants to the customer a non-exclusive and non-transferable right of use for the exclusive personal use for the duration of the contract of the documents, products and other work results, including the respective know-how, which have been handed over to the customer.

11.3 The customer shall not be entitled to reproduce, modify, distribute, sell or lease any part of the software. The eyevip software may neither be reverse engineered, nor may any attempt be made, to extract the source code.

11.4 The disclosure of documents, products and other work results or parts thereof as well as individual technical statements to third parties by the customer is only permitted with the express written consent of eyevip cloud AG.

11.5 The customer shall refrain from modifying the documents provided to him by eyevip cloud AG, in particular the binding reports. The same applies to products and other work results, as far as their purpose does not consist in further processing by the customer.

11.6 The permission to make reference to the existing contractual relationship between the parties, especially in the context of advertising or as a reference, is hereby granted in full. For this purpose, images of the customer's company logo may also be used on the Internet, in company presentations, brochures, advertisements, etc.

12. Warranty and Liability

12.1 eyevip cloud AG makes no express or implied warranties, representations or endorsements with respect to the website, the service or the content. eyevip cloud AG expressly disclaims all warranties of any kind, express or implied, statutory or otherwise, including but not limited to implied warranties of merchantability, suitability for a particular purpose, title and non-infringement, with respect to the website, the service, the content and any products or services provided or to be provided through the website.

12.2 eyevip cloud AG does not warrant that the functions contained on the website or the service will be uninterrupted, timely, secure or error-free or that defects on the website or the service will be corrected.

12.3 eyevip cloud AG does not warrant the results that may be obtained by using the service.

12.4 eyevip cloud AG does not warrant the accuracy or completeness of the content or the correction of errors in the content. The website, the service and the content are provided only "as is" and "as available".

12.5 Under no circumstances shall eyevip cloud AG be liable for damages of any kind, including but not limited to direct, incidental, consequential, special, exemplary or other indirect damages arising from

   a) the use or inability to use the website, the service or the content
   b) a transaction carried out through or enabled by the website
   c) any claims from errors, omissions or other inaccuracies in the Website, the service and/or the content
   d) the access or transfer of data by unauthorized persons
   e) the loss or damage of uploaded data (including but not limited to guest lists); or
   f) any other matter, relating to the website, the service or the content, even if eyevip cloud AG has been advised of the possibility of such damages.

12.6 If the customer is dissatisfied with the website, the service, the content or the Terms of Use, the sole and exclusive right is to discontinue the use of the website and/or the service.

12.7 Because applicable law may not allow the exclusion or limitation of liability to the extent set out above, some of the above limitations may not apply. In this case, the liability of eyevip cloud AG is limited and the warranty is excluded to the greatest extent permitted by applicable law.

13. Duration of the Agreement

13.1 The agreement shall apply from the start date specified in the agreement or, if no start date has been defined, from the date on which the agreement is signed by both parties.

13.2 Our subscriptions (licenses) are concluded either for one event or for a period of 12 months. Invoices are always issued in advance. Unless the customer cancels at least 30 days before the end of the subscription period (Private Cloud and/or On Premise customers min 90 days or according to separate contracts), the subscription is automatically renewed for another 12 months. The license for the execution of one event does not require a cancellation. After the event, eyevip will be switched off by us. The invoice is issued in advance.

13.3 If the customer violates any of the terms of the agreement, eyevip cloud AG may immediately suspend or discontinue the services.

13.4 Both parties reserve the right to extraordinary termination for good cause if the legal requirements are met. An important reason for eyevip cloud AG is especially given, if the customer is in default with the payment of a due remuneration for more than two months despite reminders. If the customer is responsible for the reason for termination, the customer shall be obliged to pay eyevip cloud AG the agreed remuneration minus the expenses saved by eyevip cloud AG until the date on which the contract would end at the earliest in case of an ordinary termination.

13.5 Declarations of termination must be in written form to be effective. Compliance with this form is a prerequisite for the effectiveness of the termination.

13.6 After termination of the contract, eyevip cloud AG has to return to the customer all documents handed over by the customer and still in possession of eyevip cloud AG, as well as data carriers, which are in connection with the present contract, and to hand over the data stored at eyevip to the customer or to delete them at the customer's option, as far as there is no obligation or right to retain them

14. General Information

14.1 With the exception of the customer's payment obligation for the services provided, neither party shall be responsible for any failure to perform any obligation under this agreement for reasons beyond its control.

14.2 If any provision of this agreement is invalid in whole or in part, such provision shall be excluded from this agreement. The enforceability of the remaining provisions of this agreement shall, however, remain unaffected.

14.3 eyevip cloud AG is entitled to provide services for other customers.

14.4 eyevip cloud AG may amend these Terms of Use at any time. You should therefore check these Terms of Use regularly.

14.5 Notices must be made in writing.

14.6 The agreement is subject to Swiss law.

14.7 Exclusively competent for all disputes arising out of this agreement is the court having jurisdiction for the place of business of eyevip cloud AG, unless another court has exclusive jurisdiction due to mandatory legal provisions.