General Terms and Conditions of Business
These conditions apply to all services from the moment 4-check AG grants the customer access to these services. 4-check AG reserves the right to change these conditions at any time. The amended terms and conditions shall become effective upon posting on the Website. 4-check AG will make all necessary efforts to send the changed conditions to the customer by e-mail or to inform him on the website. It is likely that conditions will change over time. The customer must ensure that he has read and understood the latest version of the conditions published on the website. By registering to use the Services, the Customer declares that he has read and understood these Terms.
These conditions were last amended on 03 July 2017.
CONTRACT FOR “SOFTWARE AS A SERVICE”
1.1 Provider refers to 4-check AG, a stock corporation under Swiss law.
1.2 Authorized User means the person or entity who needs access to the Services.
1.3 Customer means the person or entity who has registered to use the Services.
1.4 “Data” means the Customer’s data concerning transactions carried out by the Customer or the authorized user through the Website and the Software at the Data Center and stored at the Data Center
1.5 Data Centre means the location of the Software and other means enabling the User to remotely initiate any operation that is part of the Services.
1.6 Data loss means modification or deletion of data. As a result of the customer’s negligence or errors, it shall not be deemed a loss of data within the meaning of this contract and shall be excluded from any contractual warranty.
1.7 Services means the services offered by the Provider online via the Software and the Website; these services may be revised or modified by the Provider from time to time.
1.8 Extraction of data means the extraction of the customer’s data from the software into data centers and their retransmission to the customer on a suitable data carrier such as a CD or DVD.
1.9 Cost of access means the fees paid by the Customer according to the list of fees on the Website (excluding all taxes & fees). The provider can change the list of fees at any time after prior notification to the customer.
1.10 Intellectual property rights means all existing or future patents, trade names, service marks, copyrights, design rights, know-how and all other intellectual property rights worldwide, both registered and unregistered rights.
1.11 Software means the standard software in object code to which the customer has access in the provider’s data centre.
1.12 Contract means the agreement between the customer and the provider on access and use of the services via the 4-check AG website.
1.13 Confidential information means any information provided by one party to the other, including oral information. The Supplier’s confidential information includes the Software, including:
- of all description characteristics (specifications),
- all documents submitted by the provider in connection with the services,
- the terms of this Agreement (including its annexes)
The customer’s confidential information includes:
- all information about the technical operations carried out by the Customer, including those concerning the IT systems, equipment and infrastructure used by or on behalf of the Customer in connection with his business,
- information on the client’s finances, business or transactions and any information about or in connection with his own customers and/or business contacts, as well as
- its data.
Excluded from the “Confidential Information” are those which a party has received and in respect of which it proves that:
- it had already legitimately obtained knowledge of the information before it was transmitted by the other party,
- the information that it has legitimately obtained from an authorized third party without violating the provisions of this Agreement,
- Information generated by the party concerned independently of its transmission by the other party itself, as evidenced by the time of the generated documents,
- Information that is publicly accessible without restrictions,
- Information the dissemination of which has been previously authorised in writing by the other party, or
- Information disclosed in execution of a court order or execution of a law, provided that the party disseminating the information previously informed the other party so that the other party had the opportunity to apply for a protective order or to prevent its dissemination.
1.14 Website means the website accessible at www.4-check.com/.de/.ch/.at and any other website operated by the Provider.
1.15 Access refers to the process by which the customer dials into the data center via the software and gains access to the services.
2 Access to and use of the software
2.1 The Provider grants the Customer and the Authorized Users the right to access and use the Services and the Software via the Website. This right is not transferable and its exercise is limited by the terms of this Agreement.
2.2 Subject to any other mandatory legal provisions, the customer acknowledges and accepts the following:
2.2.1 The Customer himself determines who is an Authorized User, but must inform the Provider of this.
2.2.2 The customer is responsible for the conduct of authorized users.
3 Duties of the customer
3.1 Access fee
For the access to the services the customer has to pay the access fees indicated on the website.
3.2 Terms of payment
3.2.1 The access fee is due from the first day of the month following registration for the Services.
3.2.2 The monthly access fee will be invoiced by the provider for 1 (one) month in advance until the end of the contract.
3.2.3 The annual access fee will be invoiced by the Provider for 1 (one) year in advance until the end of the contract.
3.2.4 All invoices of the provider are sent electronically exclusively to the e-mail address provided by the customer.
3.2.5 The Customer undertakes to pay the amounts stated in the invoices within 14 (fourteen) days of the invoice date. All taxes and fees that may be added to the access fees shall be borne by the customer.
3.3 General contractual obligations
3.3.1 The Customer undertakes to use the Services and the Website exclusively for its business and in accordance with the provisions of this Agreement.
3.3.2 The Customer shall ensure that all user names of Authorized Users and the passwords necessary for access to the Services are kept secure and secret.
3.3.3 The Customer shall immediately inform the Provider of any unauthorized use of user names and passwords and other attacks on security. In such cases, the provider will change the customer’s user names and passwords in agreement with the customer.
3.3.4 The customer must take all measures which are necessary for the maintenance or improvement of the security of the data, the software and the network connections at the provider’s discretion. For example, the user undertakes to change the user names and passwords regularly, or at least every 60 (sixty) days.
3.3.5 During access and use of the Services
184.108.40.206 the Customer shall refrain from any activity that could endanger the security or integrity of the Software, the Website and the Data Center, including IT systems and networks;
220.127.116.11 Customer shall refrain from any use or misuse of the Services that would restrict the functions of the Services or the Website or other systems used to provide the Services or restrict the use of the Services or the Website by third parties;
18.104.22.168 The Customer shall refrain from any attempt to gain unauthorized access to materials other than those to which it has access under this Agreement and which it may use in accordance with the provisions of this Agreement;
22.214.171.124 the Customer is prohibited from transmitting or inserting into the Website electronic data, materials or documents that may damage the software of third parties, the content of which is offensive or infringes the rights of third parties (including such data or materials protected by copyright or trade secret); and
126.96.36.199 Customer shall refrain from any attempt to modify, copy, adapt, decompile or reproduce computer programs of any kind (including the Software) used to access the Services or manage the Website, unless such activities are necessary for their normal use.
4.1 The Customer undertakes to use communication services (such as a platform, chat room or electronic mailbox) available via the Website only for legitimate purposes and in pursuit of legitimate intentions.
4.2 The Customer is prohibited from using communication services of any kind for the publication or distribution of material that is unrelated to the Services, such as: offers of goods or services, sending unsolicited advertising (spam), documents that could damage third party computers or computer programs, content that is liable to offend other users of the Services or the Website or material that violates any legal regulations (including material that is protected by copyright or is covered by trade secret).
4.3 By using the communication services available on the Website, the Customer acknowledges and guarantees that he/she is entitled to do so. The Provider is not obliged to ensure that the Customer’s communications are legal or related to the Services. As on any other web platform, the customer must exercise care when using the communication services available on the website. The provider reserves the right to block any communication at its own discretion at any time.
Subject to applicable law, the Customer shall indemnify and hold the Provider harmless from and against any and all claims, costs, damages and losses incurred by the Provider as a result of a breach of the provisions of this Agreement or the Customer’s contractual obligations, including the costs of collecting unpaid access fees.
5 Confidentiality and data protection
5.1 Confidentiality obligation
5.1.1 Each party undertakes to keep secret all Confidential Information received from the other party under this Agreement, unless it has obtained the prior written consent of the other party to the disclosure of the Information or is required by law to do so. Neither party may disclose confidential information or make it available to any third party or use it for its own benefit without the prior written consent of the other party, unless it is entitled to such an advantage under this Agreement.
5.1.2 The confidentiality obligations provided for in this provision shall continue to apply even after termination of the contract.
5.1.3 The provisions of Articles 5.1.1 and 5.1.2 shall not apply to information
188.8.131.52 which are public or which have become public in any way other than by breach of this Agreement;
184.108.40.206 received by a third party who has lawfully acquired it and is in no way prevented from distributing it;
220.127.116.11 which were already in the possession of the party which received them without restrictions on their disclosure; or
18.104.22.168 have been generated independently by this Party without access to Confidential Information.
6 Protection of intellectual property
6.1 General information
All intellectual property rights in the services, the software, the website and the documentation relating to the services remain the property of the provider or the issuer of the licenses granted to the provider.
6.2 Ownership of Data
Ownership and intellectual property rights to the data belong exclusively to the customer. The Customer grants the Provider a license, limited to the duration of this Agreement, to use, copy, transfer, store and retain the Customer’s information and data in order to guarantee the Customer access and use of the Services, and generally for the provision of Services to the Customer.
6.3 Storage of data
6.3.1 The Customer is obliged to keep copies of all data in connection with the Services.
6.3.2 The provider takes all measures that can reasonably be expected of him in order to maintain the integrity of the data and prevent data loss.
6.3.3 The provider ensures that the data is regularly stored and regularly provides the customer with a copy of the stored data for an additional charge. However, the provider cannot guarantee that no data will not be lost. The provider therefore excludes any responsibility for data loss, regardless of the cause of such data loss.
6.4 Use of Third Party Applications and Data
In the event that the Customer uses third party applications in connection with the Services, the Customer acknowledges that the Provider must grant such third parties access to the data in order to ensure the interoperability of the applications. The provider is not responsible for the distribution, modification or loss of the customer’s data as a result of access to the data by third parties.
7.1 The customer acknowledges:
7.1.1 Only the Customer is entitled to use the Services and the Website and to access the data stored there by him and the Authorised Users. The provider is not liable to any third party and no provision of this contract is intended to or can be interpreted to mean that third parties should be entitled.
7.1.2 Access, availability and use of the Services shall be granted “as is” and at the Customer’s own risk.
7.1.3 The Provider is not liable for the uninterrupted or trouble-free access to the Services. In particular, the functioning and availability of systems for access to services, including public telephone lines, networks and the Internet, may from time to time have a negative impact on access to the services or lead to an interruption of access. The Provider is in no way responsible for such effects or interruptions that could occur and prevent the Customer from accessing or using the Services.
7.1.4 The Customer is solely responsible for deciding that the Provider’s services meet its needs and are appropriate for the pursuit of its objectives.
7.1.5 The customer is solely responsible for compliance with all statutory provisions on bookkeeping, tax regulations, etc. The customer must ensure that the storage of the data and access via the website and the software are compatible with the applicable legal provisions (including those concerning the customer’s storage obligations).
7.2 Exclusion of any guarantee of the providers gives no guarantees regarding the services. The provider does not guarantee that the services meet the customer’s requirements or are suitable for his business operations. For the avoidance of doubt, the provider hereby excludes any implied conditions or warranties of merchantability, including warranties of merchantability, accounting & liability for defects of title.
8 Disclaimer of liability
8.1 Subject to statutory provisions, the provider excludes any liability towards the customer (or any third party), in particular for the fulfilment of his contractual and non-contractual obligations and for the loss of data and loss of profits (including for negligence). This exclusion of liability also applies to damage caused directly or indirectly by access to the website or use of the services.
8.2 In all cases, irrespective of the liability basis, the mutual liability of the contracting parties is limited to the amount of the monthly access fees in the last twelve months prior to the occurrence of the damage.
9 Duration of contract and termination
9.1 Duration of contract
This contract comes into effect upon acceptance of these conditions by the customer and is concluded for a period of one year.
9.2 Termination without giving reasons
9.2.1 Each party has the right to terminate this Agreement without giving reasons. The cancellation must be received by the other party at least one month before the end of the contract. If the contract is not terminated, it is tacitly extended for one year.
9.2.2 The customer is responsible for the payment of all costs due for access between termination and termination of the contract.
9.2.3 Fees already paid will not be refunded.
9.3 Termination for good cause
9.3.1 Each party has the right to terminate the contract immediately for the following reasons:
22.214.171.124.1 in the event of breach of contractual obligations by the other party (including but not limited to non-payment of access fees), if the other party fails to comply with this obligation within 14 days of receipt of a corresponding reminder;
126.96.36.199 Insolvency or entry of a party into liquidation.
9.3.2 In the event of a breach of the Contract by the Customer, the Provider is entitled to block access to and use of the Website and the Services for a specific or indefinite period of time.
9.4 Effects of termination
9.4.1 Termination has no effect on the rights and obligations existing at the time they take effect.
9.4.2 The Customer shall pay all fees and costs incurred before or until the termination takes effect.
9.4.3 Upon the termination taking effect, the Customer shall immediately refrain from accessing the Services and the Website.
9.4.4 Thirty (30) days after the termination takes effect, the Provider shall delete all information and data unless the Customer has requested it to make all information and data available to it for download.
10 Help Desk
10.1 The customer receives a complete documentation with the software (e.g. FAQ & webinar).
10.2 In case the customer needs help or additional information, the Help Desk is valid during the legal working days.
If the end user purchases the application through the Appstore or Google Play, the following terms and conditions apply:
(b) 4-check AG is solely responsible for the applicable application.
(d) 4-check AG is solely responsible for warranty, support, product liability, copyright infringements and similar obligations and liability claims in connection with the application.
(e) The End User is of legal age and authorized to enter into a legally binding contract.
(f) The end user can contact 4-check AG directly at [email protected]
(h) License and rights of use are granted to the End User for a maximum period of one year from the date of the last subscription.
12 General terms and conditions
This contract replaces all previous contracts, negotiations and other documents exchanged between the parties.
If either party waives compliance with any provision of this Agreement, such waiver shall not extend to the other provisions. Such a waiver must be in writing to become effective.
12.3 Extraordinary violence
Neither party shall be responsible for delay or failure to perform contractual obligations resulting from acts or events over which it has no control and the occurrence or consequences of which the party could not prevent while exercising due care reasonably expected before it.
The customer is not authorized to assign this contract or the rights arising from it to a third party without the prior written consent of the provider.
Should one or more provisions of this contract be repealed or deemed unenforceable, this shall not affect the validity or enforceability of the remaining contractual conditions to the extent that they are applicable.
12.6.1 Any notification to the other party shall be by e-mail and shall be deemed to have been delivered at the time of its transmission.
12.6.2 Notifications to the Provider shall be sent to [email protected] or any other e-mail address provided by the Provider to the Customer.
12.6.3 Notifications to the Customer shall be sent to the e-mail address provided by the Customer upon registration.
12.7 Third party rights
The provisions of this contract apply exclusively in favour of the parties. This Agreement does not grant any rights, legal advantages or claims to third parties who are not party to the Agreement.
12.8 Applicable law and jurisdiction
12.8.1 This Agreement shall be governed by Swiss law.
12.8.2 Any dispute, disagreement or claim arising out of or related to this Agreement and its amendment, in particular those relating to its formation, validity, legal effects, interpretation, performance, breach or termination, as well as any non-contractual claim, shall be settled by mediation in accordance with the WIPO Mediation Rules. Mediation takes place in Geneva. It will be conducted in German.
12.8.3 If and to the extent that mediation does not result in the settlement of the dispute or claim within ninety (90) days after commencement, the dispute or claim shall be finally decided by a simplified procedure under WIPO Arbitration Rules after either party has filed an arbitration suit. The same applies if one party refuses to participate in the mediation or abandons its participation before the expiry of the aforementioned 90-day period. The arbitral tribunal shall consist of a sole arbitrator. The seat of the arbitral tribunal shall be Geneva. The arbitration proceedings shall be held in German. It decides on the legal dispute, the difference of opinion or the claim in application of Swiss law.