General Terms and Conditions
These General Terms and Conditions (GTC) shall apply to all services offered by Flow Swiss AG (hereafter "Flow"). By using our services you accept the following terms and conditions completely without any alteration.
1. SCOPE OF APPLICATION AND CONCLUSION OF CONTRACT
1.1 These GTC cover the use of services and products which Flow provides or offers to its customers (hereafter "Customer"). Our Data Processing Agreement under the European General Data Protection Regulation (GDPR) forms part of these Terms and Conditions.
1.2 Consent to these GTC is given by using the corresponding services and products. The Customer may when requesting individual services be requested to reiterate his consent to the GTC by activating a corresponding check box. When delivering a contract or a customised quote relating to Flow services and products, Flow shall provide these GTC to the Customer together with the contractual documents in writing by mail or by email. The Customer shall in this case confirm his consent to the GTC by signing and returning the quote or the contract, or by using the service or paying the invoice. The GTC shall form an integral part of the contract with the Customer.
1.3 Clauses worded otherwise in individual contracts between the parties have precedence over these GTC.
2. SERVICES AND RIGHTS OF FLOW
Flow provides both free and chargeable services. The Customer shall select the services to be provided by Flow from the range of services available at the time of use. The conditions published on the websites of Flow or in the Flow Control Panel, or the conditions of the customised quote as the case may be, shall apply to all services. Flow may at any time change the range of services and limit individual services and/or cease providing them.
2.2 Cloud services
2.2.1 As part of cloud services Flow shall provide the Customer to the extent selected by the latter with storage space and server services on an infrastructure connected to the internet.
2.2.2 The resources provided (in particular, storage, traffic, CPU / MEMORY use) may only be used for the ordinary operations of the service. Flow is authorised, with regard to resource-intensive uses by the Customer or by the users of the service (e.g. up/download of sound that goes beyond ordinary operations, video, streaming, games, file sharing, high number of simultaneous accesses, excessive storage of data files, in particular, caching files, on the server, mining, excessive hard drive access (read and/or write), etc.) to set thresholds at any time and in its absolute discretion for the resource consumption and to limit the provision of the service for the Customer accordingly.
2.2.3 Flow also reserves the right to block the user account of the Customer if the latter’s user behaviour or the user behaviour of the users of the service (e.g. a high number of simultaneous access attempts through DDoS attacks) in any way adversely affect the way the service operate. Flow shall inform the Customer (if possible within the scope of its operating resources and with respect to the concrete circumstances) in advance or immediately after the blocking.
2.2.4 Flow shall endeavour within the limits of its operational resources to offer the services continuously round the clock without any interruptions. Maintenance work, rectification of problems, expansion of services, measures to protect Flow’s infrastructure, etc. may make temporary operating interruptions necessary. The Customer shall be informed early on of such operating interruptions if this is possible in the circumstances.
2.2.5 The Internet is a world wide system of independent, integrated networks and computers. Flow can only exert influence over those systems which are contained in its network and can therefore not guarantee to deliver services error- free.
2.2.6 In so far as Flow renders services free of charge these can be ceased at any time and without prior notification. This shall not constitute any claim for reduction, reimbursement or compensation.
2.2.7 Flow can engage the services of third party providers and subcontractors for the purpose of performing the contract.
2.2.8 Delays in delivery and services as a result of force majeure and events which render the provision of the service significantly more difficult or impossible for Flow – in particular strikes, lockouts, official decrees, failure of communication networks and gateways of other operators, including if these occur with suppliers or subcontractors of Flow or their subcontracted suppliers, subcontractors or operators of sub-node computers authorised by Flow – shall entitle Flow to extend the delivery period and/or service provision by the duration of the event plus an appropriate lead time.
3. RIGHTS AND OBLIGATIONS OF THE CUSTOMER
3.1.1 The Customer is authorised to make the intended legal use of the services and products and undertakes to comply with these GTC and any instructions of Flow, in particular with regard to maintenance, updating or deletion of software.
3.1.2 When ordering and registering and in the context of using the services the Customer is obligated to provide truthful information.
3.1.3 The Customer undertakes to select passwords appropriately, keep them carefully and protect them from access by third parties. The Customer bears full and sole responsibility for the use of the passwords. If the Customer finds that his account is being misused, he must inform Flow immediately in writing (by email with subsequent acknowledgement of receipt by Flow).
3.1.4 By use of the Flow services by third parties the Customer must instruct the third party in the proper use of the Flow services in accordance with these GTC. The Customer is responsible for the culpable misconduct of the third party in the use of the Flow services, or such misconduct will be attributed to the Customer.
3.1.5 The Customer undertakes to keep the applications and software used by him (both in respect of the server and the client) up to the latest technical standard, maintain them regularly and conduct regular updates.
3.1.6 The Customer is obligated to notify Flow immediately of any disruptions and interruptions in the services requested by him and where possible assist Flow in remedying the disruption. The Customer shall bear the costs of Flow isolating and remedying disruptions if the Customer has called for the investigation and the cause of the disruption is attributable to the behaviour of the Customer.
3.2 The Customer’s responsibility for contents
3.2.1 The Customer is responsible for the content of the information (language, images, sounds, computer programs, databases, audio/video files etc.) which he himself and third parties communicating with him through Flow arrange to be transmitted or processed, disseminate or keep available for retrieval. The Customer is also responsible for references (in particular, links) to such information. Flow is not obligated to monitor the contents made accessible by the Customer.
3.2.2 The Customer is obligated while using the products and services of Flow to make only permitted contents accessible. The following contents are prohibited: contents which infringe or jeopardize rights of Flow or third parties, in particular intellectual property rights in the wider sense (for example, copyrights or trademarks) or personal rights, provisions of the Unfair Competition Act (UWG), including the contact data obligation of the Customer pursuant to Art. 3 (1) lit. s UWG, or the commercial repute; all contents which constitute criminal acts (namely in the areas of pornography, depictions of violence, racism, business secrets, libel and fraud) are also prohibited (hereafter jointly referred to as "Prohibited Contents").
3.2.3 Any disputes between joint holders of an account or the Customer and third parties relating to the use of the account or the information disseminated via the relevant account or via the service are exclusively a matter for the joint holders of the account or the Customer. Flow still has the right to inform third parties of the identity of the Customer at the request of courts or authorities (see Cl. 9.2).
3.2.4 Flow is entitled to block access to the service entirely or partly and to cease providing the services if a court or authority has requested Flow to do so.
3.2.5 Flow is entitled to invoice the Customer for the expense arising in connection with any measures taken pursuant to Cl. 3.2.2—3.2.4. The assertion of further damages remains reserved. Flow is entitled to require the Customer to provide a security deposit as a precautionary measure to ensure coverage of the expenses and the further damages. Flow is entitled to suspend the services or to terminate the contract without giving notice if the security deposit is not provided or if the Customer does not comply with the instructions given in connection with the measures taken.
4. DATA SECURITY AND DATA LOCATION
4.1 Data protection and data security
4.1.1 Unless otherwise agreed between Flow and the Customer, the Customer is solely responsible for the protection and security of his data. The Customer is responsible for taking appropriate and necessary security measures to recover his information and data in case of loss or unauthorized or unintentional modification. In general, Flow recommends its Customers to regularly back up their data at different locations
4.2 Data Location
4.2.1 Flow guarantees data location in Switzerland. All Customer data is stored and hosted exclusively in Swiss-based data centers.
5. INVOICING AND PAYMENT TERMS
5.1 All agreed prices for the Flow services are in Swiss francs and, save where otherwise indicated, are understood as excluding value added tax and other official duties. The payment obligation for chargeable services and products shall commence upon conclusion of the contract or upon using the service.
5.2 Account balance
The balance value is always based on CHF.
The Customer is responsible for ensuring that valid payment information is stored for the purpose of automatic recharging.
The service can only be used after the balance has been funded in advance.
Balance cannot be withdrawn, reimbursed, or transferred.
If the balance falls below zero, all services will be suspended and irrevocably deleted after 7 days.
If the service is misused or not used for 12 months, the account becomes invalid and the remaining balance lapses.
5.3 Trial credit
Trial credit is not redeemable for cash or credit, not transferable and is valid for new accounts only, and limited to one per organization. It may not be used in conjunction with other offers or promotions and is issued on a case-by-case evaluation. Trial credit may be billed differently, may vary, and may be revoked without previous or further notice. Trial value is always based on CHF. When promoted in printed or written forms in currencies other than CHF, as in promotional cards, flyers, digital communications like newsletters, tweets, or any other form of digital or physical communication, the actual credit may vary in response to the exchange rate.
5.4 The parties waive their right to offset mutual claims against each other.
6.1 Flow strives to provide services carefully and professionally. Flow cannot however guarantee that the service will be available continuously on the internet and that the data requested by the Customer is transmitted correctly over the internet. Flow, in addition, assumes no warranty that the services provided by Flow and any third parties used will put the Customer in the position of achieving the financial or other purpose intended by him.
7. LIABILITY OF FLOW
7.1 Flow takes all due care that can be expected of it under the circumstances during the provision of its services. However, Flow does not guarantee the faultless or uninterrupted provision of its services. Flow is not responsible for the telecommunications infrastructure of the network and telecommunication service providers nor for the transmission of the data. Accordingly, Flow is liable for neither the availability and performance of the telecommunication facilities and networks nor for the error-free, unchanged, complete, interruption-free, and timely telecommunication networks, in particular, the Internet.
7.2 Liability shall be expressly excluded for any indirect loss or damage or consequential damage. Consequential loss or damage includes, without limitation, lost profits, lost production, harm to reputation, and damages resulting from a loss of data.
7.3 Any kind of liability for damages resulting from the abusive use of or unauthorised access to Flow’s communications infrastructure or the service by third parties is also excluded. This includes in particular, without limitation, any interference by means of using computer viruses or DDoS attacks, as well as any change by hackers or unauthorised sending of emails.
8. LIABILITY OF THE CUSTOMER
8.1 The Customer shall be fully liable to Flow for loss or damage caused by wilful intent or negligence.
9. CONFIDENTIALITY AND DATA PRIVACY
9.1 Flow und the Customer mutually undertake to safeguard the confidentiality of all information and data not generally known which becomes accessible to them in preparing for and implementing the contract. This duty shall remain even after the contract has come to an end as long as there is a legitimate interest therein.
9.2 Flow and the Customer shall be responsible for ensuring data privacy in their respective spheres of influence. Flow shall take appropriate organisational and technical measures to protect personal data from unauthorised processing. Flow uses personal data exclusively for the purpose of providing its own services. In the case of certain services it may be necessary to disclose personal data to third parties in Switzerland or abroad (for example, in the case of access to applications which are operated by third party providers). Flow also reserves the right to make personal data accessible to authorities or third parties provided it is under a legal obligation to do so. Flow is further authorised to inform Customers of ongoing developments and new services of Flow itself and of partners of Flow. The Customer may at any time declare in the Control Panel that he does not wish any such information. Flow shall retain personal data only if and as long as it is necessary for the purpose of providing the services or Flow is statutorily obligated to do so.
10. CONTRACTUAL TERM AND TERMINATION
10.1 Term — general
These GTC shall apply throughout the entire period during which services are used by the Customer.
10.2 Cloud service contract
10.2.1 The contract between Flow and the Customer regarding cloud services (see Cl. 2.2) comes into effect when the Customer uses the services. The contract may be terminated by either party with a notice of 30 days as at the end of the agreed contractual term. The termination notice shall be submitted in writing by email with subsequent acknowledgment or receipt by Flow. Flow shall also be entitled to serve the termination notice by email to the email address stated by the Customer for contract-related messages.
10.2.2 If the Customer breaches contractual provisions, misuses services for illegal purposes, makes Prohibited Contents accessible, or threatens to harm Flow’s reputation, Flow is authorised in its own discretion to deactivate the service without delay and/or terminate the contract without notice. The Customer shall owe Flow the charges due up until ordinary termination of the contract as well as compensation for all additional costs incurred in connection with terminating the contract without notice.
10.3 After the expiry of the contract Flow is authorised to delete the data of the Customer. The Customer is himself responsible for backing up his data in a timely manner.
11. AMENDMENTS TO THE CONTRACTUAL CONDITIONS
11.1 Flow shall endeavour to keep its infrastructure up to date to a standard which corresponds to the security specifications and technical standard that are customary for the industry. The Customer acknowledges that new technical developments, security specifications and/or changes in the range of services of contractual partners of Flow or the open source software used by Flow may result in the range of services being expanded or restricted and may also have an impact on the way the price changes.
11.2 Flow therefore expressly reserves the right to amend the contractual terms, including these GTC, at any time. Amendments to the GTC shall be made accessible on the Flow website and shall come into effect when they are activated. Any price increases or restrictions in services that adversely affect the Customer during the contractual term shall be notified by Flow to the Customer in writing by email in the case of cloud service contracts. If the Customer does not accept the amendments, he has the option of informing Flow of this in writing within 30 days of receipt of the message by email with subsequent acknowledgment or receipt by Flow and terminating the contract as at the end of the month. If there is no written message within this period the changes shall be deemed to be approved by the Customer.
12. ADDITIONAL PROVISIONS
12.1 In the case of Customers with cloud service contracts, contract-related messages such as the notification of price changes are sent by email to the main contact email address defined by the Customer in the Control Panel. The Customer shall be responsible for ensuring that the Customer data saved in the Control Panel (invoice and administration contact and technical contact) throughout the entire term of the contract is up to date, complete and correct. Flow is not obligated to take heed of any Customer data other than the Customer data saved in the Control Panel or to make enquiries itself with regard to correcting this data. Flow is, however, authorised to correct or delete input in the Control Panel that is patently incorrect or that infringes third party rights.
12.2 Rights and duties under the cloud service contract can only be transferred to third parties with the written consent of the other party. This provision does not apply to the transfer of the contract from Flow to a legal successor or associated company.
12.3 These GTC and any disputes arising under or in connection with the contractual relationship between Flow and the Customer shall be subject exclusively to Swiss law, excluding its conflict of laws rules and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
12.4 The ordinary courts at the registered office of Flow shall have exclusive jurisdiction. Flow also has the option of taking legal action against the Customer at the latter’s domicile.
8304 Wallisellen, 05. December 2019