These General Terms and Conditions (GTC) apply to all services offered by Nine Internet Solutions AG (hereinafter called "nine"). By using our services, you accept the following Terms and Conditions in full and without alteration. The GTC form an integral component of the agreements made between nine and the Customer.
1. Scope and conclusion of agreement
1.1 Subject of these GTC is the use of services that nine provides or offers to its customers (hereinafter called the "Customer").
1.2 The Customer consents to these GTC by entering an individual service agreement or by activating a customer account. From this point onwards, the consent applies to using our services. Using a service includes, in particular, activating a product made available to the Customer in Nine's customer portal (hereinafter called the "Customer Cockpit").
1.3 For purposes of using individual services, the Customer may be requested to consent to the GTC again by activating the appropriate checkbox. When delivering a customer-specific offer, nine makes these GTC available to the Customer along with the relevant documentation by mail or electronically (via email or link). In this case, the Customer gives his or her consent to the GTC by confirming the offer, using the service or paying the invoice; the agreement is formed through whichever of these actions occurs first in time.
2. Nine's services and rights
2.1 nine performs services related to the configuration or operation of servers. Unless otherwise specified in the agreement, nine makes storage space available to the Customer on an infrastructure (the "Customer Server") connected to the Internet. The server infrastructure may be operated by nine, as well as by a third party. The actual scope of services is indicated in the agreement between the Customer and nine.
2.2 Unless otherwise agreed, nine may perform the contractually agreed services directly or in cooperation with third parties or may have them performed entirely by third parties. nine remains responsible for performing the agreement in any case.
2.3 nine strives to offer its services around the clock without failures or interruptions as operational resources allow. However, maintenance work, troubleshooting, the expansion of services, steps taken to safeguard Nine's infrastructure, etc. may make temporary operational interruptions necessary. The Customer will be notified of such operational changes in good time as circumstances allow. Where possible, scheduled interruptions will occur outside of office hours (unless otherwise specified in the agreement: Monday to Friday, 9:00 a.m. – 6:00 p.m., excluding national holidays in Switzerland and cantonal holidays in the Canton of Zurich).
2.4 nine may block access to the Customer Server in whole or in part and/or discontinue the services if (i) the requirements of the notice and take down process pursuant to Code of Conduct – Hosting (www.swico.ch) are met, (ii) nine is requested to do this by a court or government agency, (iii) nine itself might otherwise become liable under civil or criminal law, or (iv) if a random sample gives rise to concrete evidence or the suspicion of a breach of these GTC, the publication of illegal content or any other unlawful or non-contractual use of Nine's products and services. nine also reserves the right to reject virus-infected emails. The Customer acknowledges that even desired messages may be filtered and could be lost.
2.5 nine may suspend its service or block access to the Customer Server if the user behavior of the Customer or third parties (e.g., a high number of simultaneous requests on the Customer Server involving DDoS attacks) in any way impairs the operation of the Customer Server or other servers/services of nine. nine will inform the Customer (as operational resources allow and where possible based on the actual circumstances) in advance or immediately after the fact regarding the block that is to be or has been implemented.
2.6 nine has the right to bill the Customer for expenses incurred by nine in relation to measures taken pursuant to sections 2.4 and 2.5. nine reserves the right to claim additional losses. nine may request the Customer to provide security as a precaution to cover the aforementioned expenses and any additional losses. If this security is not paid or if the Customer fails to comply with the requests made in relation to the measures taken, nine may suspend the services or terminate the agreement with the Customer without notice.
3. The Customer's rights and duties
3.1 The Customer has the right to make fair use/acceptable use of the services.
3.2 The calculation of the use of Nine's services is based on the average use of nine's resources (fair use). The resources made available (in particular, storage space, traffic, CPU/RAM use and support) may only be utilized for the proper operation of the Customer Server. If the Customer uses nine's resources beyond the acceptable level, nine will offer an upgrade to a more powerful class of service. If the Customer does not agree to the offer, nine reserves the right to terminate the agreement (if necessary, without notice).
3.3 The Customer is responsible for content (language, images, sounds, computer programs, databases, audio/video files, etc.) that the Customer (and third parties who communicate with him) causes nine to transmit or that the Customer himself process, distributes, stores or makes available for retrieval. The Customer is also responsible for references (in particular, links) to content. nine has no duty to monitor any content published by the Customer.
3.4 The Customer must keep up to date the components and applications operated by him or her (by making regular updates, etc.) and is responsible for ensuring the system and network security of the same. If the Customer fails to fulfil his or her obligations, he or she is liable as specified in section 8. The Customer also acknowledges that, from time to time, nine performs software updates and upgrades and replaces the server hardware, particularly to ensure the security of the operating systems. Because this can result in an incompatibility with customer applications in use, these applications may need to be adapted under certain circumstances. nine may make a test system available to the Customer at no charge for up to two weeks prior to every upgrade or change of hardware so that the Customer can test the compatibility of his or her applications.
3.5 Any fault or interruption caused by the Customer or by the users attributable to him or her will be eliminated by nine at the Customer's expense. The work performed shall be charged at Nine's prevailing rates at the time.
3.6 When placing an order, registering (particularly to set up a customer account for access to the Customer Cockpit), and using the services, the Customer is required to make truthful and transparent statements. In particular, the Customer is responsible for ensuring that the customer data stored in the Customer Cockpit (billing and administration contact, as well as technical contact) are current, complete, and accurate for the entire term of the agreement. nine has no obligation to consider customer data other than those stored in the Customer Cockpit nor to conduct its own inquiries with a view to correcting the same. However, nine has the right to correct or delete entries in the Customer Cockpit that are obviously incorrect or violate the rights of third parties. In the event of ambiguities as to the correctness of the Customer's data, nine may at any time suspend the services and bill the Customer for any resulting costs by analogy to section 2.6. If nine determines that the Customer has not made truthful or transparent statements about his or her identity (including addresses and contact information), nine may discontinue the service immediately and terminate the agreement without notice.
3.7 The Customer agrees to select passwords appropriately, store them carefully, and protect them from access by third parties. If the Customer determines that his or her account has been misused, he or she must inform nine in writing immediately (via email, followed by acknowledgement of receipt by nine). The passwords or other identification parameters shared with the Customer are intended for the personal use of the recipient and must be treated confidentially. nine may assume that the person using an identification parameter is entitled to take the action authorized thereby, particularly to enter into or terminate agreements by making the corresponding change in the Customer Cockpit.
3.8 For security reasons, the Customer has no access to the server rooms operated by nine or third parties engaged by nine. The foregoing will apply unless nine and the Customer have expressly agreed otherwise.
3.9 Furthermore, the Customer must comply with the terms and conditions of Nine's Acceptable Use Policy. The current version of this policy may be viewed on the website www.nine.ch and via the Customer Cockpit. The policy is a component of these GTC.
4. Data backup
4.1 nine offers a variety of services aimed at safeguarding the Customer's databases, files, and emails. The frequency of backups and the duration of the availability of the backup copies created by nine vary depending on the option specified in the agreement. The Customer is responsible for selecting the data backup options corresponding to the required level of protection, the likelihood of occurrence, and the severity of the risks.
4.2 In his or her area of responsibility, the Customer must take the security measures necessary and appropriate to restore his or her information and data in the event of loss or unauthorized or unintentional alteration. This includes but is not limited to regularly verifying the readability of the backup copies created by nine, as well as other services of nine as specified in 4.1. nine advises its customers to back up their data regularly.
4.3 nine advises its customers that data are backed up at different times and at different time intervals depending on the type of data or on the service package selected by the Customer. Furthermore, in exceptional cases, for technical reasons, e.g., because of maintenance work, faults in the system, or if it has become necessary to replace parts of the server infrastructure, nine may not be able to perform any data backup or data recovery for specific hours. In any case, data recovery does not include volatile data, such as temporary files and emails redirected to a separate spam folder by a spam filter. The spam folder is not being saved but regularly deleted.
5. Invoicing and payment terms
5.1 The duty to pay for services begins upon entry into the agreement (cf. section 1). nine will normally bill the Customer in advance for the selected contractual term in each case. Unless the invoice form specifies otherwise, the invoice must be paid within 20 days, and the stated prices are net prices (excluding VAT).
5.2 If the Customer breaches the payment terms indicated above or stated on the invoice form, he or she is in default as of the due date of the receivable. If the Customer defaults in making a payment, nine has the right to charge 5% default interest and may also charge collection notice fees of CHF 20.00 (per notice letter) as of the second notice. Furthermore, nine may terminate the service as specified in section 11.2. Moreover, nine has the right to suspend the service if the second notice to the Customer proves unsuccessful. For purposes of restoring service, the Customer will be charged a fee of CHF 100.00, and nine may require the Customer to pay for the regular billing period in advance.
5.3 Neither Party may offset its receivables against those of the other Party.
6.1 nine is liable to the Customer without limitation for direct and proven losses resulting from wrongful intent or gross negligence on the part of nine.
6.2 In order for any warranties to take effect, nine must first receive a fault report from the Customer (email followed by confirmation of receipt by nine), including a clear description of the alleged defects. The Customer must grant nine a reasonable grace period of at least 30 days to correct the defects specified in the notice of defects. If the defects have not been corrected by the time the grace period has expired, the Customer may terminate the agreement immediately. Any fee paid previously will be reimbursed by nine to the Customer pro rata for the time period in which the Customer no longer uses the service because of the termination. Any other compensation is excluded, subject to section 7 of these GTC.
7. Nine's liability
7.1 nine is unlimitedly liable to the customer for direct and proven damages caused by unlawful intent or gross negligence on the part of nine.
7.2 Liability for ordinary negligence on the part of nine and the third parties engaged by it is limited to the amount of CHF 100,000.00 per calendar year and to direct losses. nine explicitly excludes any liability for indirect or consequential losses. Consequential losses include but are not limited to lost profits, production losses, damage to reputation, damages resulting from data loss, and third-party claims.
7.3 nine is not liable for losses arising from any unlawful or non-contractual use of its services by the Customer or any third party. In particular, any liability for losses arising because third parties use Nine's infrastructure or customer applications improperly or interfere with them without authorization is excluded. This includes but is not limited to interference by means of computer viruses or DDoS attacks, as well as changes made by hackers and sending e-mails without authorization. This disclaimer also covers losses that the Customer incurs because of measures that nine must take to defend against such interference by third parties (e.g., blocking access to the customer website to protect nine's infrastructure and other customers from DDoS attacks, and all other measures specified in sections 2.3 - 2.6).
7.4 The foregoing exclusions and restrictions of Nine's liability do not apply in case of injury to life, physical or health, nor in the event of mandatory legal provisions, including the provisions of the Swiss Product Liability Act.
8. The Customer's liability
8.1 The Customer is liable for losses incurred by nine or any third party because of the fault of the Customer or his or her users.
9. Confidentiality and data protection
9.1 nine and the Customer mutually agree to preserve the confidentiality of all non-public information and data that become available to them in the course of preparing and implementing the agreement. This duty will remain in effect after the termination of the agreement, as long as a legitimate interest in this exists.
9.2 nine and the Customer will ensure data protection and security compliance within their respective areas of influence. nine takes reasonable organizational and technical measures to protect personal data against unauthorized processing. nine only uses personal data for the purpose of performing its own services. With certain services, it may be necessary to forward personal data to third parties in Switzerland or abroad (for instance, for purposes of accessing applications operated by third-party providers). nine also reserves the right to make personal data available to government agencies or third parties insofar as nine is required by law to do this. nine will preserve personal data only insofar and for as long as this is necessary for purpose of performing the services or nine is required by law to do this.
9.3 Where nine processes personal data as part of the work commissioned by the client (commissioned data processing), The Data Processing Agreement (DPA) forms an integral part of the agreement between the customer and nine. The DPA is found here: https://docs.nine.ch/docs/legal-documents/data-processing-agreement. Nine can adjust the DPA at any time. The customer will be informed of any such adjustments beforehand.
9.4 Furthermore, nine has the right to inform customers about ongoing developments and new services of nine and its partners. The Customer may at any time state that he or she does not wish to receive such information.
10. Intellectual property and ownership of hardware
10.1 For the duration of the agreement, customers are granted the non-transferrable, non-exclusive right to use the product or service. All rights to intellectual property existing or arising at the time of performance of the agreement relating to Nine's products or services (e.g., programs, templates, data, marks, patents, copyrights, etc.), will remain with nine or the third parties engaged by it.
10.2 Unless the Parties expressly agree otherwise, any components that nine utilizes to perform the services are owned exclusively by nine or the third parties engaged by it.
11. Contractual term and termination
11.1 Commencement and term
11.1.1 nine presents its range of services without obligation on the website www.nine.ch. nine may change its range of services at any time and restrict individual services and/or cease to provide the same.
11.1.2 The agreement between nine and the Customer becomes effective through confirmation of a customer-specific offer or through use of the services by the Customer (particularly upon activation of these services in the Customer Cockpit).
11.1.3 Unless otherwise specified, the agreement entered into by the Customer and nine is open ended.
11.2 Termination of the agreement
11.2.1 With open-ended agreements (unless otherwise agreed), each of the Parties may terminate the agreement at the end of the month in question by giving one month's prior notice. Fixed-term agreements may be terminated one month before the agreed contractual term expires. If notice of termination is not given within the specified period, the agreement renews automatically for the agreed contractual term in each instance.
11.2.2 Notice of termination must be given in writing by registered mail followed by confirmation of receipt by nine or, for certain services, by selecting the termination option in the Customer Cockpit online. nine also has the right to terminate the agreement via email to the e-mail address indicated by the Customer for contract-related notifications.
11.2.3 nine reserves the right to terminate the agreement for good cause at any time without notice. Good cause exists in cases including but not limited to the following:
* if the Customer breaches material contractual provisions (e.g., sections 2.5, 3.2 and 3.6),
misuses services for unlawful purposes,
or stores or publishes illegal content (cf. Acceptable Use Policy);
* if the Customer is declared bankrupt or insolvent or it otherwise becomes clear
that the Customer can no longer meet his or her payment obligations,
and he or she fails to provide the appropriate security for at least one contractual term
(see, in particular, section 5.2).
11.2.4 If nine terminates the agreement without notice, the Customer must pay the fees accruing until the date of ordinary termination, as well as compensation for all additional costs accruing in relation to the termination of the agreement without notice.
11.2.5 Once the agreement has expired, nine has the right to delete the Customer's data. The Customer himself is responsible for backing up his or her data in a timely manner.
12. Change of contractual terms and conditions
12.1 nine strives to keep its infrastructure in line with a current standard that fulfils the security requirements and technical standard customary in the industry. The Customer acknowledges and agrees that new technical developments, security requirements, and/or changes in the range of services offered by contracting partners of nine or in the software utilized by nine may result in an expansion or restriction of the range of services offered and may also affect price developments.
12.2 Therefore, nine explicitly reserves the right to change the contractual terms and conditions, including these GTC, at any time. Changes to the GTC are made public on Nine's website and become effective upon publication. If the Customer does not accept the changes, he or she has the option to notify nine within 30 days of receipt of the notice in writing via registered mail with confirmation of transmission or via the Customer Cockpit and terminate the agreement subject to the notice period specified in section 11.2.1. If such notice is not given within this period, the changes will be deemed to have been accepted by the Customer.
13. Additional provisions
13.1 Should any data which nine stores for the client become endangered through measures taken by third parties, such as seizure or requisition, bankruptcy or settlement proceedings, or any other events or measures effected by third parties, nine has to inform the client of this endangerment immediately. Nine will inform any parties responsible within this context that the data sovereignty and ownership is that of the client alone.
13.2 Subject to section 2.2, the rights and obligations arising from agreements entered into under these GTC may only be assigned to a third party with the written consent of the other Party. This provision does not include the assignment of the agreement by nine to a legal successor or affiliate.
13.3 If one or more provisions of these General Terms and Conditions prove to be void or invalid, this will not affect the remaining provisions hereof. These provisions will remain identical and remain valid. The void provision(s) must be replaced by lawful provisions that are as equivalent as possible to the void provision(s).
13.4 These GTC and any disputes arising from or in connection with the contractual relationship between nine and the Customer are exclusively subject to Swiss law, excluding its conflict-of-law provisions and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.5 The courts of ordinary jurisdiction of Nine's principal place of business shall have exclusive jurisdiction. Alternatively, nine has the right to take legal action against the Customer at his or her domicile.
13.6 These General Terms and Conditions take effect as of 10 August 2023 and supersede all prior versions.
Zurich, 10 August 2023