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1 Scope of application and validity
1.1 These General Terms and Conditions (GTCs) regulate certain aspects of service contracts in connection with the provision of services in the field of information and communication technology (ICT) by the [Tineo AG] Joint-Stock Company (referred to hereafter as “Tineo”) to legal entities and natural persons (referred to hereafter as “Customer”). Tineo and the Customer are referred to hereafter as “Contracting Parties”, and individually as a “Contracting Party”.
1.2 The GTCs are an integral part of the respective service contract. The most recent version is applicable; it is available at [www.tineo.ch] and/or sent to the Customer. Tineo reserves the right to adjust the GTCs at any time. Tineo shall take the appropriate steps to inform the Customer about any changes to the GTCs.
1.3 Additional parts of the Service Contract include the specific conditions applicable to the respective service (e.g. specific scope of service, specific remuneration etc.).
1.4 The Customer’s General Terms and Conditions shall apply only if expressly accepted by Tineo in writing in the Service Contract. In such cases, they shall only apply to the respective Service Contract.
1.5 In the event of any conflicts between these GTCs and the Contract, the regulations of the Service Contract shall take precedence.
2 Beginning, Duration and Termination of the Service Contract
2.1 The Service Contract shall be concluded after being signed by both Contracting Parties.
2.2 The Service Contract shall be concluded for an unlimited period of time, subject to a written agreement stipulating otherwise.
2.3 In the absence of an agreement to the contrary, each Party can terminate the Service Contract in writing by registered letter with a 3-month notice period, effective at the end of a month, but not before the end of any minimum contract period as stipulated in the Service Contract between the Contracting Parties. The Agreement can also be terminated within a different time frame / on a different date by mutual consent. Tineo shall confirm the termination in writing.
2.4 Provided that there is an important reason to do so, Tineo can also terminate the Service Contract with immediate effect. This is especially applicable if the services provided by Tineo, or any third-party services acquired via these services, are used, utilized, provided to unauthorized third parties or forwarded to them in an unlawful or inappropriate manner, or if Tineo’s use or performance terms or those of any third parties are violated. An important reason would be, in particular, an official announcement of the Customer’s bankruptcy or moratorium on debt enforcement.
2.5 In the event of a termination of Contract, the Parties shall collaborate, regardless of the reason for the termination of the Contract, to ensure a due transfer of business. If no minimum contract period has been agreed and if the Customer terminates the Contract before its expiry, they must pay Tineo the remuneration owed until the end of the minimum contract period, even if they no longer use the services. The right to conclude a written agreement to the contrary with Tineo is reserved. The transfer of business, the vacating of any premises and the return of any objects, in particular keys, by the Customer must be carried out within 30 days of the termination of the respective Contract.
2.6 Tineo has the right to invoice the Customer for any extra services provided in connection with the termination of the Contract, which may not be included in the Service Contract, at the applicable support and maintenance rates.
3 Tineo’s rights and duties
3.1 Tineo shall duly provide the contractually specified services within the scope of the financial and HR resources available to it. The Customer is obliged to issue instructions in writing in a clear and appropriate manner at Tineo’s request. Tineo is not obliged to follow any improper instructions on the part of the Customer. Should any instructions incur additional costs for Tineo, Tineo shall have the right to invoice the Customer for them.
3.2 Tineo has the right to involve assistants, third parties (in particular, subcontractors, partners) or employees of these third parties to ensure the performance of its obligations.
3.3 If Tineo is the Customer’s general contractor, it will be responsible for its subcontractors in the same manner as it is responsible for itself. Other than that, Tineo shall only be responsible for the selection, instruction and monitoring of the third parties involved. Should the Customer request Tineo to involve a particular subcontractor, the Customer shall bear the sole risk of a non-fulfillment or a poor fulfillment of the tasks by that subcontractor.
3.4 Tineo cannot guarantee an uninterrupted and flawless provision of services i.e. only those within the framework of the Service Level Agreements (SLAs) provided for in the Service Contracts. The services to be provided by Tineo are not to be considered as transactions for delivery by a fixed date unless agreed otherwise. Should Tineo be in default, the Customer shall have the right to withdraw from this Contract, provided they have immediately issued Tineo a written warning and granted Tineo the necessary amount of time on two occasions. Any interruptions to services announced by Tineo, especially as a result of maintenance work, do not constitute cases of default. In the event of a termination of the Agreement, the services (or parts of them) that have already been largely provided in accordance with the Contract must be remunerated in full by the Customer; a withdrawal from the Contract does not affect these services.
3.5 Any systems, devices or any other objects, software and immaterial goods provided to the Customer within the framework of the contractual relationship shall remain Tineo’s property / property of the authorized third parties, and the Customer shall have no rights of use/ownership rights or intellectual property rights in their regard. Furthermore, the ownership structure is defined in the Service Contract.
3.6 Tineo shall support the Customer to help them ensure stable conditions for the use of the services. Should work be required that goes beyond what is common, or if the work carried out by Tineo results from a malfunction of the Customer’s machine parts or from incorrect use by the Customer, Tineo shall have the right to invoice the Customer for any additional costs / the total expenditures at Tineo’s current rates.
3.7 Tineo is obliged to take measures for and implement solutions for any services faults and malfunctions during regular working hours. Regular working hours are Monday to Friday, 7:00am to 6:00pm, with the exception of Swiss-wide and cantonal holidays in the city of Basel and its surrounding region. Depending on the severity, Tineo shall also take measures to ensure good service quality outside these times, but cannot commit to contractual obligations to that effect. Remedying faults and malfunctions in accordance with the conditions of the Service Contracts or the SLAs remains reserved.
3.8 The Customer shall have the right to a refund for services invoiced by Tineo in accordance with the provisions of the respective Service Contract or SLA if the availability stipulated in that contract/agreement is not available to the Customer for reasons that Tineo is responsible for. The contractual guarantees shall not be available in the event of occurrences or circumstances, the causes of which lie within the sphere of influence of the Customer, for which the Customer is partially responsible, or which are entirely or partially the Customer’s fault (e.g. manipulations of the hardware provided by Tineo or installations or faults stemming from the Customer’s network), and in the event of an act of God (cf. Item 7.2 for a definition of an act of God). Tineo assumes no responsibility for any resources provided by the Customer.
3.8.1 Any refunds shall be made according to the contractually agreed SLAs in connection with the service volume and duration of use provided by Tineo during the invoicing period. The right to a reduction in connection with the respective services is officially stipulated in the corresponding SLAs.
3.8.2 The Customer’s repayment claims vis-à-vis Tineo must be asserted in writing within 30 days of the end of the respective invoicing period; they will expire after that period.
3.8.3 The burden of proof with regards to any non-availability lies with the Customer.
4 Resources, maintenance and upkeep
4.1 Unless otherwise stipulated, Tineo shall be responsible for any planning, procurement, operation, protection, upkeep, maintenance, monitoring, renewal and upgrades, as well as any other replacement of the resources required for Tineo to be able to provide its services. This shall also apply to any hardware and software used, with the exception of the resources (hardware and software) to be provided by the Customer according to the Service Contract.
4.2 Maintenance and upkeep include all scheduled activities in connection with Tineo's services as described in the Service Contract and required for ensuring continuous operation. The maintenance and upkeep conditions do not apply to unscheduled failures (disruptions).
4.3 If the infrastructure provided by Tineo needs to be changed, amended, replaced or moved due to statutory provisions, Tineo shall assume the resulting costs unless otherwise agreed in the Service Contract.
4.4 Should the infrastructure provided by Tineo according to the Agreement be changed, amended, replaced or moved at the Customer’s request, the Customer shall assume the resulting costs.
4.5 The Customer shall ensure the maintenance and upkeep of their own systems (hardware and software).
5 The Customer’s duties
5.1 The Customer must make sure they comply with their obligation to provide support and cooperate fully and without undue delay. If the Customer does not fulfill their contractual obligations or does so insufficiently, the resulting consequences (e.g. delays, additional expenses etc.) must be borne by the Customer.
5.2 The Customer is obliged to accept all of Tineo’s services immediately after they have been provided and to check them for faults. The Customer must report all faults immediately after their discovery.
5.4 The Customer undertakes and guarantees Tineo compliance with the cantonal and Swiss-wide statutory provisions (in particular, provisions related to criminal law, data protection, telecommunications and copyright law) applicable to the data and information exchange initiated by the Customer.
5.5 Subject to any written agreements to the contrary, only the Customer indicated in the Service Contract and their employees shall have the right to be provided with Tineo’s services, as well as any potential third parties involved within the framework of an order or a service contract, and only if the recipient of Tineo’s services is directly connected to carrying out their work-related, order-related or work contract-related duties. The Customer is prohibited from letting any third parties use or receive any of Tineo’s services, unless this is expressly permitted in the Service Contract.
5.6 The Customer undertakes to ensure that their employees also fully comply with the Customer’s duties as stated in the Service Contract. This provision also applies to any third parties involved by the Customer within the framework of an order or a service contract.
5.7 The Customer must grant Tineo’s employees access to the technical systems, devices and other objects provided by Tineo or used by the Customer for the use of Tineo’s services; this access must take place during regular working times and when required for the maintenance of service quality.
5.8 The Customer is obliged to inform Tineo immediately of any defects, faults, risks or non-availability of services, systems, devices or other objects, as well as, in particular, their unlawful use (or any use that violates the Contract) by the Customer, their employees or any third parties (e.g. hackers) in the event the Customer should gain knowledge about any of the above.
5.9 The Customer is responsible for protecting any systems, devices and any other objects in their possession that are used for the provision of Tineo’s services, as well as any data used for that same purpose or obtained by means of Tineo’s services, including any program data, against unauthorized access and manipulation.
5.10 Subletting/subleasing the communication infrastructure to third parties is permitted without Tineo’s consent. However, Tineo assumes no rights or responsibilities regarding those third parties and shall not be liable for their actions.
5.11 The Customer assumes the sole responsibility for any licenses, concessions, permits or approvals required for the installation and operation of the Customer’s own system at their or Tineo’s premises.
5.12 Furthermore, the Customer is obliged not to use Tineo’s services in any way that could lead to damages for Tineo or any third parties.
6.1 The remuneration for any services provided by Tineo shall be based on the prices agreed in the Service Contract, plus duties, taxes or any other charges. Tineo shall have the right to adjust the remuneration accordingly in the event of a change to duties, taxes or any other charges. We reserve the right to alternative contractual agreements.
6.2 Tineo shall have the right to adjust the prices at its sole discretion at any time, in particular in the event of changes to operating or business conditions (e.g. new standards or regulatory provisions, new technologies, change of suppliers, variations of production costs, price increase) by serving a 50-day notice in writing by the end of each month.
6.2.1 In the event of any significant price adjustments, the Customer shall have the extraordinary right to terminate the Service Contract in question at the time the price change comes into effect. The Customer must exercise their extraordinary termination right in writing within 30 days of being notified about the price change. Should the Service Contract not be terminated in writing within the specified period of time, it will be assumed that the Customer agrees to the adjustments, and those adjustments shall be binding for the Customer.
6.2.2 The adjustment of prices regarding any price increase, any changes to duties, taxes, increased electricity and network use or any other new charges shall not be considered a major price adjustment and shall not grant the Customer an extraordinary termination right.
6.2.3 Tineo shall have the right to carry out improvements of the services offered while maintaining or lowering the prices by serving a 14-day notice by the end of each month. In such cases, the Customer shall have no extraordinary termination right.
6.3 Payment shall be invoiced to the Customer in advance on a quarterly basis. Each additional calendar month shall be invoiced pro rata. Payment is due within 30 days of the invoice date. To make payments, the Customer must use the bank data indicated in the invoice. The Customer shall be considered in arrears without any further warning upon the expiry of the payment term. A default interest rate of 5% p.a. shall apply. Should the Customer be in default of payment, Tineo can make the provision of any future services dependent on the payment of the outstanding invoices and, at its own discretion, on advance payments or any other securities.
6.4 Should Tineo lower the prices for its services, they can, at the same time, adjust any granted discounts accordingly.
6.5 If desired, the Customer can request the basis for the calculation of the invoice amount in writing. Tineo shall provide the Customer with the calculation basis, provided that it can be created without unreasonable technical difficulties.
6.6 Any performance of services required by the customer, the prices of which have not been specifically agreed to, shall be invoiced depending on the efforts required and at the applicable standard rates in accordance with Tineo’s support and maintenance rates.
6.7 Travel, food and accommodation costs shall, without any provision to the contrary, be paid by the Customer and invoiced separately.
6.8 The Customer may only offset outstanding amounts with Tineo’s consent.
7.1 Tineo shall be liable for the damages incurred by the Customer due to a willful or grossly negligent violation by Tineo of its duties, which needs to be proven by the Customer. Tineo assumes no further liability. In no event shall Tineo be liable for direct and consequential damages, in particular for any loss of profit or data or damage to reputation. Tineo shall not be liable for damages incurred by the Customer through any abuse of the communication infrastructure by third parties. The Customer shall bear the sole responsibility for the compatibility of the hardware and software used by the Customer.
7.2 Furthermore, the Customer shall have no price reduction claims vis-à-vis Tineo pursuant to the provisions of the SLA if the performance of the service is temporarily interrupted, fully or partially restricted or made impossible due to an act of God. Acts of God include in particular natural phenomena of extraordinary intensity (avalanches, floods, landslides, etc.), acts of war, uprisings, sabotage, strikes, disruptions of third-party suppliers’ service, unforeseeable restrictions on the part of authorities, etc. Should Tineo not be able to comply with its contractual obligations, the performance of the Agreement by Tineo or the date for the performance of the Agreement by Tineo shall be postponed depending on the event in question. Tineo shall not be responsible for any damages incurred by the Customer due to postponement of performance of the contract and/or the date of the performance of the contract.
7.3 Should the Service Contracts (including their addendums) provide for any contractual penalties (in particular compensation depending on the targeted availability) at Tineo’s expense, and should those penalties be asserted by the Customer, the Customer shall not be entitlement to any further claims, including compensation or refunds/discounts.
7.4 The Customer shall be liable for any damages incurred by Tineo or any third parties while fulfilling the duties of the Contract. Furthermore, in the event of unlawful use of the services, be it by the Customer, their employees or any third parties (e.g. hackers), Tineo may immediately interrupt any of the Customer’s connections without notice. Should Tineo or their employees be prosecuted and/or held accountable under criminal, civil or administrative law due to the illegality of any information offered by the Customer in the communication infrastructure, the Customer must pay for any resulting damages.
8 Further provisions
8.1 Entry in the reference list
With the Customer’s written consent, Tineo shall have the right to put the Customer’s name on its list of references.
The Contracting Parties are obliged to ensure that their employees and any involved third parties keep the Service Contract confidential, including the Addendum, the General Terms and Conditions, as well as any facts and information they gain knowledge of in connection with the conclusion and the execution of the Service Contract (with the exception of any legally binding disclosure and information obligations). The obligation of confidentiality shall remain in force for two years after the termination of the contractual relationship.
8.3.1 The Contracting Parties, their employees and any involved third parties are obliged to comply with the provisions of the Swiss Data Protection Law at any time and to the full extent. This also includes taking the required technical and organizational safety measures.
8.3.2 Customer data will be handled within the scope of the purpose of the contractual relationship and in accordance with the provisions of the Data Protection Law. Tineo shall only collect, save and process the data required for the provision of services, processing and maintaining the customer relationship, namely safeguarding high-quality service, for the security of the operation and infrastructure, and for invoicing. For this purpose, Tineo can forward the data to third parties.
8.4 Transmitting emergency calls
Due to the “one number concept” of the virtual PBX, the company number can be used for making calls at any location. If an emergency call is placed outside of company headquarters, reliable detection of the connection source and correct routing by Tineo cannot be guaranteed. Whenever possible, suitable means of communication should be used for emergency calls.
8.5 Exclusivity and competition
These GTCs, as well as any related agreements, do not give rise to any exclusivity rights for the Contracting Parties. In particular, Tineo can conclude the same agreements with third parties for the provision of the same or similar services. Furthermore, Tineo can be the Customer’s competitor and offer the same or similar services as and/or to the Customer.
The rights and duties resulting from the Service Contracts can only be assigned and/or transferred to a successor in the event of written consent on the part of the other Contracting Party. However, Tineo does not need consent from the Customer to assign the rights and duties to their group companies and/or transfer them onto these companies with discharging effect.
9 Final provisions
9.1 The Service Contract (including these GTCs) replaces any of the Contracting Parties’ conflicting prior arrangements, offers, bids, specifications, correspondence, declarations, negotiations or agreements relating to the subject matter of the respective Service Contracts, unless a specific reference is made to them.
9.2 Any changes and amendments to the Service Contract (together with the GTCs), including a waiver of this written form of requirements, must be made in writing in order to be valid; this does not apply to the changes and amendments made by Tineo in accordance with these GTCs.
9.3 Should individual provisions of this Agreement be invalid or incomplete or should its enforcement be impossible, this shall not affect the validity of the remaining parts of the Agreement. In such cases, the Contracting Parties are obliged to immediately replace the invalid provision by an admissible valid provision that comes closest to the intent of the original provision.
9.4 This legal relationship, as well as any other claims resulting from it or in connection with it, shall be governed by substantive Swiss law under the exclusion of the Act on Private International Law and of international compacts, in particular the United Nations Convention on Contracts for the International Sale of Goods. The courts of Arlesheim, Switzerland, shall have jurisdiction over any disputes or claims resulting from or in connection with this legal relationship.
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