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1. Subject of the services and parts of the contract
1.1 The subject of these T&C are the following services provided by ROCKY in the area of hosting (“Hosting Services”):
1.1.1 Operation of application and e-mail server according to section 3.2;
1.1.2 Support according to paragraph 3.3;
1.1.3 Backup of customer data according to paragraph 3.4.
1.2 If a result is owed according to the hosting services, this is called “work result(s)”.
1.3 The contract between the parties is concluded online via the ROCKY web shop (“Contract”). The provisions can be found on the contract
1.3.1 the agreement on order processing (this is under LINK accessible).
1.3.2 of the Service Level Agreement with the documents referred to there (together “SLA”; this is under LINK accessible); as
1.3.3 of these T&C application.
In the event of any inconsistency, the hierarchy above will apply in descending order. By concluding the contract, the customer confirms that he is aware of the content of these contract documents.
1.4 The Hosting Services are not intended for individuals in the EU and EEA.
1.5 ROCKY is entitled to adapt these T&C, the SLA and the order processing agreement at any time to the beginning of a calendar month. ROCKY will notify the customer of such adjustments at least two months before they come into effect by email or as a pop-up message. If the customer does not agree with the change, he is obliged to terminate the contract extraordinarily as of the effective date, subject to a notice period of one month by e-mail or via the administrative area available to the customer. In this case there will be no reimbursement of fees. resigns If the customer does not accept the contract, the adjustment is deemed to have been accepted.
2. Reseller Agreement
If the customer (“reseller”) concludes a reseller contract with ROCKY, he is entitled to sell the hosting services to his own customers (“end customers”) in his own name and for his own account and to obtain the hosting services from ROCKY in accordance with the contract.
3. ROCKY Services
3.1 General
3.1.1 The scope and content of the hosting services are agreed in these T&C and in the SLA.
3.1.2 ROCKY is entitled to use subcontractors or other third parties to fulfill the contract. ROCKY remains responsible for fulfilling its obligations under the contract. The provisions in the agreement on order processing remain reserved.
3.1.3 The place of performance for the hosting services is the location of the ROCKY data center in Switzerland.
3.1.4 The hosting services are available to the customer upon conclusion of the contract or registration in the ROCKY web shop.
3.2 Operation of application and e-mail server
3.2.1 ROCKY operates the application and e-mail server in accordance with the provisions of the contract.
3.2.2 ROCKY provides the customer with the agreed storage space and the server infrastructure required for the connection to the Internet (such as servers, routers, etc.; “server infrastructure”) in ROCKY’s data center for the duration of the contract. The server infrastructure includes online tools in the form of software, e.g., for the customer’s server and account management.
3.2.3 The customer may only use the hosting services for its own purposes for operating the customer website, customer applications and e-mail server. He may not offer any data center operation for his own customers, except within the framework of a reseller contract according to section2. It is prohibited to use the Hosting Services for the following purposes: (i) with bruteforce scripts/programs; (ii) as a scanner for networks; (iii) with peer-to-peer software; (iv) for email bombs and spam scripts; (v) with crypto mining software; (vi) for terminal emulations; (vii) as a game server; (viii) with web crawlers, bots, IRC servers/clients; (ix) with VoIP software; and (x) for proxy services.
3.2.4 ROCKY will create and maintain the connection between the server infrastructure and the Internet so that the customer or end customer data stored on it (“customer data”) can be accessed on request by visitors to the application server using the protocols commonly used on the Internet. ROCKY is responsible for the hosting services up to the point where the TCP/IP traffic enters and leaves the data center. ROCKY owes a bandwidth of the router to the Internet that corresponds to the state of the art. In addition, ROCKY provides the customer with remote access to the server infrastructure for a named user so that the customer can upload the customer data. If the customer concludes a reseller contract in accordance with Section2from, he is entitled to access the server infrastructure remotely with two named users. In addition, the reseller is entitled to provide each end customer with a named user.
3.2.5 The availability of the server infrastructure is agreed in the SLA. ROCKY endeavors to ensure through technical and organizational measures that unauthorized access by third parties to the server infrastructure is excluded.
3.3 Support Services
3.3.1 ROCKY will provide the customer with 24h/365d support during business hours in accordance with the SLA in connection with problems or user questions. The customer will submit inquiries to the support desk designated in the SLA. In particular, support for
3.3.2 If the customer is a reseller, he provides first level support for the end customer. Inquiries that he cannot deal with himself are forwarded to the ROCKY support desk. The reseller ensures that he acts as a single point of contact. If this is useful for dealing with a support request, ROCKY is entitled to contact the end customer directly.
3.4 Backup of Customer Data
3.4.1 ROCKY backs up customer data at the frequency agreed in the SLA.
3.4.2 In the event of data loss, ROCKY places digits from the last3.4.1restores the customer data from the backup copy made.
4. Prices/Terms of Payment
4.1 The fees are displayed in the web shop and agreed upon conclusion of the contract. Depending on the duration of the contract, they are due for payment annually (one or two-year contracts) or semi-annually (semi-annual contracts) in advance. All fees are net prices without value added tax (VAT) and other charges.
4.2 ROCKY is entitled to adjust the amount of the fees at the beginning of a new calendar year by a maximum of 5%. ROCKY will notify the customer of such adjustments by email at least two months before they come into effect.
4.3 Invoices are due for payment within 30 days of the invoice date. In the event of a delay in payment, ROCKY is entitled to demand interest on arrears in the amount of the interest rate of 8% pa. The customer owes a reminder fee of CHF 50 for each reminder.
4.4 Only counterclaims of the customer recognized by ROCKY in writing may be offset against the claims invoiced by ROCKY.
4.5 ROCKY is entitled to suspend its services in accordance with the contract for as long as the customer is in arrears with the payment of an invoice.
5. Customer’s Duty to Cooperate
The customer undertakes to create the conditions necessary for the provision of the hosting services. In particular, the customer’s obligation to cooperate includes the services listed below:
If the customer is a reseller, he is responsible for ensuring that the end customer complies with the obligation to cooperate.
6. Intellectual Property Rights and Rights to Work Results
All rights, such as intellectual property rights, to the server infrastructure and work results remain with ROCKY.
7. Dates, Deadlines and Delays
If a date or a deadline for the provision of the hosting services is not met by ROCKY through their own fault, the customer shall set ROCKY a reasonable deadline for the provision of the service by e-mail. If ROCKY fails to meet this deadline, the customer shall set ROCKY a reasonable period of grace of at least 30 days to provide the service by e-mail. If this deadline is not met either, ROCKY is in default. After a further reasonable grace period of at least 30 days set by email, the customer is entitled to terminate this contract by email. In this case, ROCKY will refund the portion of the fee paid in advance pro rata temporis since the termination. Legal remedies other than those mentioned in this section are excluded.
8. Acceptance
The work results of ROCKY are deemed to have been accepted if the customer uses them productively or if the customer does not claim defects via the support desk within 10 calendar days after they have been made available, which exclude the intended use of the work results. Other defects do not prevent acceptance but will be determined in accordance with Section9Fixed.
9. Material Warranty
9.1 ROCKY provides the hosting services with due diligence and in accordance with the generally recognized standards of the IT industry. ROCKY does not guarantee that the hosting services will be available without interruption or defects. The customer must notify ROCKY of any defects in the hosting services immediately via the support desk in a comprehensible manner.
9.2 If ROCKY is unable to rectify a minor defect in the hosting services even after two reasonable deadlines for rectification have been set by e-mail, the customer is entitled to claim a reduction by e-mail for the period of time since the defect was reported and for as long as the defect exists do. If ROCKY cannot rectify a significant defect even after two reasonable deadlines for rectification have been set by email, the customer is entitled to terminate the contract affected by the defect by email. In this case, ROCKY will reimburse the proportion of the prepaid fee pro rata temporis since the notification of the substantial defect. Other warranty claims are expressly excluded.
9.3 If the customer has reported defects in connection with ROCKY’s services for which ROCKY is not responsible, ROCKY is entitled to charge for their expenses.
10. Liability
ROCKY has unlimited liability for personal injury. In addition, ROCKY is liable without limitation for damage caused intentionally or through gross negligence, which ROCKY causes through its own actions. Any further liability, regardless of the legal reason, in particular for indirect or consequential damage, such as lost profits, additional expenses or personnel costs of the customer, unrealized savings by the customer, claims by third parties or damage from data loss as well as for auxiliary persons, is expressly excluded insofar as this is legally permissible. Liability for damage caused by DDoS attacks, hacker attacks, computer viruses, the unauthorized sending of e-mails or countermeasures taken by ROCKY in such cases is also excluded.
11. Other Customer Obligations
11.1 Security of Customer’s Use of the Hosting Services
11.1.1 The customer is obliged to keep the access data to the server infrastructure secret from unauthorized third parties. In particular, the username and password must be kept in such a way that unauthorized third parties cannot access this data. The customer will inform ROCKY immediately as soon as he becomes aware that unauthorized third parties are aware of this information.
11.1.2 The customer undertakes to only use the hosting services in accordance with the law and, in particular, not to store any illegal content on the ROCKY server infrastructure. ROCKY is not responsible for the content provided by the customer. In particular, ROCKY is not obliged to check the content for possible legal violations.
11.1.3 ROCKY is entitled to block access to customer data and to delete them if their storage is unlawful or if ROCKY can reasonably assume that this is the case. In addition, a breach by the customer of the obligations under this clause entitles11ROCKY for extraordinary termination according to clause16.2.2.
11.1.4 The customer will keep the registration data up to date and, if the e-mail address changes, in accordance with section17.1to register the new e-mail address in the administration area during the contract period.
11.2 Grant of Rights
Insofar as the content of the website is protected by intellectual property law (“protected content”) (e.g. by copyright or trademark law), the customer grants ROCKY the following right: ROCKY has the non-transferrable right to the location, which is limited to the duration of the contract the server infrastructure (for backup copies: to the place where they are stored/including mirroring), non-exclusive right to use the protected content for the purpose of fulfilling the contract and in particular to make it perceptible or accessible elsewhere via the Internet.
11.3 Exemption ROCKY
Should third parties make claims against ROCKY for possible legal violations by the customer resulting from the use of the hosting services by the customer, namely in the event of a violation of the provisions of Section11.1, the customer undertakes to indemnify ROCKY from any liability and to reimburse ROCKY for the costs it incurs as a result of the infringement.
11.4 Resellers
Does the customer have a reseller contract in accordance with Section2concluded with ROCKY, he is responsible for ensuring that his end customers comply with the provisions in accordance with Section11.1.1retain. He will take appropriate precautions for this. Violations of the provisions of Section11.1.1by the end customer, the reseller will inform ROCKY immediately via the e-mail address in the administrative area. The reseller guarantees that the end customer grants ROCKY the right of use in accordance with Section11.2grant. In addition, the reseller shall provide ROCKY in accordance with Section11.3from all claims arising from breaches of rules by end customers of the reseller ROCKY.
12. Authorization to the Customer Data
The customer or the end customers of the reseller remain solely entitled to the customer data at all times. All existing intellectual property rights to the customer data remain with you or your licensors. Subject to the provision in clause11.1.3the customer or the end customers of the reseller have access to the customer data at any time and can download it. In this context, ROCKY waives any right of retention to the customer data to which it may be entitled.
13. Force Majeure
Neither party is responsible or liable for the failure of the hosting services or the resulting consequences due to strike, lockout, pandemic, embargo, war, riots, malicious damage to property by third parties (such as cyber attacks), breakdown of machinery and technical equipment, fire, flood or storm or any other cause beyond the control of either party (“Force Majeure Event”) or as a result of the aforesaid events. If a delay in performance occurs due to a Force Majeure Event, the performance period for the affected party will be extended to enable it to perform the expected performance. If the event of force majeure makes it impossible to provide the service, the contract for this service ends. If the delay due to a force majeure event lasts for more than two calendar months, the unaffected party is entitled to terminate the contract by email
14. Confidentiality
All data and information exchanged between the parties may only be used by the recipient within the framework of the fulfillment of the contract and may not be made accessible to third parties who are not involved in the fulfillment of the contract. This applies in particular to customer data. Data and information that are publicly known upon conclusion of the contract or become publicly known during the term of the contract without breach of contract are not subject to confidentiality under this provision.
15. Protection of Personal Data (Data Protection)
15.1 With regard to the personal data of the other party (in particular the employees), the parties will comply with the relevant legal provisions, in particular Swiss data protection. The personal data of the other party will be collected, stored, processed and used if, to the extent and for as long as this is necessary for the establishment, implementation or termination of the contract or for the fulfillment of legal obligations.
15.2 The parties undertake to comply with the data protection regulations applicable to the personal data (in particular with regard to security of processing) and to impose this obligation on the persons subordinate to them who have access to the personal data (such as their employees).
15.3 The parties also conclude an agreement on order processing, which is stored under <>. It applies if ROCKY acts as a processor for the customer or the reseller. ROCKY will comply with the technical and organizational measures provided there when providing the hosting services.
16. Termination of the Contract
16.1 Contract term and ordinary termination of the contract
The contract is valid for an indefinite period and can be terminated by either party with a notice period of 30 days by e-mail or via the electronic form in the administrative area, the first time at the earliest at the end of a contract period, depending on that concluded between ROCKY and the customer Contract of six, twelve or 24 months.
16.2 Extraordinary termination of the contract
16.2.1 A party has the right to terminate the contract without notice by e-mail to the number17.1to cancel the recorded address for good cause. This is especially true if the other party
16.2.2 In addition, one party is entitled to terminate the contract without notice by e-mail if the other party commits a breach of contract and does not remedy it despite a grace period of at least 30 working days set by e-mail. Other breach of contract provisions in these General Terms and Conditions (such as Sections 7 or 9.2) take precedence over this provision. In any case, the customer will reimburse ROCKY for all services rendered in accordance with the contract until the contract is terminated.
16.3 Consequences of Termination
Upon termination of the contract, the customer has to download his stored customer data until the end of the contract using the appropriate tool. If the customer does not download the customer data by this time, ROCKY is entitled to delete the customer data.
17. Final Provisions
17.1 Declarations of intent by the customer are in the case of the numbers7,9.2or16by e-mail and in the other cases either by e-mail or via the electronic form provided for this purpose in the administrative area. All emails should be sent to the ROCKY email address provided in the admin panel. ROCKY is entitled to send declarations of intent addressed to the customer to the e-mail address provided by the customer during the registration process.
17.2 These T&C, the order agreement and the SLA contain all agreements made about the subject matter of the contract.
17.3 ROCKY is entitled to transfer rights and obligations from the contractual relationship to third parties; the customer is prohibited from doing so.
17.4 The nullity or contestability of one or more provisions of the contract does not invalidate them. In such a case, the parties shall endeavor to replace the invalid or contestable provision with another valid and enforceable provision that comes as close as possible to the legal and economic content of the repealed provision. This provision applies accordingly to the filling of gaps in the contract.
18. Applicable Law and Jurisdiction
18.1 This contract is subject – to the exclusion of the Vienna Convention on Contracts for the International Sale of Goods – exclusively to Swiss law.
The place of jurisdiction is exclusively Zurich, Zug (Switzerland). ROCKY is also entitled to assert a claim at the place of jurisdiction of the customer’s registered office or place of residence.