General Terms and Conditions of smino AG
By using our services, you agree to our Terms and Conditions, which set out your rights and our obligations.
Please read them to ensure a clear understanding.
1. scope and form
(1) These General Terms and Conditions (“GTC“) govern the rights and obligations between smino AG, Werkstrasse 20, 8645 Rapperswil Jona (“Provider“) and the customer (“Licensee or Customer“).
The Provider’s services and the GTC are only aimed at business customers and therefore only apply if the Licensee is an entrepreneur, a legal entity under public law or a special fund under public law.
(2) The GTC and this contract of the Provider shall apply exclusively.
Deviating, conflicting or supplementary GTC of the Licensee shall not become part of the business relationship between the Provider and the Licensee unless the Provider has expressly agreed to the Licensee’s GTC in writing.
Consent cannot be given by the provider tacitly or by implication.
Agreements of an individual nature – e.g. service offers and/or quotations submitted by the Provider – which substantiate these GTC shall take precedence over the GTC.
(3) Notes on the interpretation of statutory provisions are purely explanatory.
Even if such explanations are missing, the statutory provisions are still applicable unless they are directly modified or expressly excluded by these GTC.
2. subject matter of the contract
3. conclusion of contract
(1) The option to use the chargeable services does not constitute an offer, but an invitation to the customer to submit an offer.
By completing the payment process by settling the invoice, the customer submits a binding offer to conclude a contract for the use of our services in accordance with these GTC.
Unless otherwise agreed in individual contracts, the provider is entitled to accept this contractual offer within 4 weeks of its receipt.
(2) If the contract is concluded in writing, the customer’s offer is accepted directly by the provider by creating a customer account.
(3) In all cases, the contract is concluded at the latest when the provider’s services are used.
4. rights and obligations of the provider
(1) The Provider shall grant the Customer access to use the latest version of the Services via the web-based app or the mobile app by providing a customer account after conclusion of the contract.
The customer account will contain functions in accordance with Section 4 of these GTC that can be used by the customer.
(2) The provider shall ensure the functionality and availability of the services during the term of the business relationship.
(3) The provider can technically develop and adapt the services at any time, e.g. in the event of a change in the legal situation or to improve IT security or the customer’s wishes.
As far as possible, the Provider shall inform the Customer in advance of planned changes and adjustments to the services, mainly via the newsletter.
This should be subscribed to in any case.
Should updates and changes lead to significant impairment of the services, the customer may terminate the contractual relationship for good cause.
(4) The Provider shall regularly maintain the in-house services in order to eliminate errors and make improvements to the services.
The services may be temporarily interrupted for this purpose.
In emergency situations, to rectify faults or carry out urgent maintenance work, access can be made at any time.
As far as possible, the provider shall provide advance notice of potential service interruptions at https://status.smino.com.
(5) The Provider shall take appropriate measures in accordance with the current state of the art to protect the data; however, the Customer is responsible for backing up its own data, e.g. by exporting the data at intervals.
The customer must therefore order the archiving of business-relevant data himself.
The provider is not obliged to archive the customer’s data or to create backups of it.
(6) The Provider is entitled to commission subcontractors within the scope of the provision of services.
(7) The Provider may restrict the Customer’s access to the Services in whole or in part at any time at its reasonable discretion, taking into account the legitimate interests of the Customer, if necessary without prior notice, and may determine, change, remove or delete the content and functions of the Services at its own discretion.
5 Scope of license and rights
(1) From the start of the contract, the customer acquires the non-exclusive, non-transferable, freely revocable right to use and utilize the services within the limits of these GTC.
A physical copy and transfer of the services, e.g. by means of a data carrier, shall not take place.
(2) The license is limited to use for the customer’s own business purposes and depends on which license model the customer has agreed with our sales employee.
(3) The services can only be sublicensed to third parties with the consent of the provider; inviting third parties who only have limited access to the collaboration platform does not constitute sublicensing.
(4) All intellectual property rights relating to the provider’s services shall remain with the provider or the authorized third parties.
Insofar as third parties are entitled to the rights, the provider guarantees that corresponding rights of use and distribution exist.
(5) The Customer acknowledges and undertakes to respect and protect the intellectual property of the Provider, its suppliers and subcontractors.
(6) If a third party asserts or should assert claims against the customer due to infringement of an intellectual property right, the customer must inform the provider immediately in writing of such infringement notices or claims made.
The customer waives any warranty or liability claims against the provider.
6. rights and obligations of customers
(1) The customer is prohibited from copying, reverse engineering, distributing, storing (unless technically necessary for proper use), editing, modifying and offering, providing or distributing services or parts thereof to third parties for a fee or free of charge.
(2) The customer is obliged to keep all personal details truthful, complete and up to date.
Customers may not use pseudonyms.
By using the services, the customer declares that only persons of legal age have access to the services.
(3) Customers must ensure that they only use their own customer account.
They must ensure that no other person who is not authorized can use the customer account under their name.
Customers must choose a secure password, keep it safe and keep it secret.
(4) Natural persons who communicate with the provider on behalf of legal entities and manage the customer account of legal entities must always guarantee at the time of use that they are authorized to use the services on behalf of the legal entity.
(5) Customers can request support from the provider via the website.
There is no obligation to provide support.
The provider may stipulate that support services are subject to a charge.
7. remuneration
(1) The provider’s prices are exclusive of
statutory value added tax.
(2) The fixed license fee shall always be invoiced in advance at the beginning of a term for the corresponding period.
The license fee is due upon receipt of the invoice in accordance with the due date on the invoice and must be paid by the customer without any deductions.
(3) After expiry of this period, the customer shall be in default without a reminder.
The customer shall bear all costs (including reminder, collection, legal and court costs) incurred by the provider as a result of the default in payment.
The Provider may charge interest on arrears at the statutory rate.
(4) Invoicing by the provider to the customer is currently carried out by e-mail.
smino reserves the right to adapt this process in the future and send it via an online tool.
8. elimination of technical faults
(1) The customer is obliged to report any defects that occur, as well as their effects and exact circumstances (e.g. error examples, data) to the provider immediately in writing or electronically (e.g. via the support team).
The Customer shall grant the Provider access to all information required for the rectification of defects.
(2) Minor program errors are rectified by our 1st level support team free of charge.
(3) Termination by the customer due to failure to grant use in accordance with the contract is only permissible if the provider has been given sufficient opportunity to rectify the program error and this has failed.
Failure to rectify the program error shall only be assumed if this is impossible, if it is refused or unreasonably delayed by the provider, if there is reasonable doubt as to the prospects of success or if it is unreasonable for the customer for other reasons.
(4) The customer’s rights due to defects are excluded if the customer makes changes to the provider’s software or has them made without the provider’s consent, unless the customer proves that the changes have no unreasonable effects on the analysis and elimination of the defects for the provider.
The customer’s rights due to defects shall remain unaffected if the customer is entitled to make changes, in particular within the scope of exercising a right of self-remedy, and these have been carried out professionally and documented in a comprehensible manner.
(5) The Provider is entitled to circumvent a program error by means of so-called “workarounds” if the cause of the defect itself can only be eliminated with disproportionate effort and the usability of the service owed is not significantly impaired as a result.
(6) The provider’s strict liability for initial defects is excluded.
(7) If a defect reported by the customer is not attributable to the provider or if there is no defect at all, the provider shall invoice the customer for the analysis, rectification and maintenance work incurred in connection with the defect report at the applicable rates.
9. liability
(1) In the event of damage caused by slight negligence at most, the customer’s claims for damages shall be limited in amount to the damage which the provider foresaw as a possible consequence of the breach of duty at the time of the breach of duty or which the provider should at least typically have expected, but at most up to an annual usage fee.
Liability for indirect damages, consequential damages and loss of profit is excluded in these cases.
(2) The Provider shall only be liable for the loss of or damage to data or programs to the extent that their loss or damage could not have been avoided even if the Customer had taken reasonable precautions (in particular the regular creation of backups).
(3) Except in cases of assumption of a guarantee, in the case of damage caused intentionally or by gross negligence or in the case of personal injury (life, limb and health), the above limitations of liability shall apply to all claims for damages in connection with the contract, irrespective of the legal grounds (including claims in tort).
(4) The above limitations of liability shall apply accordingly in the event of any claims for damages by the customer directly against employees, agents or vicarious agents of the provider, in particular also against third-party providers.
With regard to damages caused by a third-party provider, the provider shall only be liable for a dutiful selection of the third-party provider.
However, the provider offers the customer the option of assigning his own claims against the third-party provider to the customer, insofar as this is legally possible.
(5) The provider’s liability for damages caused by force majeure is also excluded.
If a state of force majeure lasts for more than four weeks, the provider shall be entitled, subject to statutory provisions, to withdraw from the contract without further ado.
Any additional expenses shall be invoiced at the rates applicable at the time. force majeure includes events beyond the control and responsibility of the service provider such as official import or export restrictions, warlike events, terrorist activities, general mobilization, riots, sabotage, fire, floods, panic and epidemics, power supply bottlenecks, damage to or failure of IT infrastructure, etc.
(6) The customer is fully liable to the provider and third parties for the actions of third parties who have access to the customer’s customer account.
10 Term and termination
(1) The contractual relationship shall commence upon conclusion of the contract for a term of one year or for the term of the respective agreed project or the respective license.
(2) If the contractual relationship is not terminated in good time by either party, it shall be automatically extended by a (possibly further) fixed subsequent term of one year in each case, unless the contractual partner receives a notice of termination by e-mail to billing@smino.com at least 3 months before the end of the minimum term (or at the end of the subsequent term) If the customer books additional modules during the term, the term of these modules shall end at the same time, irrespective of the booking date of the modules.
The costs for these modules will be calculated pro rata on the basis of the remaining term of the main license; if the customer extends the main license, the terms of the booked modules will also be extended accordingly, unless they are terminated separately.
The costs for the modules are then calculated according to the full term of the main license.
This means that the costs for the modules are calculated in proportion to the entire term of the main license if it is extended.
For example, if the main license is extended for a further year, the costs for the modules will be charged for this additional year.
(3) The right to terminate without notice for good cause remains unaffected.
The termination must be in writing.
Good cause shall be deemed to exist in particular if the continuation of the user agreement is no longer reasonable for the provider for objective reasons, e.g. in the event of insolvency or default of payment, bankruptcy, justified doubts about the customer’s solvency, infringement of intellectual property rights by the customer, material breach of these GTC or the other contractual provisions.
(4) Furthermore, the Provider reserves the right to extraordinary termination if the Customer or third parties invited by the Customer disseminate offensive, defamatory or illegal content, send SPAM, unlawfully use the intellectual property rights of third parties, process personal data without consent, disseminate malware, act outside the rights of use or violate confidentiality obligations.
(5) The occurrence of an interruption in performance during an existing period of use shall not constitute an important reason for termination within the meaning of this contract.
The material warranty shall be excluded in the event of an interruption in performance due to force majeure.
11 Confidentiality and data protection
(1) Both parties are likely to disclose or have already disclosed confidential information within the scope of their contractual relationship.
Confidential information is all information marked as “confidential” in writing or verbal information if this has subsequently been confirmed in writing and marked as confidential, as well as information whose confidentiality is derived from its content or the circumstances of its disclosure.
Confidential information also includes the commercial agreements between the parties and the personal data collected or processed thereunder.
If there is any doubt regarding the confidentiality of information, the party that has received this information shall immediately contact the other party and request clarification, but in any case before this information is disclosed to third parties.
(2) Information shall not be deemed to be confidential information if the party receiving it can prove that
(a) it was known to it prior to disclosure by the other party
(b) it has independently developed the information without recourse to or use of information from the other party
(c) it lawfully obtained the information from a third party who, to its knowledge, was not under a duty of confidentiality to the other party
(d) it became known to it or to the public without breach of these provisions or of any other provisions protecting the other party’s business secrets; or
(e) they must be disclosed due to a legal obligation or an official or court order.
In the latter case, the party that has received the information must inform the other party immediately before disclosing it to third parties.
(3) Unless it is necessary for the fulfillment of the contract, both parties are obliged to treat the confidential information of the other party as strictly confidential, to use it only for the purposes of this contract and to protect it with at least the same care as they use to protect their own confidential information.
(4) The mutual confidentiality obligations under this section shall apply for the entire term of the contract and for a period of 5 years after its termination.
(5) In their respective areas of responsibility, the parties are themselves the responsible body within the meaning of data protection law (which means that each contracting party decides on the purposes and means of processing, collecting and using the data in its respective area of responsibility) and are themselves responsible for the lawfulness of data processing, collection and use and for safeguarding the rights of the data subjects.
Where necessary, the contracting parties must inform the data subjects about the collection, processing and use of the data or obtain their consent.
In particular when using the “Ghosts” function.
(6) The privacy policy and how the data is processed by the provider can be viewed here: https://smino.ch/datenschutz.
(7) In addition to these GTC, the order processing contract also applies, available here.
12. reference citation
The parties agree that the Provider may include the Customer and its company, in particular its logo, as a reference on the Provider’s website.
In addition, the provider is entitled
to use the company logo and the customer’s company for marketing purposes both offline and online.
13. transfer
Rights or obligations arising from individual contracts may only be transferred by the customer with the prior written consent of the provider.
The provider is entitled to transfer rights and obligations in part or in full to third parties without the customer’s consent.
14. final provisions
(1) All legally relevant declarations, amendments and ancillary agreements must be made in writing in order to be valid, with the exception of termination in accordance with clause 9 (2) sentence 1.
(2) The Provider may amend these GTC at any time without the Customer’s consent.
The Provider shall send the Customer the amended terms and conditions by e-mail at least 30 days before they come into force and shall point out the intended validity of these new GTC, including for an ongoing contract, as well as the Customer’s right to object to the validity of these GTC.
If the customer does not object to the validity of the new GTC within this period or uses the contents of the services after the amended GTC have come into force, the new GTC shall be deemed to have been accepted.
The Provider shall inform the Customer of the significance of the 30-day period, the right of objection and the legal consequences of silence in a suitable form.
(3) Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of these GTC and its remaining provisions.
The parties undertake to replace the affected provision with a valid and enforceable substitute provision that comes as close as possible to the economic purpose of the original provision.
15 Applicable law and place of jurisdiction
(1) Swiss law shall apply exclusively, with the express exclusion of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on April 11, 1980), the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention, LugÜ) and the Swiss Federal Act on Private International Law (IPRG).
(2) The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Rapperswil-Jona, Canton of St. Gallen, Switzerland.
Mandatory places of jurisdiction remain reserved.
Rapperswil-Jona, July 2023
