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Ringstrasse 15A, CH-8600 Dübendorf (hereinafter referred to as “Barix”)
These General Terms and Conditions (”GTC”) govern the contractual relationship between Barix and its contractual partner regarding the use of “SoundScape,” a cloud-based solution offered by Barix.
Any amendments or additions to these GTC will only be valid if agreed in writing. If any provision of these GTC or of a contract based upon them (”contract”) is or becomes invalid, or if a loophole exists, the legal validity of the other provisions shall remain unaffected thereby. In place of the invalid provision, a valid provision shall be deemed agreed upon from the outset which most closely approximates the economic purpose of the provision intended by the parties. The same shall apply in the case of a loophole.
Brochures, flyers as well as information on Barix's homepage (www.barix.com) contain non-binding information. Orders submitted by the contractual partner are processed via Barix's Online Shop (www.barix-soundscape.com) as well as in writing or via email. The order submitted by the contractual partner to Barix is deemed to be a quotation which is valid for eight work days, which Barix accepts through its delivery of the invoice.
Barix grants to the contractual partner a simple, non-transferable right
of use of SoundScape in its current, updated version via the Internet, for the number of devices as stated in the order confirmation or invoice and, as stated there as well, with the data volume made available to the client; this right is limited to the duration of this contract. The right of use comprises the use by the contractual partner or by customers registered in SoundScape by the partner. The contractual partner agrees not to make SoundScape available, neither completely nor in part, to third parties are that not registered as customers, and not to make it accessible in any other way. With the exception of the right of use pursuant to this clause, all rights to SoundScape shall remain with Barix or with a licensor of Barix, as applicable.
The specifications of SoundScape are contained in the product specifications on SoundScape's portal, accessible to the contractual partner at www.barix-soundscape.com. The contractual partner has acknowledged these specifications. SoundScape is accessible over the Internet through a browser listed in the documentation.
Barix will provide the following support services for SoundScape:
Barix will correct SoundScape errors pursuant to the warranty provisions in clause 8.
Barix will carry out program enhancements through updates with small functional adaptations (e.g. with regard to speed, user guidance or debugging) and make them available to the contractual partner. There is no entitlement to a release on a specific date.
New releases with major changes and improvements such as important additional functionalities must be additionally licensed by the contractual partner.
Barix provides support to the contractual partner by telephone or
email in connection with the use of SoundScape during on-call times at Barix's headquarters (Monday through Friday from 9 am to 12 pm and 1 pm to 4 pm (CET)/except for official holidays, at Barix's location) via the phone numbers or email addresses listed on Barix's homepage. Hotline and email support services are rendered based on the availability of Barix's associates; therefore, Barix does not guarantee that an associate will be available for the provision of respective services during on-call times.
Barix shall be entitled to change the on-call times with 30 days prior notice.
Delivery and installation of terminal equipment as well as guidance or training of contractual partners are not provisions of the contract.
Place of performance shall be the computer center where SoundScape is hosted. Barix's responsibility for its services ends at the router port of the computer center.
Barix shall be entitled to use third parties for the provision of agreed services.
The contractual partner agrees to carry out the following cooperation obligations:
If the contractual partner breaches its cooperation obligations, Barix is entitled to reimbursement of its additional expenditure; agreed deadlines shall be automatically extended, as applicable, by the length of time for which such circumstances delay the fulfillment of cooperation obligations. If the contractual partner defaults, Barix can proceed in accordance with the respective applicable statutory provisions.
After receipt of payment of the first monthly fee pursuant to clause 11.1, Barix grants access to SoundScape normally within two business days and provides login information to the contractual partner.
During the term of the contract, the contractual partner is obligated to notify Barix immediately via Hotline about discovered defects pursuant to clause 3.3.4 and to describe them in detail.
Barix will correct defects at its own discretion by providing updates or a new release, or by communicating a reasonable alternative solution. If Barix is unable to correct a defect of SoundScape, even after a reasonable period for remediation has been specified several times in writing, the contractual partner has the right to terminate the contract by written notification. Already paid subscription fees shall not be refunded.
Barix does not guarantee that SoundScape can be used at any time without interruption and without errors.
The warranty is excluded in case of defects and operational interruptions, for which Barix is not responsible, such as force majeure, failure of communication links, improper as well as incorrect or inappropriate use of SoundScape or the devices. The contractual partner has no additional defect rights with the exception of those expressly specified in clause 8.1 above.
Every incident involving breaches of contract and their legal consequences as well as any claims from the contractual partner are regulated finally and completely in these GTC. In particular, any claims for compensation not specifically mentioned and any reduction or cancellation of the contract are excluded.
Any liability for any direct, indirect or consequential damage such as
reduced profits, extra expenditure, the contractual partner's staffing costs and unrealized savings, for damage caused by subcontractors, claims made by third parties or the contractual partner's customers as well as damage resulting from loss of data is explicitly excluded. This limitation of liability also applies to any non-contractual liability.
All exclusions of liability are invalid in case of illegal intent or gross negligence on Barix's part; however, they are valid with regard to illegal intent or gross negligence by auxiliary staff.
The contractual partner or its customers shall be obligated to prevent any unauthorized third parties from accessing SoundScape by taking appropriate precautionary measures.
The contractual partner and its customers further agree to use SoundScape only lawfully and, in particular, not to store any illegal contents on Barix's server or use it to stream or distribute contents. Barix is not obligated to verify the respective contents for possible legal violations.
The contractual partner shall indemnify and hold harmless Barix from claims of third parties, court and other costs and compensation for damages (including attorney fees) caused by the contractual contractor's failure to fulfill contractual or legal obligations.
Barix has the right to block access to SoundScape if the contractual partner or its customers use SoundScape in an unlawful manner or if Barix can in good faith assume this to be the case.
The contractual partner shall transfer the provisions of this clause to its customers.
The contractual partner pays a monthly usage fee, which is determined by the number of devices managed with SoundScape ("Device Fee") or, if applicable, by a system fee ("System Fee"). The fees are listed in the Online Shop (http://www.barix-soundscape.com) and are agreed for services in the order confirmation or invoice.
The value-added tax (VAT) shall be added to the monthly fee. The contractual partner bears the costs for export, transit and import permits, custom duties, fees, etc. If such costs are paid by Barix, they must be reimbursed to Barix by the contractual partner. As a rule, invoices are issued via email.
Insofar as the contractual partner manages more than the agreed number of devices with SoundScape or requires more data volume per device than agreed, the contractually agreed usage fee will automatically increase pursuant to the price list for SoundScape at www.barix-soundscape.com. Barix is entitled to debit the newly effective monthly fee from the contractual partner's credit card on file or to send an invoice. A reduction of the managed devices or of their data volume and thus of the monthly fee is only possible by means of partial termination pursuant to clause 14.2.
The contractual partner is obligated to pay the agreed fees for the first time within eight days of the date stated on the order confirmation or invoice ("invoice date"). In the subsequent months, the contractual partner shall pay the fees in advance, by the respective calendar day of the invoice date for the next service period ("performance period"), which begins the following day. After this date, the contractual partner will be deemed to be in default without notice .
If the contractual partner defaults in payment, Barix can block access to SoundScape without further reminders until the contractual partner has paid all outstanding fees. Barix is also entitled to proceed according to statutory provisions.
If the contractual partner fails to meet the terms of payment, it must pay, from the time payment is due, without receiving a reminder, 5% late payment interest.
Barix shall be entitled to increase the monthly fees with four months prior notice by the beginning of a monthly performance period, at its own discretion, by no more than 15% per calendar year. If the contractual partner does not agree with the increase, it can terminate the contract, complying with the due termination notice pursuant to clause 14.
The contractual partner is not entitled to offset any counterclaims against Barix's claims.
The provision of Barix's services is suspended as long as obstacles exist which prevent, completely or in part, the provision of services and which are beyond Barix's control, such as natural disasters, mobilization, war, unrest, epidemics, accidents and illness, operational disruption at Barix's facility or that of its subcontractors, missing import and export permits, labor conflicts, late or faulty supplies as well as measures taken by the authorities.
Barix agrees to treat personal data of the contractual partner confidentially, to use personal data exclusively for the fulfillment of this contract and to prevent third parties from gaining access, either wholly or in part, to this information, unless these third parties are engaged to assist in the performance of contractual obligations.
Barix will use the information provided by the contractual partner for contract management, for the identification of a user during registration, for payment processing as well as the delivery of newsletters. When handling personal data, Barix will act in accordance with the laws and regulations governing data protection in Switzerland to prevent unintentional change, destruction or disclosure of personal data.
Barix shall be entitled to review user activities, randomly and to the full extent permitted by applicable law. This may, for example, also include logging IP-connection data and reviewing streamed contents.
The contractual partner or the users of SoundScape can at any time receive information in written form from Barix about their stored personal data and request to have wrongly stored personal data corrected. For this, they need to contact the contact address listed in the legal notice. Barix is always available to the contractual partner or SoundScape user to answer additional questions regarding this clause pertaining to data protection and processing of their personal data.
14.1 Termination of contract
Subject to the provisions for the extraordinary termination in these GTC, both parties are entitled to terminate the contract with three months prior notice by the end of each monthly performance period.
14.2 Partial termination of contract with regard to the number of managed devices or data volume
The contractual partner is entitled, to terminate the contract with regard to any number of devices or their data volume with three months prior notice by the end of each monthly performance period. In that case, the new monthly fee is from that time on determined according to the price list for SoundScape at www.barix-soundscape.com, based on the devices that will continue to be managed with SoundScape or based on the data volume for these devices available to the customer.
Barix shall at any time be entitled to amend these GTC with four months prior notice. If the contractual partner does not agree with the change, it can terminate the contract in compliance with the contractual termination notice pursuant to clause 14.
Barix has the right to deliver notifications (such as terminations) to the email address submitted by the contractual partner during login. Delivery of the email shall be deemed to have been made when the email has left Barix's mail server. Notifications are to be directed to Barix in written form to the following address: Barix AG, Ringstrasse 15A, CH-8600 Dübendorf.
This contractual relationship is governed by Swiss substantive law (excluding the regulations of international private law and the Vienna Convention on Contracts for the International Sale of Goods, SR 0.221.211.4). Zurich is the exclusive place of jurisdiction. However, Barix is also entitled to apply to the court at the place of the contractual partner's registered office.
Zurich, May 2016