End User License Agreement (EULA) and Terms of Service.

1. Contract conditions

1.1. Validity of EULA/TOC

These End License Agreement (EULA) and Terms and Conditions of services (EULA/TOC) shall apply in the current published version on www.SmartWebhosting.ch for the legal relationship between the Capricorn IT Group and the customer for all contracts for the provision of services by Capricorn IT Group for the customer. Notably also for services due to contract changes/additions or additional orders, even if the terms are not renegotiated. Exempted from the validity of these End License Agreement (EULA) and Terms and Conditions are services for which Capricorn IT Group expressly declared derogations as applicable, at example Services for the web design. Business, shopping or other conditions of the customer are not part of the contract, except these would be explicitly acknowledged by Capricorn IT Group in writing.

1.2. Third Party Terms

For utilization of optional domain services, the customer has to follow the guidelines of the respective providers: endings CH/LI/COM/NET/ORG/INFO/BIZ/NAME/DE/ AT/EU/ME/MOBI/TV etc.

1.3 Deviations/changes

Deviating from the EULA/TOC or additional agreements to these, have only validity if they have been expressly agreed by the parties in writing (exchange of e-mails is sufficient). Capricorn IT Group can change these EULA/TOC at any time and without giving reasons. The amended EULA/TOC are coming into effect, upon the date that is determined by Capricorn IT Group. Capricorn IT Group will publish changes at least 1 month before they come into effect on www.smartwebhosting.ch. If the customer does not agree with the changes, he has the right to terminate the contract extraordinary in pursuance of the listed below number 5.4.

2. Beginning and end of contract

2.1. Commencement of contract

The contractual relationship will come into being with the deployment of services for the customer on the part of Capricorn IT Group based on the customer’s order. According to the product information on www.smartwebhosting.ch.The order can be submitted by email, online-form or signed document. The order is binding for the customer. The provision of services would be confirmed to the customer by e-mail. This date is considered as start of the subscription or beginning of the contract. For some products, Capricorn IT Group can ask for obtaining a payment confirmation or receipt of a payment, before the provision of services starts. Capricorn IT Group reserves the right, to dislike an order without giving any reasons, respectively to count an order as terminated if there is no payment receipt within two weeks.

2.2. Contractual duration

The first contract length (subscription length) is determined by the customer itself. While ordering, the contract length can be selected within the runtime versions, offered by Capricorn IT Group. At the End of the first subscription period, the contract will be automatically renewed for the same subscription period, offered for that product from Capricorn IT Group, unless was terminated at least 30 days before the end of the current subscription period of one of the parties. The right for an extraordinary termination by either party in accordance with number 4.5 or 5.4 is reserved.

2.3. Consequences of the termination of the contract

Capricorn IT Group is entitled upon termination of the contract to delete all customer data on the systems of Capricorn IT Group. The customer is responsible for the timely backup of his data prior to the termination of the contract by itself. In the case of an extraordinary termination without notice, Capricorn IT Group will delete the data only after a 10-day safety period from the date of termination of the contract.

2.4. Options

Subject to any explicit agreements, apply at SmartWebhosting.ch published prices. If at SmartWebhosting.ch nothing else is stated, the prices are in CHF and include service charges, taxes and duties, especially including value added tax.

3. Payment

3.1. Prices

Subject to any explicit agreements, apply at www.smartwebhosting.ch published prices. If at www.smartwebhosting.ch nothing else is stated, the prices are in CHF and include service charges, taxes and duties, especially including value added tax.

3.2. Price changes

Capricorn IT Group reserves the right to change prices at any time. Such changes are only valid after the next renewal of the subscription period for ongoing contracts, regardless of whether the price change will be to the advantage or disadvantage of the customer. The modification respectively introduction of taxes or duties authorized Capricorn IT Group without notice to adjust their prices (also with effect for an ongoing subscription period).

3.3. Invoicing, payment term, delayed payment

The invoice will be issued in the form and sent to the billing address that the customer mentioned with his order, or that he specified later according number 5.5. Basically, a pre-payment is required. The 30 days payment deadline starts from the invoice date. If there are no objections to the invoice within the payment period, the invoice shall be deemed approved. In the case of a contract extension, the following period will be invoiced, approximately 30 days before the current subscription period ends. If none or only a partial payment until the end of the payment period follows, the customer is automatically default in payment and owes the statutory interest, the fees to cover the dunning cost and where applicable the collection rates. Additionally he owes the court costs and attorney fees. If after the payment reminder no payment follows, Capricorn IT Group is entitled, in accordance with number 4.5 to discontinue its service provision or to terminate the contract without notice or compensation extraordinarily.

3.4. Method of Payment

The payment method will be determined by the customer itself after receipt of the invoice, within the given selection (bank transfer, credit card and any other).

4. Rights and obligations of Capricorn IT Group

4.1. Services

Capricorn IT Group is responsible for the performance of services as they were agreed in the contract with the customer, according to the actual product description as they are published on www.smartwebhoting.ch. In the way of doing these services, Capricorn IT Group is non attached in all respects. For example, domestic and foreign companies as well as third parties can be consulted. Capricorn IT Group is also free to make changes related to the services. If a service is affected by a change in its essential properties and the customer does not with agree this, he has the right to extraordinarily terminate the contract in accordance with number 5.4.

4.2. Messages

Capricorn IT Group is authorized to direct all communications by email to the customer, including (but not exclusively) product announcements of technological innovations or maintenance work, payment reminders, provision certifications, terminations, notices for identification and of access, etc. If Capricorn IT Group just has a contact address, that doesn't have validity since customer's order, Capricorn IT Group is justified to do additional queries with which the contact can be assigned as clearly authorized (by the admin interface that Capricorn IT Group provided, public WHOIS database for domain names, etc.).

4.3. Intellectual Property

All rights on existing intellectual property or on intellectual property which accrues during the performance of the contract and which is in connection with the services and products of Capricorn IT Group remain exclusively at Capricorn IT Group or at potential authorized third parties. For the duration of the contract the customer has just a non-exclusive legal right of use in its scope and as far this is necessary to use the services of Capricorn IT Group conventionary and in accordance with regulations.

4.4. Confidentiality

Capricorn IT Group is not obligated for confidential treatment of data and information from the field of customer. Except where this data are clearly identified as confidential. There is no obligation of confidentiality respectively this shall be forfeit if for data and information that at point of time when they have been forwarded or made available to Capricorn IT Group are well known already respectively if they will get well known during the duration of the contract. If the customer has special requirements regarding the confidentiality of his data and information, this is has to be regularized in a separate confidentiality agreement.

4.5. Right for cessation from services and for extraordinary termination by Capricorn IT Group In cases of continuing delay of the customer despite a reminder, Capricorn IT Group is entitled according to number 3.3. or in cases of breach of an obligation under number 5 and 6.4 by the customer for immediate hiring their services or to block or remove the relevant customer account, server, service, content, program, etc. For these sanctions, it is irrelevant if the delay or the breach of an obligation was intentional, unwittingly or if it was third party negligence. If necessary, the customer can get rid of the sanctions by remedy of the grievances. With this, he has to pay the arising costs separately to Capricorn IT Group that are in connection with the resumption of services costs and expenses. Because of a serious or repeated breach of a duty by the customer, Capricorn IT Group reserves its right for an immediate termination of the contract, as well as for a legal process towards the customer. Capricorn IT Group excludes all liability for all possible damages and other losses towards the customer or third parties, which are based on recruitment of services or extraordinary termination.

5. Rights and obligations of the customer

5.1. Payment

During the contract period, the customer is committed to pay the prices and any applicable charges in accordance with number 3.

5.1.1. Additional work

Workings that do not fall within the range of duties of Capricorn IT Group respectively which are not covered in the applicable catalog of the product services, can be declined by Capricorn IT Group, or can be invoiced separately according to the additional expenditure. For this, the hourly rates that are custom of the trade will be invoiced. In general, this is based on units of half an hour. Among other things, an emergency restart of a dedicated server in the data center on site is an example of such a separately chargeable service.

5.1.2. Traffic

In cases of transgression of the restrictions on volume in a calendar month, for products with limited volume of data transfers, the accrued more traffic will be invoiced in the following month to the customer. For this, the prices are published on www.SmartWebhosting.ch. If there are significant or repeated exceeding of the data transfer volume Capricorn IT Group is entitled to ask the customer for a pre-payment for the amount in height of the anticipated incurred costs, to ensure Capricorn IT Group’s pecuniary claim. If the timely indemnity is absent, Capricorn IT Group is entitled in accordance with number 4.5. to stop its service provision or to terminate the contract without notice or compensation extraordinarily.

5.2. Identification and access resources

Capricorn IT Group provides appropriate identification sources and access (e.g. user name, passwords) for the customer. This allows the customer the access to the services of Capricorn IT Group. The customer is responsible for ensuring that its access permissions and user names will not be disclosed to unauthorized third parties, and that unauthorized third parties are not able to use the services of Capricorn IT Group. If the customer has reason to believe that its identification and/or its access data have been intimated or have been open to unauthorized persons, he has to inform Capricorn IT Group without any delay. Until the time of confirmation of deactivation of the relevant identification and/or access through Capricorn IT Group due to the message of the customer, the customer carries the sole responsibility for all use or misuse of its identification and access.

5.3. Use

The customer is obliged for conventionary use of the agreed services. In addition, he is obliged to use the services in accordance with regulations.

5.3.1. Use by third parties

Beim Wiederverkauf oder der unentgeltlichen Weitergabe von mit den Dienstleistungen der Capricorn IT Group verbundenen Nutzungsmöglichkeiten ist der Kunde verpflichtet, dafür zu sorgen, dass die Dritten die für ihn geltenden Nutzungsbedingungen ebenfalls einhalten. Er haftet für das Verhalten der Dritten wie für sein eigenes Verhalten. Das Produkt Webhosting ist, vorbehältlich ausdrücklicher anderslautender Vereinbarung, ausschliesslich für den Eigengebrauch vorgesehen. Für ein Wiederverkauf von Webhosting bietet Capricorn IT Group nach Anfrage spezielle Angebote.

5.3.2. Limitations

For products without limited volume of data transfer, the operation or the direct or indirect promotion of so-called adult-sites and download sites respectively download-contents is prohibited for the customer. Exceptions are permitted only with the prior and at any time revocable consent of the Capricorn IT Group. IRC services are generally prohibited (including bots, bouncers, etc.), file-sharing services (peer-to-peer, etc.), the sending of unsolicited mass mailings (Spam/Mail bombings, etc.), as well as other activities, which are inadmissible or undesirable according the Netiquette RFC 1855.Furthermore it is forbidden for the customer to run programs or scripts, respectively to operate sites which can affect the system's resources to the detriment of other clients. Additionally the customer is obliged to comply the maximum limit for the memory space that has been defined for the respective product.

5.3.3. Responsibility for information

The customer is responsible for the content of information (texts, images, sounds, computer programs, databases, Audio-/Video-Files, etc.), which himself or third parties by using the services have transferred, retrieved or have deployed for retrieval. This also applies to information (especially links) to such information. In particular, it is not allowed to distribute or making available of illegal or harmful contents (hard pornography, racial discrimination, illegal gambling, illegal copies of music, movies and other copyrighted works, malicious programs such as viruses, Trojans, etc.) within using the services of Capricorn IT Group. Forbidden is also any other use, which directly or indirectly promotes the publication or distribution of illegal contents.

5.3.4. Consequences of improper use

If there are in the point of view from Capricorn IT Group justified indications for an inappropriate use of the services of Capricorn IT Group within the meaning of number 5 or such an use is reported by third parties (example: other clients or authorities), or if such an use is determined by a final judgment, Capricorn IT Group is eligible in accordance with their assessment, to request the customer for legal and contractual use of the services. In accordance with the terms of number 4.5. Capricorn IT Group is eligible to discontinue its provision of services or to terminate the contract without notice or compensation extraordinarily. Capricorn IT Group reserves the right, to notify unlawful, particularly criminally relevant behavior to the competent authorities and to cooperate fully with governmental or judicial investigations.

5.3.5. Indemnity

The customer has to keep Capricorn IT Group harmless for all damages and other losses, which Capricorn IT Group incurred in connection with the nonconforming or noncontractual use of the services, provided by Capricorn IT Group for the customer. The indemnity also includes third party claims as well as applicable process and legal fees.

5.4. Extraordinary right of termination by the customer

Provided that the customer has a disadvantage that arises due to a change in number 1.3. or 4.1. and which would keep him away from the order at the time from the conclusion of the contract; he has the right for extraordinary termination and is entitled to the pro-rata refund of prepaid fees for the current subscription period. This has to be satisfactorily shown by the customer. An extraordinary termination can take place either with immediate effect or with effect from the expiry of a period of 30 days. The final choice is made by the customer is definitely and must be included in the notice of termination. If not specified, Capricorn IT Group may emanate from a termination without notice.

5.4. Contact Information

The customer is obliged to provide his correct contact information (name / company name, email, mailing address) to Capricorn IT Group together with its order. In the case of changes the updated data must be notified at Capricorn IT Group immediately. Capricorn IT Group is not obliged to pay attention to other contact data than that was provided by the customer, or to make inquiries to correct this data. If the contact details are incomplete, inaccurate or out of date and if because of this reason the identity of the customer can be determined only with disproportionate effort, so Capricorn IT Group is entitled, in accordance with number 4.5. to adjust the provision of their services or to terminate the contract without compensation and extraordinary. The same will likely be true for the case that messages are undeliverable to the customer. Capricorn IT Group is also entitled to charge to the customer, all costs that incurred because of outdated, incomplete or incorrect contact information.

6. Privacy and Security

6.1. Data processing

Capricorn IT Group uses personal customer data in connection with the conclusion and execution of the contract (performance of services, maintain customer relations, invoicing, reminders and debt collection, etc.) and for development, design and demand-submission of service offerings in accordance with the provisions of the Federal Law data protection. Within the scope of this data use, Capricorn IT Group is allowed to forward personal data to third parties (e.g. suppliers), even if they are abroad. The customer may prohibit the use of his data for marketing purposes at any time by written notice to Capricorn IT Group.

6.2. Protective measures of Capricorn IT Group

Capricorn IT Group takes appropriate measures to safeguard the proper operation of their technical infrastructure against negative external influences (viruses and other malicious programs and files, unauthorized access to systems and data, etc.). However, Capricorn IT Group cannot guarantee that these measures are effective in every case. Therefore, the customer should not be relied just on these measures to protect his own systems and data. He remains responsible for organizing his own measures towards unauthorized access and external damages, to minimize the consequences of such attacks.

6.3. Maintenance

At any time, Capricorn IT Group is entitled to perform security updates and changes at system components and applications, without having to inform the customer about. At any time Capricorn IT Group reserves the right, if it deems necessary, to perform maintenance work, although that can cause interruptions in the use of the provided services. About planned interruptions, Capricorn IT Group will inform the customer as soon as possible.

6.4. Protection measures by the customer

The customer is obliged to take all appropriate measures so that from his website/e-mail account it cannot be unlawfully interfered in other systems, respectively manipulated programs or computer viruses can be infiltrated from there. If the customer does not compliance this obligation, he has to hold entirely harmless Capricorn IT Group for the consequences (e.g. hacking caused by incorrect or not updated script, circulation of spam via the e-mail account of the customer, etc.).

6.5. Protection of information transmitted

When using the Internet there are different privacy and security risks for the customer. In particular, the privacy and security of data during unencrypted data transfer is not guaranteed. Therefore, the customer must expect that unencrypted e-mails can be read, modified or suppressed by unauthorized third parties. The encryption and encoding of transmitted information can improve the protection of unauthorized access. Firewalls can possibly prevent from unwanted access of non-authorized third parties; respectively they can make the access much more difficult. The undertaking of such measures to improve the data protection is the responsibility of the customer.

7. Warranty and liability

7.1. Warranty

In the provision of its service, Capricorn IT Group observes the diligence, which can be expected under prevailing circumstances. However, Capricorn IT Group does neither guarantee error-free nor the continued provision of its services. Capricorn IT Group is not responsible for the telecommunications infrastructure of network and telecommunication service providers as well as not for the transmission of data. Accordingly Capricorn IT Group is neither liable for the availability and performance of telecommunications equipment and networks nor for error-free, unaltered, complete, uninterrupted and timely transmission of data in telecommunications networks, especially in the Internet.

3.1. Liability

As far as permitted by law, Capricorn IT Group precludes any liability, regardless of the legal reason. In any case, Capricorn IT Group reserves the defense of shared responsibility of the wronged party.

8. Completion conditions


8.1. Partly nullification

Nugatory or legally unenforceable provisions shall be replaced by valid legally provisions, that come in their economic affects as close as possible to the invalid provisions.

8.2. Applicable law and jurisdiction

The contract between the customer and Capricorn IT Group is subject to Swiss substantive law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Exclusive jurisdiction is the seat of Capricorn IT Group.

Valid from 4. September 2000


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