General Terms and Conditions of Bluesun AG for Cloud Hosting Services

1 General

1.1 The contracting parties are Bluesun AG (hereinafter referred to as Bluesun) and the customer (the customer is any natural or legal person who has concluded a contract with Bluesun). For reasons of better readability, the simultaneous use of different gender forms is avoided in the text and the masculine noun form is used consistently. Of course, all genders are always meant and addressed equally.

1.2 These General Terms and Conditions replace the previous General Terms and Conditions of Bluesun, version V2012-07-Hosting, and apply to all contracts, services and products of Bluesun, in particular in the areas of cloud hosting services and consulting.

1.3 Deviations from these GTC are only valid if they are confirmed in writing by Bluesun.

1.4 Unless expressly agreed otherwise, the provisions of these GTC shall apply to all contracts that Bluesun concludes with the customer. Any general terms and conditions of business, purchase, procurement, etc. of the customer shall not apply even if the customer refers to them in its order or order confirmation and Bluesun does not expressly object to them again.

2 Placing of order / components of the contract / services

2.1 Bluesun's offers are always subject to change. A contract shall only come into existence upon the signature of both contracting parties or upon receipt of a written order confirmation from the customer and its acceptance by Bluesun by countersignature or written confirmation or by commencement of the provision of services. Only the content of the contract thus confirmed and these GTC shall form the basis for the provision of services by Bluesun. The scope of the contractual services is set out in the aforementioned contractual documents and their annexes, such as service descriptions and concepts, insofar as these annexes are expressly designated by Bluesun as integral parts of the contract.

2.2 If Bluesun has submitted an individual service offer, this shall be done on the basis of the information provided by the customer about its IT system currently in use, about hardware expansions intended by the customer and/or the technical functional aspects. The customer shall bear the risk that the service offered on this basis corresponds to his wishes and requirements. If the customer wishes to agree binding specifications, he must set these down in writing. They shall only become effective upon countersignature by Bluesun.

2.3 The scope of performance is set out in the information provided by the customer as it is linked or connected to the order form, in particular in the respective brochure, in Bluesun's current Internet offer at the time of the order or in the information enclosed with any other offer.

2.4 The customer selects a specific hosting level when placing the order and receives the corresponding Bluesun Internet services. It is not possible to combine different hosting levels.

2.5 Bluesun guarantees professional provision of the services within the scope of the operational resources available to it. Bluesun may engage third parties for the provision of services. Bluesun undertakes to store an HTML data package(website) to be provided by the customer and to keep it publicly accessible via the Internet.

2.6 Insofar as data is transmitted to Bluesun – in whatever form – the customer shall make backup copies. Bluesun's servers shall be carefully backed up on a regular basis in accordance with the information provided by the customer. In the event that data is nevertheless lost, the customer shall transfer the data concerned to Bluesun's server again free of charge.

2.7 The customer is given the opportunity to independently manage, change or supplement the website stored at Bluesun via a password-protected interface. If Bluesun's services are used in this context or in the context of further maintenance work, these shall be invoiced separately at the usual rates.

2.8 The transmission of such data via the Internet shall be at the risk of the customer and without any liability on the part of Bluesun. The notifications shall be valid upon receipt and shall be used by Bluesun as binding for the performance of the service until new data is received via the Internet. Any delays occurring in this respect are due to technical reasons and are beyond Bluesun's responsibility and therefore do not constitute a defect.

2.9 The functions supported by Bluesun's server systems are set out in an annex to this contract signed separately by the parties.

2.10. The responsibility for the technical functionality of the website provided by the customer lies solely with the customer.

2.11. Bluesun reserves the right to refuse to store the website provided by the customer if a risk to Bluesun's IT systems cannot be ruled out due to its functionality.

2.12. Bluesun guarantees an availability of the hosting services of 99.5 % on an annual average.

2.13. If the guaranteed availability is not achieved, the customer shall be entitled to a pro rata credit note on the monthly fees. The credit note shall be calculated in proportion to the actual downtime on the basis of the monthly fees. A maximum credit of 50 % of the monthly fee is possible.

2.14. The calculation of the downtime shall be based on the server downtimes logged by Bluesun. Scheduled maintenance work and downtime caused by third parties, force majeure or attacks (e.g. DDoS) are excluded from this.

2.15. Bluesun shall inform the customer in good time about planned maintenance work that may lead to an interruption of the service.

2.16. Bluesun reserves the right to temporarily restrict or block the hosting services for security reasons or in the event of breaches of these GTC.

2.17. In the event of non-compliance with this warranty, the customer shall be entitled to a pro rata refund of the provider fees paid; any further liability, in particular for loss of profit, useless expenses, inconvenience, loss of data or other consequential damage, is excluded in full.

2.18. Bluesun may restrict access to the services if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, software or stored data, so require.

2.19. The customer shall bear the costs for the containment or rectification of faults by Bluesun if the customer has requested the investigation and the cause of the fault is attributable to defects or errors in the handling of the equipment used by the customer. These costs shall be calculated on the basis of Bluesun's usual rates and invoiced separately. Bluesun shall not assume any costs for support by third parties.

2.20. Should Bluesun become aware that the customer is sending e-mails under his domain name illegally or contrary to generally recognized rules of communication on the Internet, Bluesun reserves the right to temporarily suspend or permanently block the service. This also applies to transmissions(postings) of advertising or illegal messages in public newsgroups on the Internet. If Bluesun suspends or blocks the service for these reasons, the customer shall nevertheless be liable to Bluesun.

2.21. Bluesun is entitled to delete e-mails received on provided IMAP accounts and POP3 accounts (main addresses for e-mails) 1) after they have been retrieved by the customer, 2) after they have been forwarded in accordance with the customer's instructions, 3) after they have been stored for 60 days.

2.22. Bluesun shall begin to provide the Bluesun Internet Service immediately upon crediting of the first fee invoice issued.

2.23. Bluesun reserves the right to change the fees at the beginning of a new billing period.

2.24. In the procurement and/or maintenance of domains, Bluesun shall only act as an intermediary in the relationship between the customer and the respective organization for domain allocation. Bluesun has no influence on the allocation of domains. Bluesun does not guarantee that the domains applied for on behalf of the customer will be allocated at all and/or that allocated domains are free of third-party rights or will be permanently valid.

3 Remuneration / obligations of the customer

3.1 The customer undertakes to pay an annual fee, due in advance, for the services ordered by him. The fees are to be paid net within ten days. During this period, the customer may raise objections to the fees in writing, giving reasons. If he fails to do so, they shall be deemed to have been accepted without reservation.

3.2 All prices are quoted in Swiss francs (CHF) and exclusive of VAT. For invoices in foreign currencies, the exchange rate on the day of invoicing shall apply. Exchange rate fluctuations will be taken into account in the invoice.

3.3 Bluesun reserves the right to adjust the prices for hosting services annually if this becomes necessary due to inflationary developments, rising infrastructure costs or changes in regulatory requirements.

3.4 Bluesun may make an annual price adjustment based on the Swiss national consumer price index (CPI) if operating costs have increased by more than 5 % compared to the previous year. A price reduction is not automatic.

3.5 The customer shall be informed of price changes at least 30 days in advance.

3.6 If the customer does not agree to a price change, he may terminate the contract in writing within 30 days of notification.

3.7 Bluesun is entitled to adjust the hosting resources (e.g. storage space, bandwidth) if this is necessary to maintain the quality of service.

3.8 Invoices must be paid within 30 days of the invoice date or by the payment deadline stated on the invoice without deductions. If the customer is in default of payment, interest of 5 % per annum shall become due. Bluesun expressly reserves the right to assert further claims or legal remedies.

3.9 The customer may not set off claims against Bluesun against debts owed to Bluesun.

3.10. If the customer fails to meet its payment obligation within the payment period, it shall be in default upon expiry of this period without further reminder and shall pay default interest of 5 % per annum.

3.11. Bluesun is entitled to charge at least CHF 30 plus VAT per reminder. Further fees remain reserved. If the customer has neither paid the fees within these ten days nor raised written objections to them, Bluesun may suspend performance and suspend services.

3.12. Suspended services can be resumed after payment of CHF 100 plus VAT.

3.13. If the customer does not pay the fees within 30 days after the measures have been taken, Bluesun may terminate the contract without notice and compensation.

3.14. If Bluesun terminates the contract without notice because the customer breaches contractual provisions, the customer shall owe Bluesun the outstanding fees and compensation for all additional costs.

3.15. The use of the Bluesun Internet service is subject to the applicable fees as per the order. The customer shall receive an electronic or written invoice for each payment transaction.

3.16. The customer is also responsible for charges incurred by other persons, authorized or unauthorized, via his access code, unless the customer is not responsible for this. The customer shall be responsible for proving that he is not responsible for this.

3.17. In this context, the customer undertakes to store the personal password for his access code carefully and protected from access by third parties and to protect it from misuse and loss. Furthermore, the customer must change the automatically assigned password immediately upon the first dial-in to the Bluesun Internet service and later upon request by Bluesun. The customer shall indemnify Bluesun against any costs and claims of third parties arising from the breach of the above obligations.

3.18. The customer undertakes to ensure that the website provided by him does not contain any elements which he is not entitled to publish for reasons of intellectual property rights or criminal law. Bluesun reserves the right to prevent the public availability of the entire website immediately and without prior notice if it is denied the right to publish individual elements of the website provided by the customer by third parties or authorities or if corresponding legal action is threatened.

3.19. Bluesun reserves the right to disclose the identity of the customer to third parties upon request and to require the customer to disclose his identity on his website. If Bluesun terminates the contract without notice because the customer misuses the services for unlawful purposes, the customer shall owe Bluesun the outstanding fees and compensation for all additional costs. The customer undertakes to indemnify Bluesun against all claims and disadvantages arising from the fact that the publication of its website proves to be unlawful.

3.20. The customer guarantees that the domain applied for does not infringe any third-party rights. The customer shall indemnify Bluesun, its employees and vicarious agents, the respective organization for the allocation of domains and other persons involved in the registration against any claims for compensation by third parties and all expenses arising from the unauthorized use of an Internet domain by the customer or with the customer's approval. Bluesun shall invoice for clarifications and registrations according to the current price list, unless the service is included in the price according to the promotion.

3.21. The customer recognizes the contractual conditions of the registry responsible for the allocation of the domain name.

3.22. The customer is obliged to provide Bluesun with his current data, such as name and address data, at all times and to notify Bluesun immediately in writing of any changes.

3.23. Bluesun shall not pass on any personal data to third parties for marketing purposes without the express consent of the user and shall not trade in the user's personal data. The customer shall be liable for the use of the service agreed with him by third parties as for his own use.

3.24. If, after the conclusion of a contract, there is a significant deterioration in the financial circumstances of the customer which appears to jeopardize Bluesun's claim to remuneration, or if Bluesun only learns of such a deterioration after the conclusion of the contract through no fault of its own, Bluesun may refuse to provide the services owed until the respective remuneration has been paid or security has been provided.

3.25. The customer may only set off undisputed or legally recognized claims and may only assert a right of retention in respect of such claims.

3.26. Bluesun is entitled to assign its claims for remuneration to third parties.

4 Term and termination of the contract

4.1 This contract is concluded for an indefinite period. It may be terminated by either party by giving three months' notice to the end of each quarter. If the contract has been concluded for a fixed term or a minimum term has been agreed with the customer, the contract shall be extended for an indefinite period after expiry.

4.2 If this contract is for the operation of mybluesun software tools, the contract is concluded for an indefinite period. It may be terminated by either party with six months' notice to the end of a calendar year.

5 Data protection & data retention

5.1 Bluesun processes personal data in accordance with the applicable data protection laws, in particular the GDPR and the revDSG.

5.2 The stored data of the customer will be kept for a period of 30 days after the end of the contract. Within this period, the customer may request a data migration or a backup.

5.3 At the customer's request, Bluesun shall provide a backup for a fee within the 30-day period. Thereafter, all data will be irreversibly deleted, unless statutory provisions require longer storage.

5.4 Bluesun shall take all necessary technical and organizational measures to protect the stored data against unauthorized access, loss or misuse.

5.5 The customer is obliged to ensure that it does not store any personal or sensitive data on the hosting services without appropriate encryption or protective measures.

6 Liability for backups and data security

6.1 Bluesun shall carry out regular backups of the stored data in accordance with the agreed SLA standards.

6.2 However, the customer is solely responsible for backing up its data and should maintain its own regular backups outside the Bluesun infrastructure.

6.3 Bluesun accepts no liability for loss of data unless this was caused by gross negligence on the part of Bluesun.

6.4 In the event of data loss, Bluesun shall support the customer to the best of its knowledge and belief, but cannot guarantee recovery.

6.5 Bluesun reserves the right to transfer automated backups to a separate storage area in emergencies, in particular in the event of data integrity problems or security-critical incidents.

7 Security incidents and emergency measures

7.1 The customer is obliged to inform Bluesun immediately of any security incidents, data leaks or unauthorized access to its hosted systems.

7.2 Bluesun reserves the right to temporarily restrict or remove hosting services from the network in the event of a security-critical incident in order to protect the integrity of the infrastructure. As a rule, Bluesun will inform the customer before blocking, unless acute security risks require immediate measures.

7.3 In the event of a security-relevant incident (e.g. data leak, hacking), Bluesun shall inform the customer within 72 hours if personal or business-critical data is affected.

7.4 Bluesun shall carry out regular security checks and may, at its own discretion, implement security-critical measures, e.g. restrict access rights or update affected services.

7.5 If the customer violates security guidelines or uses insecure applications, Bluesun may temporarily block or permanently restrict the affected services.

8 Domains, IP addresses and network usage

8.1 Bluesun acts only as an intermediary in the procurement of domains. Bluesun has no influence on the allocation of domains by the respective registries.

8.2 It cannot be guaranteed that a domain applied for will be allocated or permanently secured.

8.3 Bluesun remains the owner of all assigned IP addresses and may withdraw or reassign them in the event of termination of the contract or technical changes. Assigned IPv4 and IPv6 addresses remain the property of Bluesun and can be withdrawn after the end of the contract or in the event of network changes.

8.4 The customer may not pass on or sublicense assigned IP addresses without Bluesun's prior consent.

8.5 Bluesun reserves the right to prevent abusive or illegal use of domains or IP addresses.

9. Final provisions

9.1 Insofar as Bluesun provides services free of charge, these may be discontinued at any time without prior notice. This shall not give rise to any claim for reduction, reimbursement or damages.

9.2 Bluesun is entitled to amend these GTC periodically. In this case, Bluesun shall notify the customer of the amendment to the GTC in writing. If the customer does not object to the new GTC in writing within 14 days (the date of the postmark shall apply), they shall be deemed to have been accepted by the customer and shall also apply from this point in time to the contractual relationships already in progress between Bluesun and the customer in the area of myblue-sun software tools. If the customer objects to the new GTC, this shall not affect the validity of the existing contractual relationships. These shall continue unchanged.

9.3 The customer may not assign rights and obligations arising from a contract with Bluesun to third parties without Bluesun's prior written consent.

9.4 The legal successors of both contracting parties shall also be bound by the obligations arising from contracts concluded on the basis of these General Terms and Conditions.

9.5 Bluesun shall be entitled to engage subcontractors for the performance of the contract without prior notice to the customer.

9.6 This contract shall be governed by Swiss law to the exclusion of its conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the registered office of Bluesun in Aesch, Canton Basel-Landschaft.

9.7 Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining provisions.

Edition February 2025