Terms and Conditions for Telio SA

1 Terms and Conditions for Telio SA

These Terms (“the Agreement”) apply for Telio SA's supply of a subscription service with appurtenant supplementary services ("the Service") relying on and leveraging IP networking technologies. The Service provides, via inter alia access to specialized software and a database, the entity or person registered as customer ("the Customer") the possibility of user-friendly IP to IP communication services and data exchange.
The Service does not by itself provide any opportunity for interconnection with traditional, electronic communication networks. For such interconnection, the Customer may enter into agreement with local suppliers of such services.

For customers in Norway : The above means that the service provided by Telio SA can not be regarded as an ECS-service (“Ekom-tjeneste”), and that any legal rights and obligations following such service do not apply for Telio SA. Instead the Terms and Conditions for Telio SA and applicable genereal consumer protection laws regulate the delivery of the services of Telio SA.

Telio SA (“Telio”) is a company having its registered seat in Switzerland, Thurgauerstrasse 40, CH-8050 Zürich.

Access to the Service presupposes the use of equipment that loyally implements the prevailing IETF standards and which are approved for use for Telio’s Services.

For consumer relations, these terms apply to the extent mandatory consumer laws and regulations do not determine otherwise. If mandatory consumer laws decide otherwise than regulated herein, such laws and regulations will prevail.

2 Conclusion of agreement

An agreement with Telio may only be entered into by business entities or private persons of full age. The Customer is liable for other persons that are given access to the Service via the Customer. It is also a condition that the Customer has a valid business registration number, personal identity number or a temporary personal identity number.

The Agreement will become enforceable once the Customer has made an order orally, in writing or electronically and Telio has confirmed such order in writing/electronically with reference to these Terms and Conditions.

Telio reserves the right to make a credit assessment of the Customer prior to the implementation of the Service. Telio may refuse to enter into an Agreement and hence supply the Service if the Customer is subject to a black mark on his/her credit report, if other matters indicate a failing will or ability to pay, or there otherwise is a reasonable foundation for expecting that the Customer will default on this Agreement in another way.

The Customer accepts that deliveries may be commenced immediately following Telio's confirmation of the order and before the expiry of any local statutory cooling-off period, see section 4.

3 Transfer

The Agreement between Telio and the Customer may not be transferred without Telio's prior written consent.

In consumer relations, transfer to a member of the same household can only be denied if based on reasonable grounds.

In cases of transfer between entities within the same group of companies, mergers, acquisition and similar, consent may not be unreasonably withheld.

Telio may transfer all or parts of its rights and obligations arising under this Agreement without Customer’s approval.

4 Cooling-off period

In cases where the Customer is to be regarded as a consumer, the Customer is entitled to cancel the Agreement by giving notice of this to Telio no later than the cooling-off period pursuant to consumer law in the country of the Customer.

Where the cooling-off period entitlement is used, the parties liability to perform the Agreement ceases.

If supply of the Service is commenced before the expiry of the cooling-off period, and the Customer makes use of the cooling-off period entitlement, the Customer must pay the expenses incurred in respect of periodic fixed charges and use during the period up to the Agreement is considered to have ceased.

If the Customer should make use of the cooling-off period entitlement, the Customer is responsible for returning all equipment received (if any), and any reimbursement to the Customer will not take place until the Customer has returned all the equipment.

This provision does only apply to the extent that it is not regulated otherwise in applicable mandatory consumer law.

5 Safekeeping and use of customer information

Telio collects, processes and uses certain information related to the Customer, including i.a. the Customer’s name, address, telephone number, e-mail address and traffic data. The information is collected directly from the Customer when ordering the Service and during the Customer’s use of the Service. The information will be used only for the purpose of fulfilling and managing the Customer relationship, including delivery of the Service and invoicing. All information will be processed and kept in accordance with applicable personal data protection legislation.

Telio may not disclose customer information. Disclosure of customer information may nevertheless take place:

• if the Customer has agreed in writing to such disclosure
• if Swiss or local law orders such disclosure
• as part of debt collection
• as part of accounting procedures
• pursuant to an order from a competent public authority.

Without such consent as stated above, Telio is entitled to deliver address information through the publication of printed or electronic catalogues or through an information service for simplified and/or more user-friendly SIP based communication between data terminals. The same applies to delivery to other businesses, as for example Free World Dialup, which are going to issue catalogues or establish information services for simplified and/or more user-friendly SIP based communication between data terminals. The Customer may reserve the right to refuse such listing by contacting Telio.

Information about the Customer will be deleted when it is no longer necessary to retain it for the purposes described above. Information which has been registered for invoicing purposes will be deleted to the extent this follows from applicable law and regulations. If an invoice has not been paid or a legal dispute about the obligation to pay has arisen, the information may be kept until the claim has been settled or is legally decided. After payment of the invoice, name and address of the Customer and the amount may be stored.

Subject to applicable personal data protection legislation, the Customer may request access to personal data that is processed by Telio and may request information about how the personal data is processed by contacting Telio. If the registered personal data is incorrect, incomplete or not relevant the Customer may also demand the personal data be rectified.
Telio SA is responsible for the processing of Customer information as described above.

Notwithstanding the foregoing, under the Swiss Federal Data Protection Law (“FDPL”) in its amended version which entered into force on January 1st, 2008, it is no longer necessary to notify the export abroad of personal data to the Federal Data Protection and Information Commissioner (“FDPIC”). However, as a rule, the transfer abroad of personal data is prohibited if the country of the importer does not have adequate level of data protection. The FDPIC has published a non-binding list of countries having an adequate level of protection, where personal data of the customer could be transferred without requesting the consent of the latter.
http://www.edoeb.admin.ch/themen/00794/00827/

By entering into this Agreement, the Customer accepts and consents to Telio’s processing of customer information as described in this provision.

6 Secrecy

Telio is under a duty to observe secrecy with regard to the Customer's use of the Service and the contents of the telecommunication traffic. Courts of law, prosecuting authorities and other public authorities may nevertheless receive such information if a decision has been made for delivery based on legal authority. The Customer acknowledges that Telio can not guarantee the confidentiality for interconnection with traditional, electronic communication networks as such secrecy can only be maintained by local suppliers of such services.

7 Prices

The prices for the Service are stated in Telio's price list in force at all times and available on Telio’s website.

Telio is entitled to adjust the prices for the Service by giving one month’s notice. Information on an invoice or a special notification by e-mail with information on the new prices for the Service is considered to be such notice. The Customer's use of the Service after the price adjustment has entered into force will be considered as acceptance of the new prices.

Price changes in favour of the Customer will not be subject to a special notification.

8 Payment conditions and invoicing

8.1 Payment conditions

The setting-up of access to the Service will be invoiced in advance, and the invoice must be paid before the Service is set up.

Fixed charges and other Services will be invoiced monthly in advance, from the first day the Customer uses the Service or at the latest 14 days after the Customer has paid for the setting-up.

The use of the Service will be invoiced monthly in arrears. Additional invoices/settlement of fixed charges and other Services may nevertheless occur.

8.2 Payment conditions - invoice

Invoicing will be outsourced and made by an external cooperation partner on behalf of Telio, and payment must only take place according to invoice. Payment is to take place no later than by the date stated on the relevant invoice, normally 14 days from the invoice date. Should the provisions on correct payment not be complied with, additional administration costs may be charged to the Customer.

Invoices are sent by mail unless otherwise especially specified. If the Customer has agreed to receive the invoice by e-mail, the Customer is responsible for notifying the correct e-mail address and for being able to receive e-mails with invoices at such e-mail address.

8.3 Payment conditions – credit card

Invoicing by credit card will be outsourced and made by an external cooperation partner on behalf of of Telio. The amount spent by the Customer will be charged the credit card registered by the Customer when ordering the Service. Such debiting will be recurring each month the Customer uses the Service.

The Customer is responsible for notifying the correct credit card number at all times.

8.2 Credit limit

Telio reserves the right to block the Service without prior notification if outstanding invoice amounts that are registered exceed Telio standard credit limit for the Customer.

Should the credit limit be exceeded, the Customer will be notified with a proposal to reopen the subscription against satisfactory security for outstanding payments.

If the Customer wants an extended credit limit, a special agreement must be entered into relating to this, e.g. in the form of a deposit agreement or another agreement that is satisfactory to Telio.

9 The Customer's obligations

9.1 Change of address

The Customer must immediately notify Telio of any changes regarding the Customer that are of significance to the subscription, including change of address (address, post and e-mail) and similar.

9.2 Use of the Service

The Customer is responsible for its own use of the Service and that of other persons if these are getting access to the Service via the Customer. The Customer must immediately inform Telio if other persons breach the terms and conditions of the agreement with Telio.

The Service may only be used by the Customer and cannot be sold, rented, let or in any other way transferred or pledged. The Customer has no right to resell the Service without a written agreement with Telio.

The Customer undertakes not to break electronic barriers, locks or codes or in any other way obtain unauthorized access to other services, information, data, or systems not meant for the Customer in defiance with applicable penal legislation. Nor may the Customer use, exploit or disseminate information that is not meant for the Customer or to which the Customer has gained unauthorized access.

The Customer undertakes to at all times ensure that neither the Customer nor any of the Customer’s representatives, spread virus by installing received software in hardware that is not protected with antivirus software. Telio is not liable for loss of data or other consequences of the Customer loosing data or otherwise encounters problems as the result of virus.

The Customer is also responsible for ensuring that unauthorised persons are not given access to any additional services and must ensure that no one makes any unlawful or in other respects unauthorised use of any additional services, or any part of the software used for the Service or any additional services. Telio is not liable in any way, including for loss of data or other consequential loss occurred as a result of the Customer giving other persons access (user name/password) to any account used in connection with any additional services, or otherwise contributes to any form of unauthorised use.

It is furthermore the Customer’s responsibility that no data is being stored or files being shared in any form that contravenes provisions laid down by relevant authorities or laws and regulations. If such storing or file sharing as described hererein is discovered, Telio is entitled to close down the access and as the case may be provide the relevant authorities with information about and access to the stored data.

Any breach of this provision relating to the Customer's use of the Service or any additional services is considered as a breach of the Agreement and may thereby entitle Telio to terminate this Agreement pursuant to Clause 13.3 below and claim compensation.

9.3 Broadband network and other equipment

The Customer is responsible for obtaining a working public or private broadband connection that is necessary in order to use the Service by the help of standard Internet protocols.

The Customer is responsible for any supplementary equipment in the local network that is necessary for using the Service.

9.4 Exceeding the storage capacity, deletion of data and closing down of additional services.

The amount of data that can be stored follows from the capacity agreed at all times. If the Customer uses more capacity than what is agreed, the Customer must delete data to the extent that the agreed storage capacity is complied with. The Customer will be notified of any excess and must have removed the necessary amount of data or have ordered additional storage capacity (supplementary package) within the 14 days deadline.

A corresponding duty to delete applies where the Customer cancels additional storage capacity (supplementary package) and the Customer following the cancellation has more data stored than originally agreed.

If the Customer does not delete the surplus stored data within the deadline, the Customer will be invoiced for excess use according to the price list in force at all times and available on Telio’s website.

10 Telio’s obligations

10.1 Delivery

Telio shall deliver the Service ordered by the Customer according to the terms and conditions of this Agreement.

Telio reserves the rights to close down and terminate the delivery of the Service if circumstances arise that make this necessary.

10.2 Customer service

Telio provides customer service via e-mail and telephone. Payment for use of this service is included in the subscription fee.

Telio is not liable for loss of earnings or other loss caused by the Customer or the Customer's representatives using Telio's customer service.

11 Errors or defects in the Service

11.1 Complaint

In case of errors or defects in the Service, the Customer must notify Telio within reasonable time after the Customer discovered or ought to have discovered the error or defect.

A complaint regarding an invoice must be submitted within the expiry of the due date for payment. The invoice does not fall due for payment for as long as the case is being dealt with by Telio. However, Telio may ask for a temporary payment based on the Customer's previous average use of the Service, or based on an averagely calculated use of the Service by similar customers, if no history relating to the relevant Customer can be found.

Telio is not liable for interruptions caused by factors outside of Telio’s control, such as the broadband connection, the Customer's own equipment, disruptions of the electronic communication networks maintained by local suppliers of such services, public regulations, war, fire, electrical outage or other force majeure events.

Where the erroneous use or negligence is caused by the Customer or anyone for whom the Customer is liable, or where an error is due to external influences, the Customer must himself/herself pay for trouble shooting and repair.

11.2 Remedy

Telio shall implement measures to find and remedy any error in the Service as soon as possible after having become aware of such error.

11.3 Price reduction

If the Service or material single services cannot be used due to an error in the Service, the Customer may claim a price reduction according to ordinary contract law principles. A price reduction is not granted for interruptions that are caused by errors in equipment which is not the property of Telio. Similarly, no price reduction is granted if the error is due to or is to be found in the Customer's own local network or broadband connection. A price reduction is not granted if the Customer has been the cause of an error in or damage to Telio's equipment or the error/damage is otherwise within the Customer's area of liability.

11.4 Compensation

Telio’s liability as a result of errors or defects in the Service is limited to the fixed charge for the month concerned, and shall not include any indirect or consequential damage. This provision shall apply to the extent it does not contravene applicable mandatory Swiss law or applicable local mandatory law.

Telio is not liable for any loss or damage which may directly or indirectly be traced to unauthorised use of the Service or of the Customer's equipment.

The Customer is liable for Telio’s loss or damage caused by disruptions from the Customer's local network.

12 Periodic interruptions or restrictions on use

Telio is entitled to implement measures that may cause interruptions, disturbances or changes to the Service which are considered necessary for technical, safety, maintenance or operational reasons. Telio is not liable for costs or loss that the Customer may suffer as the consequence of such measures. Telio will endeavour to give notice of such measures in advance and use its best efforts to make the nuisance to the Customer as little as possible.

If interruptions and disturbances in the Customer's broadband access to the Internet arise, this will automatically also lead to interruption and disturbance of Telio's services. Telio has no liability for operational disturbances at the Customer's broadband supplier.

In emergency situations, including force majeure, serious threats to health, safety and/or the environment, acts of God, war or warlike conditions, extensive strike and lockout, and serious danger of sabotage against networks and services, Telio is entitled to implement interruption or limitation of the Service as well as to cut off the access to the Service for new Customers.

Telio is not liable for any loss, direct or indirect, which may be incurred by the Customer as the consequence of the aforementioned measures. If the performance of material parts of the Agreement is impeded for more than three months based on circumstances as stated above, either Party may terminate the Agreement with immediate effect.

13 Breach of contract

13.1 In general

Neither Party is liable for performing its obligations where this is prevented by factors that according to normal rules are considered as force majeure.

13.2 Default on payments

In case of late payment, default interest will accrue. In case of failing payment, a reminder charge will accrue. In addition, Telio may claim payment of costs related to out of court collection of the claim according to relevant law and appurtenant regulations. The default interest and the reminder charge will be calculated in accordance with the laws and regulations in the country of the domicile of the Customer.

Where payments are not made or delayed, Telio is entitled to close down the Service on or after the expiration of the payment date on the relevant invoice. The Service will remain closed until payment is registered by Telio.

If the Service is closed or the Agreement has been terminated due to non-payment, Telio may refuse to enter into a new agreement with the Customer or another member of the same household or entity.

13.3 Termination for breach

In case of material breach of the Parties’ obligations, the Agreement may be terminated without prior notice and with immediate effect.

If the Agreement is terminated, the Customer is obligated to compensate any loss that Telio has suffered as the result of the breach. If the Agreement has been terminated, Telio is entitled to refuse new access for the Customer to the Service.

If Telio terminates this Agreement, the Customer is obligated to pay all invoices, due or not, as well as interest, administrative and collection charges.

13.4 Reopening

If the Service is closed following a breach on the part of the Customer, Telio may impose a fee for reopening the Service according to the prevailing price list available on Telio’s website.

14 Termination

The Customer may terminate this Agreement by giving written notice to Telio. The Agreement will be terminated with effect upon the last day of the month following the month during which the notice of termination was received.

However, the Agreement may not be terminated by the Customer until any lock-in period has lapsed. A closed subscription cannot be reactivated later than 30 days after the termination date.

The Customer is entitled to give notice of termination of any additional service with immediate effect.

No refund is given for setting-up charges or fixed charges in the event of termination or closing.

Telio may terminate the Agreement with effect for the Service and/or any additional service by giving 3 months’ prior notice. However, termination of the IP to IP communication service subscription from Telio always entails a simultaneous termination of additional services.

Telio has the right to terminate this Agreement with immediate effect or temporarily close the Service if the Customer acts in contravention of the prevailing public law rules for telecom services or misuses the Service, including use of the Service for harassment. The same applies if the Customer's equipment causes disturbances in Telio's technical installations.

15 Governing law and jurisdiction

Unless otherwise regulated in local mandatory consumer legislation, this Agreement is governed by Swiss law, excluding any conflict of law provisions thereof.

The Parties shall try to solve any dispute between the Customer and Telio amicably. If this is not feasible, and subject to mandatory consumer legislation, any and all litigation to which this Agreement may give rise shall be subject to the exclusive jurisdiction of the competent Authorities and Courts of the Canton of Zurich, venue being Zurich, with reservation of the right of appeal to the Swiss Federal Court in Lausanne. The Parties hereto submit hereby to the jurisdiction of said authorities and Courts.

16 Amendment of the terms and conditions

Telio is entitled to amend the terms and conditions in this Agreement at any time. Information on the changes to the terms and conditions will be made available via invoices, web and/or e-mail and such changes will be considered approved unless Telio receives an objection in writing within a period of one month after such communication was made by Telio. The Customer will only be notified of material changes and changes that are unfavourable to the Customer.

17 Entering into force

These terms and conditions shall enter into force on 01.11.2009.