Terms & conditions
The purpose of these Terms and Conditions of Use (hereinafter referred to as the “TCU”) is to set forth the terms and conditions under which AS5398’s services are provided and used.
The TCU are agreements made between AS5398 Sagl (hereafter referred to as “AS5398 “), a business with Swiss legal roots based in Lugano, and any private or public entity with a customer account with AS5398 (hereinafter referred to as the “Customer” or “Client”).
The invalidity of any one provision of the Contract shall not in any way affect the validity of the remaining provisions, which shall remain in full force and effect. In this situation, AS5398 agrees to substitute a valid clause that most closely matches the object and purpose of the invalid or unenforceable clause in order to preserve the parties’ original intent.
The parties agree that for the purposes of this Contract, electronic writing is admissible as a form of documentary evidence in the same manner as writing in paper form. It is understood that information from AS5398 ‘s information system or that of its processors, including connection logs, usage data, order and payment summaries, incident management reports, and other information, is fully enforceable against the Customer and admissible in court. The SMTP servers of AS5398 will be considered to have received or sent emails. The Parties will be bound by the date and time of AS5398 ‘s mail servers.
1 Client Account
1.1 By placing an online order for a Service, the Customer certifies that they have already determined whether the Service will meet their needs and that they have gotten from AS5398 all the information and guidance necessary to decide whether to sign up for this Contract.
1.2 To be able to be identified when placing their first order, customers must first create a customer account on the AS5398 Website by providing at least their first and last names, email address, mailing address, and a working mobile phone number (“Contact Details”). The Customer agrees to provide true, accurate, and complete information in this regard, as well as to keep it current in the event of a change. The Customer certifies and guarantees to AS5398 that they have the legal ability and authority to bind and represent the Customer in accordance with the terms of the Contract.
1.3 The Customer acknowledges and agrees that, during their use of the Services, even if this is passive, regular communication with AS5398 is necessary for the efficient performance of the Services. AS5398 will send important notifications via email using the email address provided in the Contact Details provided by the Customer. Any message sent through the customer account that receives no response from the customer within a month of its posting will be regarded as read and accepted tacitly by the customer for the purposes of any follow-up penalties.
1.4 The Customer is informed in this regard that all or some of their Contact Details may be validated by AS5398 to verify the veracity of the information communicated by the Customer or on their behalf, both prior to being able to use their Customer Account and at any time during the Contract. Whenever and however AS5398 deems it necessary, AS5398 will conduct this contact details verification (the “Validation”). If incomplete or inaccurate information is provided, AS5398 reserves the right to activate or deactivate the Customer Account or to immediately terminate the contract if AS5398 determines that this information is fraudulent.
2 Contract’s termination
2.1 This Agreement sets forth the terms and conditions on which AS5398 will provide the Customer with the Services made available through the Administration Console and/or as described on AS5398 ‘s website.
2.2 You must agree to this document and any additional terms and conditions associated with each service before using any AS5398 services. We encourage you to carefully read them. You are not allowed to use the services provided by AS5398 if you do not comprehend or accept them, even in part.
2.3 By using the Services, the Customer may be deemed to have accepted the Special Terms and Conditions, which are cumulative with the TCU. If there is a discrepancy between these documents, they will prevail, and they will also form a contract with the TCU (hereinafter referred to as the “Contract”).
2.4 Through its help pages or blog, for example, AS5398 offers links to other websites. You acknowledge that neither these TCU nor AS5398 have any influence over the information on these websites.
2.5 The Contract includes “The appendix concerning AS5398 ‘s data processing,” which is available in the legal section of AS5398.com.
2.6 AS5398 reserves the right, at any time and without prior notice, to modify these TCU, the Special Terms and Conditions, and the appendices to this Contract. All new orders for Services are immediately subject to these amendments.
2.7 Any modification to the Service Conditions in effect will be communicated to the Customer for Services already in use via email or through their management interface.
2.8 Only thirty (30) calendar days after the aforementioned notification is sent will changes to the Service Conditions become effective. However, because AS5398 has no control over them, changes to Third-Party Product Conditions and legal or regulatory compliance may become effective right away.
2.9 The Customer must stop using the Services provided by AS5398 if they do not agree to the Contract’s modifications.
2.10 If the Customer breaches this Agreement and AS5398 does not take immediate action to address it, this does not imply that AS5398 has waived its rights (e.g. to take action at a later date).
2.11 No matter what Services are eliminated or added as a result of the Special Terms and Conditions’ expiration or termination or the implementation of any new Special Terms and Conditions, the Contract will still be in effect. The Special Terms and Conditions that apply to other Services will not be impacted by the new Special Terms and Conditions. The Contract is fully terminated upon the final closure of the Customer Account.
2.12 Any computer or communication equipment that might be required for the use of a Service is the responsibility of the Customer. The costs associated with the purchase, provision, use, and maintenance of this equipment will be borne by the Customer, and AS5398 makes no representations or warranties regarding the equipment’s compatibility with the Services that the Customer has ordered.
3.1 Credit cards, bank transfers, and PayPal are all accepted forms of payment. On a case-by-case basis, AS5398 retains the right to limit the payment options offered.
3.2 Tasks for chargeable Services won’t get done until the money is in AS5398’s bank account. The customer is responsible for covering all transaction fees. Until full payment has been received, the Customer has no right to the execution.
3.3 The prices for the Services that the Customer is billed for are those that are current at the time of billing and are available on the AS5398 Website. Depending on the Services, AS5398 might suggest various pricing plans (fixed monthly, quarterly, or annual price, consumption price, credit purchase). These may be accompanied by a commitment period and/or a particular billing arrangement, depending on the circumstances.
3.4 Free services can be suspended by AS5398 at any time and/or terminated by the customer at any time through the administration console.
3.5 For natural or legal persons with a billing address in Switzerland or the European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden), the prices proposed by AS5398 include VAT. Except for services that do not require outsourcing, natural and legal persons without a billing address in Switzerland or the European Union are not subject to VAT (e.g. Housing).
3.6 The customer will be notified via email if AS5398 changes its prices at any time without prior notice by posting a new pricing structure on its website. When renewing Services for a new period or placing new orders, price changes take effect right away.
3.7 For as long as the module is active, this additional sum will be charged to your account if you are using a chargeable add-on module or option. An add-on module’s billing cycle might be different from the billing cycle for the relevant service, and some add-one modules might demand upfront payment for the duration of their billing cycle.
3.8 When paying with a credit card, the customer certifies and guarantees that they have the right to use the card(s) that could be charged to cover the cost of the AS5398 Services associated with the customer. The customer acknowledges and agrees that AS5398 is authorized to debit the credit card linked to the payment processor to pay for the AS5398 Services associated with the customer if the customer’s credit card is replaced by a payment processor (such as PayPal) which is also linked to a credit card.
3.9 The issuing bank determines the transfer fees for payments made by bank transfer. These fees cannot be applied to AS5398 and cannot be deducted from the invoice payment.
3.10 Credit Purchase, for use with some Services, you can buy Credits. The Services in question are described in detail at AS5398.com . The Credits will also be permanently deleted and not refunded if you stop using a Service that uses Credits.
3.11 Delays and defaults in payments: AS5398 will have the right to suspend all or some of the Services in question on their expiration date if the Customer disregards reminders to pay for the renewal of a Service prior to its expiration. Any new order or renewal of Services may be declined by AS5398 without consequence to AS5398.
3.12 Within one month of the invoice date, any disagreements regarding billing and the nature of the Services must be brought to AS5398’s Customer Services Department via the Administration Console or the specific form made available at AS5398.com . In the absence of this, and despite the possibility that the Customer may later contest the billing, the Customer is obligated to pay the unpaid invoices in accordance with the terms outlined in the Contract. If a billing error occurs, AS5398 is permitted to regularize the aforementioned invoices within the applicable limitation guidelines.
3.13 When a service is interrupted by a force majeure event or another external factor for which AS5398 is not solely responsible, payments made for the services are not refundable.
4. Contract: terms, renewal and end of it
4.1 The Contract is made for an indefinite period of time and is in effect until either Party terminates it. If the Customer is in good standing with this Contract and AS5398 has been able to unmistakably establish the Customer’s identity, the Customer may terminate the Contract at any time by discontinuing its Services and then the Customer Account in its entirety via the AS5398 Administration Console. The Customer may also terminate the Contract by sending a written notice to AS5398 via registered mail.
4.2 For the time frame that the customer selects when placing the order, AS5398 will provide the Services.
4.3 Through the Administration Console, AS5398 gives the Customer the option to activate or deactivate an automatic renewal option for each Customer Service, preventing accidental termination.
4.4 AS5398 will be authorized to automatically debit the Customer’s payment method at the conclusion of the trial period or renew the relevant Services if automatic renewal is activated in the Customer’s Account or if the Customer is currently taking advantage of a trial and they have already given AS5398 a payment method for the Services. On the day of the renewal attempt, a valid payment method must be linked to the customer account in order for this automatic renewal to take place.
4.5 A service that is connected to the automatic renewal option must be anticipated by the customer. In the alternative scenario, the customer is not eligible for a refund. AS5398 is permitted to delete the Customer’s data after the Contract expires. The Customer is solely responsible for regularly backing up their data.
4.6 The customer is aware of and agrees to the possibility that the fees for the Service that will be charged at the time of the automatic renewal may be different from those incurred at the time of the initial order. As a result, it is the Customer’s duty to frequently check the AS5398 website, take note of any potential price changes that may be relevant to each of the Services for which this option is activated, and deactivate this if necessary. If the automatic renewal option is still active on the day of the renewal attempt, the customer will be taken to have agreed to the new prices.
4.7 If the payment method associated with the customer account prevents the automatic renewal from going through, AS5398 will notify the customer via email sent using the contact information they have on file for their customer account that they must complete a manual renewal.
4.8 The Customer acknowledges and agrees that it is their sole responsibility to link a legitimate payment method to their customer account and that AS5398 will not be held liable if the automatic renewal is rendered impossible due to an invalid payment method not being linked to the customer account.
5 Service suspension
5.1 AS5398 reserves the right to suspend all or some of the Services, the Customer Account, and subsequently the Customer’s access to the Services, immediately and without notice in the event that the Customer breaches one or more of their contractual obligations outlined herein and/or any applicable legal or regulatory provision, or at the request of a competent judicial or administrative authority. This suspension will not give rise to any right to compensation.
5.2 AS5398 reserves the right to suspend the Customer Account and/or Services in the event that the Customer notifies AS5398 of a complaint, action, lawsuit, or other legal proceeding relating to the use of the Services offered by AS5398 .
5.3 The Administration Console may also be temporarily suspended due to AS5398 maintenance, and the suspension will continue until its cause has ceased.
5.4 The suspension of the Services will not result in the suspension of the Customer’s payment obligations and will not entitle AS5398 to payment of any compensation, including compensation for any direct or indirect consequences that may result (such as loss of opportunity, contracts, business, income, or profits), or subject AS5398 to AS5398’s liability under the terms outlined in the “Liability” section.
5.5 Service interruptions do not result in the deletion of the Customer’s data unless they are solely the result of a AS5398 security breach. The aforementioned suspensions will take place without affecting AS5398’s right to terminate the Contract under the terms outlined in the “Termination” section if they result from a breach of the Customer’s obligations.
6 Service termination
Regardless of whether the customer uses the services or not, any suspension, termination, or removal of a service under the terms outlined in this article will not result in compensation for the customer. AS5398 will keep all money that the customer has paid.
6.1 If a service is not renewed before it expires, it may be terminated automatically, at the customer’s request, or at any time without warning through the administration panel. All data that belongs to the Customer must be personally recovered by the Customer before the specified deadline, or AS5398 will permanently delete it.
6.2 If the customer fails to make their payment by the due date, including by cancelling or rejecting their online transaction or by paying an amount that is incorrect, insufficient, or lacking the necessary references when ordering or renewing a Service via bank transfer, the service may be suspended by AS5398 until the price is paid in full within a reasonable amount of time, after which the services affected by this breach may be automatically blocked and/or terminated without AS5398 being held liable for any compensation or damages.
6.3 Termination due to a breach: If any breach by either Party of its obligations under the Contract is not resolved within 10 Business Days of an email sent by the complaining party providing notice of the breaches in question, or any other form of communication specified in the legally binding Contract sent by said party, the Contract will automatically terminate, without affecting any damages or potential interest claims that may be made from the dissenting party. The date that the email notifying of the alleged breaches was sent will serve as evidence. If AS5398 determines it is necessary, it may also inform any competent public authorities (such as the government, police, or supervisory authorities) of any violation.
6.4 AS5398 may also terminate the Contract with the Customer with immediate effect if proceedings have been started against the Customer in the event of bankruptcy or insolvency.
6.5 No prorated refund of the consideration will be given in the event of an early termination of a Service or its add-ons, unless the early termination was due to gross negligence without justification or was incorrectly attributed to AS5398.
6.6 Before any deletion or after the contract’s end, AS5398 is not obligated to keep the Customer’s data or give it back to them.
7 AS5398‘s responsibilities and obligations
7.1 For all AS5398 Services, AS5398 agrees to use the utmost care and diligence in order to provide and maintain the Services in accordance with best practices and technological advancements. Due to the high level of technicality of the Services offered, AS5398 is only subject to an obligation of means in this context.
7.2 If and to the extent permitted by law, AS5398’s liability shall be limited to wilful misconduct and egregious negligence. When providing chargeable services, AS5398’s liability is only as great as what the customer has already paid for the Service in question during the current billing cycle.
7.3 For free Services, AS5398’s liability is limited to cases of minor negligence and an amount of CHF 20 for each individual case or CHF 100 for all cases.
7.4 If limiting access to the Service is necessary to maintain network integrity, operational stability, and security, specifically to prevent serious disruption to the network, software, or stored data, AS5398 may take such action. To ensure the legality of the Customer’s use of the Service, AS5398 is not required to oversee or control it.
7.5 Any Third-Party Product Software that is provided by AS5398 and made available to the Customer as part of the Services will be based on the standard license terms of the relevant Third Party. AS5398 disclaims all responsibility for any Third-Party Products, including any security lapses, incompatibilities, glitches, or instability. Customers who use a Third-Party Product do so at their own risk because AS5398 provides no warranty for such products. They must in particular make sure that they are appropriate for their requirements and intended uses.
7.6 AS5398 may take advantage of the commercial relationship between the Customer and AS5398 on AS5398.com, AS5398’s social networks, or during events, at conferences, and in specialized market publications unless the Customer decides otherwise and notifies AS5398 of this decision. Any other channel requires prior consent from the customer.
8 Customer’s responsibilities and obligations
8.1 The Customer will be in a position to enter into and carry out the obligations outlined in this Contract and will possess the necessary power, authority, and capacity.
8.2 When using the Services on behalf of a third party, the Customer certifies and warrants to AS5398 that they have the authority to do so and the capacity to bind the third party in accordance with the terms of the Contract.
8.3 The Customer is liable for any claims brought against AS5398 as a result of a third party’s breach of the terms of the agreement and is fully liable for any claims brought against AS5398 as a result of third parties’ use of the Service.
8.4 The Customer agrees not to use any means AS5398 has unintentionally made available to obtain any documents or information. They also agree not to attempt to gain unauthorized access to any Service, content, systems, or associated networks.
8.5 The Customer agrees to keep all passwords, digital keys, and sensitive information necessary for using or gaining access to the Services private. If the customer learns that someone not authorized to access this information has accessed it, they are required to inform AS5398. The customer will be held solely responsible if unauthorized third parties use AS5398’s services through the customer account. If there is enough evidence to suggest that an account is being used by unauthorized parties, AS5398 may block access to it. AS5398 will inform the customer right away of any actions taken.
8.6 All users who have access to the admin console are subject to the Customer’s standards of behaviour. Additionally, the Customer is solely in charge of controlling access codes to his or her admin console and is fully accountable for any actions, changes, or settings made while using the Services.
8.7 If a Customer adds one or more users to the Customer Account with the status of “legal manager” through the Administration Console, those users will hold joint and several ownership of the Customer Account and will be jointly and severally liable to AS5398 for all obligations under the terms of this Contract.
8.8 AS5398 notifies the Customer that, following the termination of the other users with the “legal manager” status and any potential consequences therefrom, a second user with the “legal manager” status may, if they so choose, be made the sole legal manager of this contract from the Administration Console.
8.9 All passwords belong to the customer, and they are responsible for keeping them secure and private. If the customer has any reason to believe that one or more of their users may be engaging in illegal activity, they must notify AS5398 right away.
8.10 Any usage of the Services by the Customer in breach of the Contract that AS5398 believes poses a risk to the security, reliability, or availability of AS5398’s services may result in an immediate suspension of the Customer’s Services.
8.11 The customer agrees to abide by all laws pertaining to intellectual property rights, including copyright, licenses, patents, and trademarks, as well as third-party rights, personality rights, and copyright. They also agree to give up any future distribution rights.
8.12 Should AS5398 receive a complaint or determine that a crime has been committed in connection with the Content, including but not limited to: “Fraud, computer crime, money laundering, violation of trade secrets, falsification of documents, violence and threats against authorities and officials, unauthorised gambling, participation in a criminal act (collaboration, incitement, help and complicity), or dissemination or provision of Content contrary to criminal or civil law, representations of violence, so-called soft and hard pornography (pornography may be made accessible if the Customer installs effective controls that allow those over 18 to access corresponding content), incitement to disturb public peace, infringement of freedom of religion and culture, racial discrimination, defamation, acts of terrorism, pedophilia, antisemitism, or even Content inciting hatred towards persons on the grounds of their sex, religion, sexual orientation or identity, or disability, invasion of privacy, etc. or the unlawful or abusive use of Content (e.g. fraudulent use of Content or use of Content that infringes rights owned by a third party such as personality rights, copyrights, patent or trademark rights or other intellectual property rights)” by the Customer may lead to the immediate suspension of ALL or some of the Services provided under the Contract, the deactivation of the Customer’s Account, and/or the termination of the Contract, with any resulting costs being the responsibility of the Customer, without affecting AS5398’s right to pursue any claims for damages or other interests.
8.13 For any reason, AS5398 is not responsible for the files, including address files, that are transmitted, distributed, or collected, their use, updates, or content. AS5398 is relieved of its joint and several liability for the use of data made available to Internet users by the Customer and is only able to warn the Customer of the potential legal repercussions of any illegal activities on the Service. The same holds true if it is established that the Customer intentionally engages in spamming or other forms of intrusive behavior or attempts to engage in such behavior through the Service (including but not limited to port scanning, sniffing, spoofing, etc.).
- SPAM usage is strictly forbidden. Additionally, it is forbidden to send bulk emails through AS5398’s services to:
- People who have not requested them;
- Using email lists that have been created, bought, or rented from the Internet or by any other method;
- On a subject that was not originally intended and that results in a high rejection rate (bounce backs, invalid email addresses, unsubscriptions, etc.).
This also holds true if the customer sends emails that mention a domain name hosted by AS5398 using a third-party service provider or service.
The only accepted method of building a legitimate email list is through double opt-in, whereby the addition of an email address to a list only takes effect after the owner of the email address clicks the link provided in a subscription confirmation email.
8.14 Every email sent to someone on a list used by a mailing or newsletter tool must include the information they need to unsubscribe, or they must have access to this information at any time.
8.15 If the sender of the email cannot show evidence of the voluntary and confirmed electronic subscription of each registrant (subscription date/email address/IPADdress), the relevant Service may be blocked and terminated in response to a spam complaint.
- In relation to all claims, requests, liabilities, costs, and/or expenses attributable to the unlawful use of the Service or its content, the Customer agrees to defend, indemnify, and hold harmless AS5398 and all parties involved in the provision of the Services.
- The Customer is fully aware that AS5398 always requires a current copy of the Content. In the event that a customer’s data is lost or damaged, AS5398 is not responsible. The Customer should regularly backup their content, advises AS5398.
9. AS5398 support
9.1 Customers of AS5398 have access to a technical support service that is offered in both English and Italian. The Administration Console or the specific form available at AS5398.com can be used to contact this standard rate service by phone, email, or chat; the site’s opening hours are available there as well.
9.2 Only those who have previously registered as Customers or been designated as authorized technical contacts will receive technical support. The technical information given is based on the data supplied and requests made by the Customer, and it cannot entail AS5398’s liability in the event that the Customer sustains damage. Any fees associated with communications with its technical support service will not be refunded by AS5398.
9.3 The client agrees to treat the AS5398 support staff with courtesy, respect, and propriety. In the event of abusive, insulting, or humiliating behavior, AS5398 reserves the right to refuse to respond to customers’ requests and/or to end the contract immediately. Additionally, AS5398 retains the right to sue the customer and will be permitted to do so while disclosing any type of proof it deems appropriate as part of this process (extracts from correspondence with the customer, screenshots, e-mails, recordings of telephone calls, etc.).
10 Policy on confidentiality
10.1 AS5398 will take all necessary precautions to guard against unauthorized access to, alteration of, or disclosure of the customer’s personal information. All sensitive information has audit systems in place, in particular. This information is kept in the strictest confidence and is never sold or given out. Except when required by a court order or if AS5398 receives a complaint from a third party, it is never disclosed to anyone upon request.
10.2 The Customer understands that, as a result of their business relationship, they may both have access to Content, information, or elements pertaining to the activities of the other party. These elements may include Customer files, software technologies, or any other element that is potentially confidential, valuable to each party individually, and whose integrity would be jeopardized if revealed to a third party. Therefore, except as required by law (such as a court order or a complaint from a third party), AS5398 agrees not to use for its own account or disclose to any third party any information that it may come into knowledge of as a result of this contractual relationship. Because of this, AS5398 promises not to use information it learns as a result of this contract for its own benefit or divulge it to anyone else, unless required by law (like in the case of a court order) or in response to a third party’s complaint. Additionally, AS5398 attests that it will take the necessary precautions to safeguard the privacy of this information.
10.3 Employees of AS5398 are obligated to professional secrecy and uphold the highest level of confidentiality with regard to any information that may be disclosed to them.
10.4 Never will AS5398 send emails to its customer database on behalf of a third party.
10.5 AS5398 retains the right to use the information in its databases in its own communications (such as those alerting customers to technical issues or introducing new services) to them.
10.6 AS5398 will never ask the Customer for their password over the phone or by email.
10.7 The Customer is made aware that all phone conversations with AS5398 are recorded for the purpose of enhancing the calibre of our services.
11.1 Customers will honour AS5398’s ownership of the Website and the software used to provide the Service (proprietary rights include, but are not limited to, patents, trademarks, service marks, trade secrets, copyright and other intellectual property rights). AS5398 brand assets may only be used by Customers in accordance with this Contract.
11.2 Customers acknowledge and agree that all equipment, Content, data, and information (including your personal information and the personal information of third parties) that they submit to AS5398 as part of using the Services is either theirs, or that they have the right to use it. The content that you download using the Service remains the property of the customer. Only in the ways specified in this Contract may AS5398 use or disclose your Content (including any personal information).
12 Third parties complaint
12.1 AS5398 will email the customer as soon as possible with a warning if a third party contacts them with a complaint regarding a service that the customer has ordered and/or used. AS5398 will be happy to send the customer a copy of the third party’s complaint.
12.2 Insofar as the requested information is intended to facilitate legal action in order to assert their legal rights, AS5398 will be permitted to provide the third party with the Customer’s Details.
12.3 Within 10 Business Days, AS5398 has the right to request from the Customer supporting documentation attesting to the Customer’s good faith in relation to the complaint. AS5398 might be able to use the “Termination” clause of these TCU in the absence of proof.
12.4 If the customer ignores AS5398’s warning message or if AS5398 must intervene by sending a registered letter, making a phone call, etc. on behalf of the customer and the third-party applicant, AS5398 reserves the right to charge an intervention fee to the customer.
13 Communications between the Parties
By accepting these terms and conditions, the customer acknowledges that email will be the only method used for communication between the parties. Any additional means of notice, notification, or other communications outlined in the Contract will be regarded as having been properly delivered if they are sent:
- By registered mail with receipt acknowledgment sent to the Customer using the Contact Information.
- To AS5398: send a registered letter with a receipt acknowledgment to AS5398, Via G.B. Pioda 14 – 6900 Lugano, Switzerland.
14 Claims and disputes
14.1 In the event of a disagreement regarding the application or interpretation of these terms, AS5398 and the Customer will make every effort to resolve it amicably. The “Communications between the Parties” section must be followed when submitting any claims. The Customer is allowed to take AS5398 to court after exhausting all out-of-court options.
14.2 It is expressly agreed between AS5398 and the Customer that the latter will continue to be solely responsible for resolving any legal or pre-legal conflict involving a Service between the Customer and a third party in accordance with the terms of this Contract.
14.3 No provision of the Contract may be interpreted as limiting AS5398 ‘s liability for fraud or wilful misconduct.
15.1 If the Services AS5398 offers do not align with the specific goals the Customer is trying to accomplish, AS5398 will not be held responsible.
15.2 Under no circumstances will AS5398 be held responsible for indirect damage, which is defined as harm that does not arise directly and exclusively from the partial or complete failure of the Service offered by AS5398. Examples of such harm include commercial loss, loss of orders, deterioration of the brand’s reputation, any commercial disturbances, loss of profits, or loss of customers (for example, inappropriate disclosure of sensitive information about them as a result of a system malfunction or hacking).
15.3 Any action taken by a third party against the Customer results in indirect damage and is not eligible for compensation. In any case, AS5398’s liability would be limited to the sum of the amounts the Customer has paid to AS5398, the amounts it has invoiced to the Customer, and/or the amounts corresponding to the price of the provision, for the portion of the Service for which AS5398’s liability has been engaged. The least expensive of these sums will be considered.
15.4 The Customer understands that nothing in this agreement will relieve them of their duty to pay all sums owed to AS5398 under its terms.
15.5 The Customer expressly agrees that AS5398’s liability will never exceed the amount the Customer paid for the same Services in the year prior to the year of the compensation claim and that is subject to the compensation claim. This sum is known as the reported damage, and multiple damages connected to a single case are combined to form a single instance of recoverable damage.
16 Force Majeure
16.1 If the execution of the Contract or any of AS5398’s obligations hereunder is prevented, hindered, or interfered with by a fire, explosion, transmission network failure, facility collapse, epidemic, earthquake, flood, power outage, war, embargo, law, injunction, government demand or requirement, strike, boycott, withdrawal of authorization from a telecommunications operator, or other event beyond AS5398’s reasonable control (“force majeure”), then AS5398’s liability shall not be triggered.
16.2 AS5398 will be excused from performing its obligations within the scope of this impediment, limitation, or disruption, and the Customer will also be excused from performing their obligations to the extent that the obligations of this Party relate to the performance thus impeded, limited, or disrupted, subject to prompt notification to the Customer, provided that the Party thus affected does its utmost to prevent or remedy such causes of non-performance.
16.3 In the event of a case of force majeure, the party affected shall keep the other party regularly informed of the likelihood of its removal or restoration.
16.4 The contract may be automatically terminated at either party’s request and without any right to compensation if the effects of a case of force majeure should last longer than 30 days following the notification of force majeure to the other party.
16.5 It is expressly agreed that a Customer’s inability to pay the fees associated with AS5398’s Services will never constitute a situation involving force majeure.
17 Jurisdiction and applicable law
17.1 The Customer agrees to abide by all applicable Swiss, national, and international laws for the duration of the contract.
17.2 Additionally, AS5398 will make a concerted effort to respect the rulings of the government bodies in OECD member nations.
17.3 In the absence of a mutually agreeable resolution, any dispute relating to this contract, its conclusion, execution, or interpretation shall be governed exclusively by Swiss law, with Lugano serving as the sole venue, with appeals allowed to the Federal Supreme Court in Lausanne.
Appended on November 1, 2022