These General Terms and Conditions (GTC) apply to all products and services offered by Backup ONE AG (hereinafter Backup ONE).
Backup ONE provides software and possibly hardware components to the customer depending on the service version. Backup ONE ensures the basic usability of the delivered software and hardware components during the contract period and is responsible for regular, free updates of the software and hardware supplied by them (without prior notice). In particular, Backup ONE takes all technical and organizational measures required by Swiss data protection legislation (especially Art. 9 VDSG; SR 235.11), which are appropriate to the state of the art and based on relevant international norms and standards (for example ISO 27001). Furthermore, Backup ONE adheres to the provisions of the European General Data Protection Regulation (GDPR).
The customer agrees to pay the service amount before the start of the service period (credit card payment) or thirty (30) days after invoicing without any deductions or offsetting. They further commit to downloading the required Backup ONE software components and installing them on their IT infrastructure under their own responsibility, as well as integrating any hardware components. It is recommended to create a backup of the entire data inventory before each Backup ONE installation and integration, and to periodically repeat a data backup independent of Backup ONE. An internet connection appropriate to the chosen service scope is the customer’s responsibility. The customer is responsible for determining their files to be backed up and the timing of each backup process, and ensures under their own responsibility that their desired data has been successfully stored on Backup ONE’s server according to the log file. The customer explicitly commits to ensuring that no illegal content or content relevant to criminal, civil, or public law is present in their data. They acknowledge that in the case of criminal prosecution, Backup ONE fully cooperates with authorities in accordance with relevant legal provisions. The customer commits to returning all supplied software and hardware components to Backup ONE in complete and usable condition after contract termination. Parts of these obligations can be transferred to Backup ONE or third parties in certain service versions if this is noted accordingly in the «Operating Responsibilities». The storage of access data is the customer’s responsibility.
The service includes encryption of customer data to protect against access by Backup ONE and third parties. For encrypting data on Backup ONE’s servers, the customer can choose between the following encryption types:
No encryption
AES-256bit (extremely secure)
AES-192bit (very secure)
AES-128bit (secure)
For encryption, any character string (passphrase) determined by the customer is used. The customer is exclusively the owner and sole responsible party for all these character strings. Backup ONE has no way to recover lost character strings and recommends storing all access data in physical form in two secure and independent locations (e.g., with a trustee, bank and/or notary). Furthermore, periodic functional checks of all access data are recommended. THE CUSTOMER ACKNOWLEDGES THAT THEIR CUSTOMER DATA CANNOT BE MADE READABLE WITHOUT THE CHARACTER STRING (PASSPHRASE) AND LOSS OF THE CHARACTER STRING (PASSPHRASE) RESULTS IN THE PERMANENT LOSS OF ALL CUSTOMER DATA STORED BY Backup ONE!
The scope of delivery corresponds to the electronically selected service or the written service configuration. The customer must inspect the delivery within 10 days of receiving the goods and report any defects in writing as soon as possible. The delivery time for hardware components can take up to 6 weeks. All Backup ONE service components (software and hardware) are covered by a full functional guarantee during the entire service period. A defective component must be reported or sent to Backup ONE immediately. Component replacement occurs within a reasonable timeframe. Keeping replacement components at the customer’s location is possible – however, only components certified by Backup ONE may be used.
The contract takes effect with electronic consent to these terms or written signature of the service offer. Cancellation of binding contracts by the customer is only possible with explicit written or electronic consent from Backup ONE and assuming all expenses and costs, as well as full indemnification of Backup ONE. The contract duration is basically one year, i.e., 365 days (contract period) – unless otherwise agreed. After the first contract period, it is automatically renewed for another year. The notice period is 3 months. After contract termination, the data remains on Backup ONE’s systems for 30 days. After these 30 days, the customer data is completely deleted from all Backup ONE systems. Backup ONE reserves the right to withdraw from the contract or temporarily suspend the service in case of non-payment (with full indemnification) or to maintain the contract with compensation for resulting damages. The compensation for further damages remains reserved. All side agreements, assurances, and changes are only binding for Backup ONE after explicit written or electronic confirmation. Only Backup ONE is entitled to transfer this contractual relationship and all other relationships with the customer to another contractual party. The customer has no claim to a refund of any initial payments made after service termination.
Backup ONE ensures that personal data of customers is only collected, stored, and processed to the extent necessary for providing services and as permitted by legal regulations or ordered by legislators.
In the event that data protection consent declarations are obtained from the customer in the context of using the services, it is noted that these can be revoked by the customer at any time with effect for the future.
If data processing is carried out on behalf of others, customers can request the conclusion of a data processing agreement.
In this context, Backup ONE may also change details of data processing on its websites. Current information on the purpose, type, and scope of collection, processing, and use of personal data can be found in the privacy policy, which can be accessed at any time via the «Privacy Policy» link. There you will also find information about cookies and services used by Backup ONE.
Brochures, catalogs, and digital documents (such as general information on the internet or via email) are not binding without other explicit agreement. Information in technical documents is only binding if explicitly guaranteed.
The storage duration of data stored at Backup ONE is determined exclusively by the customer and thus has a direct influence on the amount of data stored at Backup ONE.
All Backup ONE offers are valid for 30 days unless another period is agreed upon and are clearly identifiable as such. Prices are generally exclusive of VAT in Swiss francs or a contractually, written agreed foreign currency. Contract holders from Switzerland (CHF) will be charged Swiss VAT of 7.7%. All prices on price lists or brochures are (unless explicitly noted) non-binding and can be adjusted by Backup ONE at any time. The customer explicitly confirms to waive any offsetting claims against Backup ONE. Unused or partially used services will not be refunded.
Backup ONE retains complete ownership and/or other rights to the delivered software and hardware components at all times. The customer receives no property rights (ownership, pledge, or retention rights) to the components delivered by Backup ONE and waives such rights. The customer only receives the right to use the delivered software and hardware components during the contract period. After contract termination, all authority of the customer to use, transfer, copy, or otherwise use the hardware or software expires. The property, copyright, trademark, and/or license rights to software and hardware components, signs, logos, websites, and other documents and data of Backup ONE remain exclusively with Backup ONE. The customer is not entitled to modify, copy, reverse engineer, disassemble, lease, sell, pledge, or otherwise derive the source code or use the software as a basis for creating other software programs, derivative works, or in any way that could violate the rights of Backup ONE or third parties. However, the customer can create a copy of the software for backup and archiving purposes. All notices and markings, including copyright, trademark, and license rights of the original must be applied to the backup copies. Backup ONE is entitled to use general ideas, concepts, and procedures developed or discovered alone or together with customer personnel in the course of developing the Backup ONE service for the customer, for similar or identical projects with third parties. The data stored by the customer under this contract on any hardware or software components of Backup ONE belongs solely and exclusively to the customer. Backup ONE never acquires any ownership or intellectual property claims to this data. The customer can – even during the term of this contract – demand the immediate release of all data at any time and, in the case of contract termination, request a written declaration from Backup ONE that no customer data is being retained by Backup ONE in any form or on any media.
The customer agrees to the electronic transmission of their data encrypted by Backup ONE via a public network infrastructure (Internet). The customer bears the risk of any data loss during transport. Backup ONE’s responsibility for the data begins with receipt of the data in the Backup ONE infrastructure and ends with delivery of the data from the Backup ONE infrastructure. Backup ONE commits to maintaining special legal confidentiality obligations (attorney-client privilege, medical confidentiality, professional secrecy, official secrecy) and ensuring their compliance by all employees through appropriate written confidentiality declarations.
Backup ONE explicitly guarantees high service availability of at least 99% per year (based on 365 days x 24 hours; excluding technology and internet access at customer location). They warrant that the hardware and software used are not affected by defects that eliminate or significantly reduce suitability for contractual use. Backup ONE can remedy a justifiably reported defect at their discretion through immediate elimination, workaround, or new delivery. If Backup ONE does not successfully complete the defect remedy within a reasonable period, the customer can set a grace period. After unsuccessful expiration of this grace period, the customer can demand an appropriate reduction in compensation for minor defects, terminate the contract for significant defects, and – if legal requirements are met – claim damages.
Backup ONE excludes any liability to the extent legally possible and permissible (also applies to third parties). Since Backup ONE has no access to customer infrastructures and customer data is completely encrypted, Backup ONE’s monitoring and warning capabilities are severely limited. The responsibility for successful data backup therefore lies solely with the customer.
Backup ONE distribution partners and resellers are independent from Backup ONE in their activities and not authorized to represent or act for Backup ONE in any way. Distribution partners and resellers are specially trained external professionals and companies and are available to the customer as first contact. The relationship between Backup ONE and distribution partners and resellers is regulated in a separate contract.
Should any provision of this contract be or become invalid, this does not affect the remaining provisions. In place of the invalid provisions, replacement provisions corresponding to or at least approaching the purpose of the agreement shall apply, which the parties would have agreed upon to achieve the same economic result if they had known about the invalidity of the provision. The same applies to incompleteness of provisions accordingly.
The legal relationship is subject to Swiss law, excluding any conflict of law provisions. Place of jurisdiction are the ordinary courts in the Canton of Bern (Switzerland).
Status: 25.05.2018