General Terms and Conditions
D4design Studios GmbH General Terms and Conditions of Service
(Effective Date: February 28, 2015)
For the purposes of these D4designStudios General Terms and Conditions of Service (hereinafter referred to as these „TERMS“) terms used in capital letters shall have the meaning given to these terms in this Section 1. Reference to the singular includes the plural and vice versa, and reference to a gender includes the other gender unless the context otherwise requires.
- „ACCEPTANCE DATE“ means the dates on which the WEBSITE has been accepted according to paragraph 3 or paragraph 6 of Section 3.1.2 below.
- „ACCEPTANCE PERIOD“ means a period of 7 business days following the DELIVERY DATE unless otherwise agreed in writing by the PARTIES.
- „APPS“ means 3rd party web applications used by D4DESIGN STUDIOS to provide D4D SERVICES, particularly to create DESIGN ELEMENTS.
- “CONFIDENTIAL INFORMATION” means any information supplied by either PARTY to the other PARTY (whether supplied in writing, orally or otherwise) designated as “confidential” or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
- “CUSTOMER” means the client requesting D4D SERVICES as specified in the D4D SERVICES SUBSCRIPTION.
- “CUSTOMER WORKS“ means the works and materials provided to D4DESIGN STUDIOS by the CUSTOMER, or by any third party acting for or on behalf of the CUSTOMER, for incorporation into the WEBSITE.
- „D4DESIGN STUDIOS“ means the legal entity D4design Studios GmbH, a limited liability company established under the laws of Switzerland with registered office in Zurich/Switzerland. Furthermore, D4DESIGN STUDIOS is a registered trademark owned by the legal entity D4design Studios GmbH.
- “D4D PROJECT SERVICES” has the meaning given to it in paragraph (a) of Section 2.3.1.
- “D4D HOSTING SERVICES” means a specific type of D4D SERVICES having the meaning given to it in paragraph (b) of Section 2.3 below.
- “D4D HOSTING SERVICES TERM” has the meaning given to it in Section 10.2.1 below.
- “D4D SERVICES” means the collective reference to services according to Section 2.3 below.
- “D4D SERVICES FEES” has the meaning given to it in Section 4.3 below.
- “D4D SERVICE SUBSCRIPTION” has the meaning given to it in paragraph 2 of Section 2.1 below.
- “D4D SUPPORT SERVICES” means a specific type of D4D SERVICES having the meaning given to it in paragraph (c) of Section 2.3 below.
- “D4D SUPPORT SERVICES TERM” has the meaning given to it in Section 10.3.1 below.
- “D4D WEBSITE” means the collective reference to the websites of D4DESIGN STUDIOS with the URL www.d4designstudios.com and www.d4designstudios.ch.
- “D4D WEB PROJECT SERVICES” has the meaning given to it in paragraph (a) of Section 2.3 below.
- “D4D PROJECT SERVICES TERM” has the meaning given to it in Section 10.1.1 below.
- “DEFECT” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the WEBSITE but excluding any defect, error or bug caused by or arising as a result of (i) an act or omission of the CUSTOMER, or an act or omission of one of the CUSTOMER’s employees, officers, agents or sub-contractors and/or (ii) an incompatibility between the WEBSITE and any other application, program or software (other than the CUSTOMER WORKS and the THIRD PARTY WORKS).
- „DELIVERY DATE“ means the actual date of the delivery of the WEBSITE ALPHA VERSION by D4DESIGN STUDIOS.
- „DESIGN ELEMENTS“ means the visual appearance of the WEBSITE (including page layouts, artwork, photographs, logos, graphics, animations and video works comprised in the WEBSITE) together with all mark-ups and style sheets comprised in or generated by the WEBSITE, but excluding (i) the CUSTOMER WORKS and (ii) the THIRD PARTY WORKS.
- „FORCE MAJEURE EVENT“ means an event, or a series of related events, that is outside the reasonable control of the PARTY affected (including failures of or problems with the internet or a part of the internet, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
- “INTELLECTUAL PROPERTY RIGHTS” means all intellectual property rights worldwide, particularly copyright rights, business names, trade names, domain names, trademarks, service marks, unfair competition rights, patents and rights in designs.
- “OPEN SOURCE SOFTWARE” means (free or proprietary) computer software and technology (e.g. WordPress, Joomla, Drupal, Magento, Os Ticket, phpBB) in which the software source code of the WEBSITE is available to the general public for use and/or modification from its original design according to special license terms and conditions (e.g. GNU General Public License, GNU Lesser General Public License, Open Software License (OSL)).
- „PARTIES“ means the collective reference to the CUSTOMER and D4DESIGN STUDIOS.
- “PERSONAL DATA” has the meaning given to it in the Swiss Federal on Data Protection (DPA/DSG).
- “SALES TAXES” means value added tax any similar sales tax on the D4D SERVICES FEES chargeable under applicable law.
- “SOFTWARE ELEMENTS” means the WEBSITE excluding (i) DESIGN ELEMENTS, (ii) CUSTOMER WORKS and (iii) THIRD PARTY WORKS.
- “SPOC” has the meaning given to it in Section 4.2.
- „STOCK MATERIAL” means photos, illustrations, graphics, videos, music, website files a.k.a “themes” or “templates”, html scripts , php scripts, web applications, css scripts and java scripts developed and/or owned by third party stock providers.
- “THIRD PARTY WORKS” means the works and materials comprised in the WEBSITE, the intellectual property rights in which are owned in whole or part by a third party (excluding the CUSTOMER WORKS), particularly (i) STOCK MATERIAL and (ii) APPS.
- “WARRANTY PERIOD” means a period of 3 months following the ACCEPTANCE DATE unless (i) otherwise agreed in writing by the PARTIES (ii) or upon D4D SERVICE SUBSCRIPTION for a “D4design Premium Account” on https://www.d4designstudios.com/clients/.
- „WEB HOSTING GENERAL TERMS AND CONDITIONS“ means specific contractual terms applicable to D4D HOSTING SERVICES, if made an integrated part of the D4D SERVICE SUBSCRIPTION.
- “WEBSITE” means the collective reference to the website, the web application or other work results of the D4D PROJECT SERVICES provided by D4DESIGN STUDIOS for the CUSTOMER as specified in the D4D SERVICES SUBSCRIPTION.
- “WEBSITE ALPHA VERSION” means the version of the WEBSITE delivered by D4DESIGN STUDIOS for (i) approval of the DESIGN ELEMENTS (to be made using the layout approval form provided by D4DESIGN STUDIOS) and (ii) acceptance testing by the CUSTOMER
2 Scope of Application, Special Legal Terms and Service Offering
2.1 Scope of Application and Subscription Requirements
These TERMS shall apply to all contractual relationships entered into by and between D4DESIGN STUDIOS and the CUSTOMER upon subscription of D4D SERVICES which (a) is made by the CUSTOMER using D4DESIGN STUDIOS’ online subscription and transaction tool (the „D4D SERVICE SUBSCRIPTION”) and (b) requires (i) a valid postal address of the CUSTOMER in Switzerland or abroad, (ii) a valid e‑mail address of the CUSTOMER and (iii) Internet access via a standard Internet browser (e.g. on a personal computer, tablet computer or smartphone).
By subscribing D4D SERVICES the CUSTOMER agrees to be legally bound by these TERMS and all terms, policies and guidelines incorporated by reference in these TERMS which are shown on the relevant pages of the online subscription and transaction tool and published on the D4D WEBSITE.
2.2 Right of Withdrawal of Consumers and Information on the Right of Withdrawal
If the CUSTOMER subscribes for D4D SERVICES for a purpose that cannot be ascribed either to his commercial or a self-employed occupational activity, the CUSTOMER is deemed to be a consumer to whom the provisions according to Sections 2.2.2, 2.2.3 and 2.2.4 below apply.
2.2.2 Right of Withdrawal
If the CUSTOMER is a consumer according to Section 2.2.1 above, he may withdraw from the D4D SERVICE SUBSCRIPTION without indicating any reasons for doing so by giving 14 calendar days‘ notice. The 14 calendar days’ notice period starts when the CUSTOMER receives the instructions on its right of withdrawal, however not before the D4D SERVICE SUBSCRIPTION according to Section 2.1 above is made.
The CUSTOMER shall send the notice of withdrawal according to this Section 2.2 either:
(a) By registered mail to: D4design Studios GmbH, Im Tiergarten 59, CH-8055 Zurich
(b) By e-mail to: firstname.lastname@example.org
(c) By using the contact form on the D4D WEBSITE https://www.d4designstudios.com/contact/
2.2.3 Consequences of Withdrawal
In the event of a valid withdrawal, either PARTY has to return anything already received from the other PARTY as well as any derived benefit (e.g. interest). If the CUSTOMER is unable to return what he has received, in whole or in part, or is not able to return same in its original condition, the CUSTOMER shall compensate D4DESIGN STUDIOS for the value of same.
2.2.4 Exclusion of Withdrawal
The right of withdrawal expires prematurely if the contractual obligations between the CUSTOMER and D4DESIGN STUDIOS according to these TERMS and the D4D SERVICE SUBSCRIPTION have been fully performed by both PARTIES before the CUSTOMER has exercised the right of withdrawal.
2.3 Service Offering
2.3.1 Types of Services
D4D SERVICES may include one or more of the following types of services:
(a) Web design, logo design, photo, videos and web development project services (the “D4D PROJECT SERVICES”);
(b) Domain name registration and/or web hosting services (the “D4D HOSTING SERVICES”);
(c) Customer support and maintenance services (the “D4D SUPPORT SERVICES”).
2.3.2 D4D Project Services
The scope of the D4D PROJECT SERVICES shall be defined in the D4D SERVICE SUBSCRIPTION.
2.3.3 D4D Hosting Services
D4DESIGN STUDIOS shall provide D4D HOSTING SERVICES upon D4D SERVICE SUBSCRIPTION of either:
(a) The“D4design Studios Managed Personal Hosting package” with a limit of 5000MB / 5GB disk space;
(b) The “D4design Studios Managed Business Hosting package” with a 15000MB / 15GB disk space.
By exceeding the disk space limit of the hosting package defined in the D4D SERVICE SUBSCRIPTION, the CUSTOMER accepts to pay the additional costs for the use of the actual disk space.
If the CUSTOMER fails to pay the additional costs for the use of the actual disk space, D4DESIGN STUDIOS is entitled to deactivate the D4D HOSTING SERVICES within 72 hours.
Furthermore, the provisions of the WEB HOSTING GENERAL TERMS AND CONDITIONS shall apply to D4D HOSTING SERVICES.
2.3.4 D4D Support Services
D4DESIGN STUDIOS shall provide D4D SUPPORT SERVICES upon D4D SERVICE SUBSCRIPTION for a “D4design Premium Account” on https://www.d4designstudios.com/clients/ which includes (i) email support, (ii) phone support, (iii) ticket support, (iv) live chat support and (v) video tutorial service.
Support requests of the CUSTOMER shall be submitted to D4DESIGN STUDIOS by (i) email to email@example.com or (ii) telephone to 0041 44 586 8833 or (iii) SKYPE to d4designstudios.
Support requests of the CUSTOMER are processed by D4DESIGN STUDIOS in the order received by D4DESIGN STUDIOS.
Each support request of the CUSTOMER will be answered by D4DESIGN STUDIOS within a maximum period of 5 business days.
2.4 Basic Principles and Development Policy
D4DESIGN STUDIOS understands that its success depends on the success of each CUSTOMER.
D4DESIGN STUDIOS will treat each CUSTOMER with the utmost respect.
D4DESIGN STUDIOS will act with the highest level of integrity.
D4DESIGN STUDIOS will only engage in projects in which D4DESIGN STUDIOS feels it can be of benefit to the CUSTOMER and the CUSTOMER‘S organization.
D4DESIGN STUDIOS will behave, at all times and in all ways, in a professional and ethical manner.
D4DESIGN STUDIOS reserves the right not to accept requests for D4D SERVICES which would promote racism, pornography, or anything that is of objectionable contents.
3 D4design Studios‘ Rights and Obligations
3.1 Quality of Service
3.1.1 D4D Services in General
D4DESIGN STUDIOS shall perform the D4D SERVICES with all due diligence, in accordance with generally accepted techniques and practices used in the information technology industry and shall observe sound management and technical practices.
However, D4DESIGN STUDIOS shall assume no warranty as to the completeness, accuracy, marketability and suitability of the D4D SERVICES for particular purposes, unless specified in the D4D SERVICES SUBSCRIPTION. Furthermore, D4DESIGN STUDIOS does not guarantee that D4D SERVICES will be available continuously. In particular, maintenance works, security improvement measures, capacity problems or circumstances outside the control of D4DESIGN STUDIOS (e.g. non-availability of public communications networks, electric power blackouts or denial of service-attacks, hacking-attacks or shortfalls caused by malware) may lead to errors or temporary unavailability of D4D SERVICES.
3.1.2 Delivery and Acceptance of the Website
D4DESIGN STUDIOS shall use reasonable endeavors to deliver the WEBSITE ALPHA VERSION for acceptance testing on or before the date defined in the D4D SERVICE SUBSCRIPTION.
Within the ACCEPTANCE PERIOD, the CUSTOMER shall carry out tests to determine on whether the WEBSITE complies in all material respects with the specification in the D4D SERVICES SUBSCRIPTION.
If in the CUSTOMER’s reasonable opinion the WEBSITE complies in all material respects with the specification in the D4D SERVICES SUBSCRIPTION, the CUSTOMER shall send to D4DESIGN STUDIOS a notice during the ACCEPTANCE PERIOD confirming acceptance of the WEBSITE.
If in the CUSTOMER’s reasonable opinion the WEBSITE does not comply in all material respects with the specification in the D4D SERVICES SUBSCRIPTION, the CUSTOMER shall send to D4DESIGN STUDIOS a notice during the ACCEPTANCE PERIOD setting out in detail the respect(s) in which the WEBSITE is not compliant with the specification in the D4D SERVICES SUBSCRIPTION.
If D4DESIGN STUDIOS agrees that the WEBSITE does not comply in all material respects with the specification in the D4D SERVICES SUBSCRIPTION, D4DESIGN STUDIOS will have a further appropriate remedial period to modify the WEBSITE to make it compliant with the specification in the D4D SERVICES SUBSCRIPTION.
The WEBSITE will be deemed to have been accepted by the CUSTOMER if (i) the CUSTOMER does not give any notice to D4DESIGN STUDIOS according to paragraph 3 or paragraph 4 of this Section 3.1.2 during the ACCEPTANCE PERIOD or (ii) the CUSTOMER uses the WEBSITE for any purpose other than testing according to paragraph 2 of this Section 3.1.2.
D4DESIGN STUDIOS shall provide the CUSTOMER in a timely fashion with all information available about any facts which could jeopardize the successful performance of the D4D SERVICES or which could lead to inexpedient results.
3.3 Stock Material, Web-Applications (Apps) and Open Source Technology
D4DESIGN STUDIOS reserves the right to use STOCK MATERIAL and/or APPS and/or OPEN SOURCE SOFTWARE under the applicable license terms for such STOCK MATERIAL, APPS and OPEN SOURCE SOFTWARE and to sublicense such STOCK MATERIAL, APPS and OPEN SOURCE SOFTWARE to the CUSTOMER for the use of the WEBSITE by the CUSTOMER under the applicable license terms.
Both PARTIES shall strictly adhere to applicable the license terms for such STOCK MATERIAL, APPS and OPEN SOURCE SOFTWARE.
4 Customer’s Rights and Obligations
The CUSTOMER shall provide D4DESIGN STUDIOS with all pertinent data and information required for the performance of the D4D SERVICES in a timely fashion and free of charge.
D4DESIGN STUDIOS shall take no responsibility for the accuracy and completeness of the information and data furnished by the CUSTOMER or by any of its agents, employees or sub-contractors, unless the validation of such information and data is explicitly made a part of the scope the D4D SERVICES in the D4D SERVICES SUBSCRIPTION.
The CUSTOMER shall provide D4DESIGN STUDIOS in a timely fashion with all information available about any facts which could jeopardize the successful performance of the D4D SERVICES or which could lead to inexpedient results.
4.2 Single Point of Contact (SPOC)
The CUSTOMER shall nominate a qualified person serving as the coordinator or focal point of information concerning the D4D SERVICES, particularly during the development phase of the WEBSITE.
D4DESIGN STUDIOS shall not accept instructions given by persons or entities other than the SPOC unless such person or entity is explicitly authorized by (i) the SPOC or (ii) a written proxy of the CUSTOMER.
4.3 Payment of Fees
The CUSTOMER shall make the payments for D4D SERVICES determined in the D4D SERVICES SUBSCRIPTION (the „D4D SERVICES FEES“).
Unless otherwise provided in the D4D SERVICES SUBSCRIPTION the CUSTOMER shall pay SALES TAXES on the D4D SERVICES FEES.
Subject to any other provision in the D4D SERVICES SUBSCRIPTION, the CUSTOMER shall pay each invoice properly issued and submitted by D4DESIGN STUDIOS within 10 calendar days of receipt.
4.4 Non-Permitted Contents
While using D4D SERVICES the CUSTOMER shall not transmit, distribute, store, create or otherwise publish any of the following:
(a) Any data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, harassing, threatening, invasive of privacy or publicity rights, abusive or fraudulent;
(b) Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
(c) Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
(d) Viruses, corrupted data or other harmful, disruptive or destructive files;
(e) Content that, in the sole judgment of D4DESIGN STUDIOS, is objectionable or which may expose D4DESIGN STUDIOS, its directors, its employees, its contractors or its clients to any harm or liability of any type.
Any use of the D4D SERVICES or portions of the D4D SERVICES in violation of the terms of this Section 4.4 may result in, among other things, termination according to Sections 10.1.3.2, 10.2.2.2 or 10.3.2.2 below or suspension of the CUSTOMER’s right to use the WEBSITE and/or the D4D SERVICES.
5 Intellectual Property Rights
5.1 Design Elements
From the ACCEPTANCE DATE, D4DESIGN STUDIOS hereby assigns to the CUSTOMER its INTELLECTUAL PROPERTY RIGHTS in the DESIGN ELEMENTS. These rights are assigned for the whole term of such rights together with all reversions, extensions and renewals, and this assignment includes the right to bring proceedings for past infringement of the assigned INTELLECTUAL PROPERTY RIGHTS by third parties.
5.2 Software Elements
All INTELLECTUAL PROPERTY RIGHTS in the SOFTWARE ELEMENTS will, as between the PARTIES, be the property of D4DESIGN STUDIOS and, from the ACCEPTANCE DATE, D4DESIGN STUDIOS grants to the CUSTOMER a non-exclusive worldwide license to use the SOFTWARE ELEMENTS in connection with the WEBSITE and providing the CUSTOMER shall not (i) sell, resell, rent, lease, supply, distribute or redistribute the SOFTWARE ELEMENTS, (ii) use the SOFTWARE ELEMENTS in connection with any website, web application, script, computer program or software (other than the WEBSITE) (iii) alter or adapt or edit the SOFTWARE ELEMENTS (except OPEN SOURCE SOFTWARE owned and licensed by D4DESIGN STUDIOS) without D4DESIGN STUDIOS‘ approval.
The CUSTOMER may only sub-license the rights licensed under this Section 5.2 for the limited purposes, and subject to the express restrictions, specified in this Section 5.2.
5.3 Third Party Works
The THIRD PARTY WORKS will be either (at the option of D4DESIGN STUDIOS) (i) supplied in accordance with the relevant licensor’s standard terms for online use or (ii) supplied on license terms notified by D4DESIGN STUDIOS to the CUSTOMER and (iii) sub-licensed by D4DESIGN STUDIOS to the CUSTOMER on terms notified by D4DESIGN STUDIOS to the CUSTOMER and/or (iv) sub-licensed by D4DESIGN STUDIOS to the CUSTOMER on the basis of a non-exclusive, worldwide, royalty-free license to use the THIRD PARTY WORKS in connection with the WEBSITE.
5.4 Reversion of Assignments and Termination of Licenses
Notwithstanding any other provision of these TERMS, the assignments and licenses granted by D4DESIGN STUDIOS under these TERMS are subject to the payment by the CUSTOMER of all amounts owing to D4DESIGN STUDIOS in full and on time.
In the event that the CUSTOMER owes any amount to D4DESIGN STUDIOS and fails to pay that amount to D4DESIGN STUDIOS within 30 calendar days of receiving a notice of D4DESIGN STUDIOS (i) requiring to pay the amount due and (ii) specifying that the assignment of rights according to Section 5.1 above will revert and the licenses granted according to Sections 5.2 and 5.3 will terminate if the amount due remains unpaid, then D4DESIGN STUDIOS may revert the assignment of rights according to Section 5.1 above and terminate the licenses granted according to Sections 5.2 and 5.3 above by giving 10 days‘ notice of reversion and termination to the CUSTOMER according to Sections 10.1.3.2, 10.2.2.2 or 10.3.2.2 below.
5.5 Credits, Links and Marketing
D4DESIGN STUDIOS may include the statement “Site by D4design Studios” together with a small D4design Studios-Logo and a link to the D4D WEBSITE on the imprint page or another appropriate page of the WEBSITE in a position and in a form to be agreed by the PARTIES. The CUSTOMER will retain any such credit and link in any adapted version of the WEBSITE, and the CUSTOMER will only remove any such credit and link from the WEBSITE at D4DESIGN STUDIOS request.
The CUSTOMER grants to D4DESIGN STUDIOS a non-exclusive worldwide license to use the WEBSITE for the purpose of marketing D4DESIGN STUDIOS’ services to third parties.
6.1 Of the Customer
The CUSTOMER warrants to D4DESIGN STUDIOS that it has the legal right and authority to enter into and perform its obligations according to these TERMS.
6.2 Of D4design Studios
D4DESIGN STUDIOS warrants to the CUSTOMER:
(a) that it has the legal right and authority to enter into and perform its obligations according to these TERMS and the D4D SERVICE SUBSCRIPTION, and
(b) that it will perform its obligations according to these TERMS and the D4D SERVICE SUBSCRIPTION with reasonable care and skill, and
(c) that the WEBSITE will continue to operate without material DEFECTS during the WARRANTY PERIOD (and if the WEBSITE does not so operate during the WARRANTY PERIOD, D4DESIGN STUDIOS will, for no additional charge, carry out any work necessary in order to ensure that the WEBSITE operates without material DEFECTS during the WARRANTY PERIOD).
The CUSTOMER acknowledges that D4DESIGN STUDIOS designs the WEBSITE to work with the web browser technology specified in the D4D SERVICES SUBSCRIPTION and D4DESIGN STUDIOS does not warrant that the WEBSITE will work with any other web browser technology and/or browser add-on’s used by the CUSTOMER. Particularly, D4DESIGN STUDIOS shall not assume any warranty for (i) unauthorized changes of the WEBSITE and (ii) the backward compatibility of the WEBSITE with versions of products or technologies, particularly browser versions, released prior to the DELIVERY DATE.
Furthermore, the CUSTOMER acknowledges that D4DESIGN STUDIOS does not purport to provide any legal advice under these TERMS or in relation to the WEBSITE.
7 Data Protection
The CUSTOMER warrants that it has the legal right to disclose all PERSONAL DATA which it does in fact disclose to D4DESIGN STUDIOS in connection with the performance of D4D SERVICES.
D4DESIGN STUDIOS warrants that:
(a) it will act only process PERSONAL DATA disclosed by the CUSTOMER on explicit or implied instructions from the CUSTOMER and on behalf of the CUSTOMER; and
(b) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of PERSONAL DATA disclosed by the CUSTOMER and against loss or corruption of such PERSONAL DATA processed by D4DESIGN STUDIOS on behalf of the CUSTOMER.
8 Confidentiality and Publicity
Either PARTY shall keep confidential all CONFIDENTIAL INFORMATION disclosed to it by the other PARTY and will not disclose such CONFIDENTIAL INFORMATION except as expressly permitted by this Section 8.
Either PARTY shall protect CONFIDENTIAL INFORMATION using at least reasonable security measures (both technical and organizational).
CONFIDENTIAL INFORMATION may be disclosed by either PARTY to its employees and professional advisers, provided that each such recipient is statutorily or contractually bound to protect the confidentiality of the CONFIDENTIAL INFORMATION.
These obligations of confidentiality will not apply to information that:
(a) has been published or is known to the public (other than as a result of a breach of these TERMS);
(b) is known to a PARTY, and can be shown by such PARTY to have been known to it, before disclosure by the other PARTY; or
(c) is required to be disclosed by law or by an order (binding upon the relevant PARTY) of a court or governmental body.
D4DESIGN STUDIOS will not make any public disclosure relating to the subject matter of the D4D SERVICE SUBSCRIPTION (including press releases, public announcements and marketing materials) without the prior consent of the CUSTOMER or as permitted according to paragraph 2 of Section 5.5 above.
9.1 Unlimited Liability
Nothing in these TERMS will exclude or limit the liability of either PARTY for (i) death or personal injury caused by a PARTY’s negligence, (ii) fraud or fraudulent misrepresentation on the part of a PARTY; or (iii) any other liability which may not be excluded or limited under the applicable law.
9.2 Limitations and Exclusions of Liability
Subject to Section 9.1 above D4DESIGN STUDIOS’ liability to the CUSTOMER under or in connection with these TERMS and the D4D SERVICE SUBSCRIPTION, whether in contract or tort (including negligence), will be limited as follows:
(a) D4DESIGN STUDIOS will not be liable for any:
(i) loss of profits, income or anticipated savings,
(ii) loss or corruption of any data, database or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) any other indirect, special or consequential loss or damage.
(b) D4DESIGN STUDIOS will not be liable for any losses arising out of any FORCE MAJEURE EVENT;
(c) D4DESIGN STUDIOS’ liability in relation to any event or series of related events will in no circumstances exceed 50% of the amount of D4D SERVICES FEES paid or to be paid by the CUSTOMER to D4DESIGN STUDIOS as agreed in the D4D SERVICE SUBSCRIPTION.
10 Term and Termination of D4D Services
10.1 D4D Project Services
10.1.1 Project Term
D4D PROJECT SERVICES shall commence on the date determined in the D4D SERVICES SUBSCRIPTION and be completed on the ACCEPTANCE DATE (hereinafter referred to as the „D4D PROJECT SERVICES TERM”) unless terminated by either PARTY according to Section 10.1.3 below.
The CUSTOMER is entitled to request for a suspension of the D4D PROJECT SERVICES for not more than 30 calendar days at any time during the D4D PROJECT SERVICES TERM by giving notice to D4DESIGN STUDIOS.
Except as otherwise agreed by the PARTIES prior to the beginning of the suspension, any suspension of the D4D PROJECT SERVICES by the CUSTOMER of more than 30 calendar days will be deemed to be a termination according to Section 10.1.3.1 below.
The CUSTOMER is entitled to terminate the D4D PROJECT SERVICES at any time during the D4D PROJECT SERVICES TERM by giving notice to D4DESIGN STUDIOS and against payment of the D4D SERVICES FEES for D4D PROJECT SERVICES already performed and any cost reasonably and properly incurred by D4DESIGN STUDIOS due to the early termination of the D4D PROJECT SERVICES by the CUSTOMER.
In the event that a PARTY materially defaults in the performance of any of its duties or obligations under these TERMS and/or the D4D SERVICE SUBSCRIPTION, which default is not substantially cured within 30 calendar days after written notice is given to the defaulting PARTY specifying the default, then the non-defaulting PARTY may terminate the D4D PROJECT SERVICES on the date specified in such notice of termination, which date will be no later than 60 calendar days after the date on which that PARTY’s right to terminate the D4D PROJECT SERVICES arose.
10.2 D4D Hosting Services
10.2.1 Service Term
D4D HOSTING SERVICES shall commence and end on the dates determined in the D4D SERVICES SUBSCRIPTION and thereafter automatically be renewed for one year periods each unless terminated by either PARTY giving to the other not less than six months’ written notice of such termination (hereinafter referred to as the „D4D HOSTING SERVICES TERM”).
The CUSTOMER is entitled to terminate the D4D HOSTING SERVICES at any time by giving notice to D4DESIGN STUDIOS and against full payment of the D4D SERVICES FEES due for the entire D4D HOSTING SERVICES TERM.
In the event that a PARTY materially defaults in the performance of any of its duties or obligations under these TERMS and/or the D4D SERVICE SUBSCRIPTION, which default is not substantially cured within 30 calendar days after written notice is given to the defaulting PARTY specifying the default, then the non-defaulting PARTY may terminate the D4D HOSTING SERVICES on the date specified in such notice of termination, which date will be no later than 60 calendar days after the date on which that PARTY’s right to terminate the D4D HOSTING SERVICES arose.
Notwithstanding the above, D4DESIGN STUDIOS is entitled to deactivate the D4D HOSTING SERVICES according to the provisions of Section 2.3.3 above.
10.3 D4D Support Services
10.3.1 Service term
D4D SUPPORT SERVICES shall commence and end on the dates determined in the D4D SERVICES SUBSCRIPTION and thereafter automatically be renewed for one year periods each unless terminated by either PARTY according to Section 10.3.2 below.
10.3.2.1 For Convenience
The CUSTOMER is entitled to terminate the D4D SUPPORT SERVICES at any time by giving notice to D4DESIGN STUDIOS and against full payment of the D4D SERVICES FEES due for the entire D4D SUPPORT SERVICES TERM.
10.3.2.2 For Cause
In the event that a PARTY materially defaults in the performance of any of its duties or obligations under these TERMS and/or the D4D SERVICE SUBSCRIPTION, which default is not substantially cured within 30 calendar days after written notice is given to the defaulting PARTY specifying the default, then the non-defaulting PARTY may terminate the D4D SUPPORT SERVICES on the date specified in such notice of termination, which date will be no later than 60 calendar days after the date on which that PARTY’s right to terminate the D4D SUPPORT SERVICES arose.
11 General Provisions
11.1 No Waiver
Neither PARTY’s failure to exercise any of its rights under these TERMS shall constitute or be deemed to constitute a waiver or forfeiture of such rights. Waiver of a breach of these TERMS shall not be deemed a waiver of any future breach. Any waiver must be in writing and signed by the PARTY not in breach.
Subject to Section 11.3 below, neither PARTY shall assign any right, interest or obligation under these TERMS and the D4D SERVICE SUBSCRIPTION to a third party without the prior written consent of the other PARTY.
D4DESIGN STUDIOS may subcontract any of its obligations under these TERMS and the D4D SERVICE SUBSCRIPTION to any third party without the CUSTOMER’s consent.
11.4 Governing Law
These TERMS shall be governed by and construed in accordance with the laws of Switzerland, with the exclusion of its conflict of laws principles and the Vienna Convention on the International Sale of Goods dated April 11, 1980.
All disputes arising out of or in connection with these TERMS and the D4D SERVICE SUBSCRIPTION, including disputes on its conclusion, binding effect, amendment and termination, shall be resolved exclusively by the Commercial Court of the Canton of Zurich, Switzerland (Handelsgericht des Kantons Zurich, Schweiz).