1 These General Terms and Conditions (hereinafter referred to as “GTC”) govern the relationship between the customer and yawave AG (hereinafter referred to as “yawave”) for all services offered by yawave.
2 Written or electronically accepted additional agreements (user agreements, project agreements, service level agreements, etc.) shall apply in addition and shall take precedence over these GTC in the event of contradictions. Subject to the following figure 71,, the current version of the GTC published on yawave.com at the time of the conclusion or extension of the contract shall apply.
3 With the conclusion of the contract, but at the latest with the first use of services of yawave, the present GTC as well as the agreements mentioned under item 2 above, applicable to the respective services as accepted. These GTC also apply to all future services provided by yawave to the customer, even if these should not be explicitly agreed again.
4 Terms and conditions of the customer or other conditions deviating from these terms and conditions are considered waived, unless their applicability has been confirmed in writing by yawave.
5 For products and services of third parties, which yawave sells to the customer, additional conditions of the respective suppliers/manufacturers may apply.
2. Subject matter and conclusion of the contract
6 The subject of the contract is the provision of the yawave software suite as a SaaS resp. cloud solution. In doing so, the customer uses the yawave Software Suite executed on the server infrastructure of yawave or on the server infrastructure operated by a third party on behalf of yawave (hereinafter referred to as “yawave server infrastructure”) in accordance with the contractual agreements for data processing and storage via the internet.
7 Other services provided by yawave may include software development and licensing, project management, and consulting services.
8 The contract is concluded with the acceptance (letter or e-mail) of the offer of yawave by the customer. In case of an electronic order of a service by the customer via the internet (e.g. via the customer account), the contract is deemed concluded with the confirmation (letter or e-mail) by yawave or with the start of the service provision by yawave or the transmission of the access data. The contractual relationship begins in any case, regardless of the above, at the latest at the time of use of the services by the customer.
3. Customer account
9 The use of the yawave Software Suite may require the customer to register with yawave and to have a customer account.
10 The customer is obligated to provide truthful information and to keep the access data confidential and not to make it accessible to unauthorized third parties. The customer also confirms that all persons who make declarations for the customer via the customer account are actually authorized to legally bind the customer.
11 yawave reserves the right to block the customer account at any time and without giving reasons, if the customer has obtained access to the yawave Software Suite by providing false data, if the customer violates the contractual conditions, or if the blocking is necessary to maintain the security and integrity of the IT infrastructure of yawave.
12 The customer is obliged to contact and inform yawave immediately if he has reason to believe that his customer account is or has been misused by unauthorized third parties. The customer is responsible to yawave for all actions that are performed using the customer account. The customer is only not responsible if he can prove that he informed yawave immediately and did not violate any duty of care in dealing with the customer account.
4. Services from yawave
13 yawave provides its services professionally and with the use of suitable personnel. yawave may involve third parties in the provision of services and is solely responsible for the correct selection and instruction of the third parties.
14 yawave can neither guarantee the trouble-free nor the uninterrupted use of the yawave Software Suite. Nor can yawave guarantee absolute security, despite all state-of-the-art security precautions and software applications built according to modern standards and open technologies.
15 yawave is not responsible for the data transmission infrastructure of the customer. In general, yawave can thus neither assume any responsibility for the availability and performance of data transmission networks nor any responsibility for the error-free and uninterrupted as well as timely transmission of data.
16 The responsibility for backing up and restoring the customer’s data, which the customer processes using the yawave software suite on the yawave server infrastructure, lies exclusively with the customer.
4.2 yawave Software Suite
17 yawave provides the customer with the yawave Software Suite for use via the internet in accordance with the subscription selected by the customer or in accordance with an individual contractual agreement with the customer in the scope of functions and services published at yawave.com.
18 The customer has the right to use the functionalities of the yawave Software Suite in accordance with the aforementioned contractual basis via the Internet. The customer receives a non-exclusive, limited to the duration of the contractual relationship between yawave and the customer and non-transferable right to use the yawave Software Suite for his own use. The aforementioned use is exclusively limited to the operation of the yawave Software Suite on the server infrastructure of yawave or the server infrastructure operated by a third party on behalf of yawave. The customer is not granted any further rights to the yawave Software Suite. All property rights, in particular the copyrights to the software provided by yawave within the scope of the aforementioned service provision, are the exclusive property of yawave or, if applicable, its suppliers and the manufacturers. A use by third parties, in the sense of a free or paid provision by the customer, is not permitted. In particular, the customer is not entitled to further licensing and/or sublicensing. The customer is not allowed to edit, change, copy, develop, sell, distribute, or otherwise exploit the software or parts of it in deviation from the contractual agreements, the scope of functions and services as well as the documentation independently and without the consent of yawave. In addition, the customer has no claims for surrender or provision of source code. Supplementary provisions to the conditions of use of third-party services (such as licensing conditions of third-party software) are also considered expressly agreed.
19 yawave is responsible for the general maintenance of the systems used by yawave (hardware and software components) in the sense of constant up-to-dateness and stability according to the current state of the art. The timing of updates is determined exclusively by yawave.
4.3 Other services
20 If yawave provides additional consulting services within the scope of the provision of the yawave Software Suite, this will be done according to the instructions of the customer and under the direction of the customer. yawave assures in this context to act carefully and with the use of expert personnel within the agreed scope of the consulting. The consulting services are considered provided as soon as yawave has handed over or transmitted the results of the consulting services to the customer.
21 If yawave provides individual software development services for the customer, this is based on agile software development methods and the associated cyclical working method in continuous coordination with the customer. The requirements defined jointly for implementation are specified for each development cycle in the project protocol (“backlog”) and the respective effort for implementing the requirements is estimated or determined. In this context, the customer must also record – based on concrete application scenarios and the concrete application environment – the intended behavior as well as the intended events or desired results, so that on this basis the conformity of yawave’s work results with the customer’s requirements can be checked for each development cycle. It is the common understanding of the parties that the respective development cycles are to be checked as comprehensively as possible for their conformity to the aforementioned requirements in the concrete application. If the project protocol establishes conformity based on the status of the project protocol and the associated development cycle, the services shall be deemed to have been accepted on this basis in accordance with the contract.
22 Depending on the selected subscription or the individual contractual agreement with the customer, the customer is entitled to use the yawave Software Suite in his customer-specific layout and design (white labeling). In this case, yawave provides the yawave Software Suite to the customer in a form that enables the customer to use it in particular under its own name and in its own layout and design. The designation as well as the layout or design shall be sufficiently different from the standard layout and design of yawave. In this context, the customer confirms in particular that he is entitled to use the designations (in particular trademarks) and designs used by him and that the use does not violate any rights of third parties. yawave reserves the right to make the use of the yawave Software Suite in a customer-specific layout and design as well as with its own designation dependent on prior consent.
23 Depending on the selected subscription or the individual contractual agreement with the customer, the customer is entitled to integrate the yawave Software Suite into his systems by means of an application programming interface (“API”) or customized integration. In case of misuse or disproportionately frequent requests via the API, yawave reserves the right to temporarily or permanently block access to the API. yawave also particularly reserves the right to limit the number of requests via the API to a certain maximum number per time interval.
24 If yawave performs project management tasks for the customer, this is done on behalf of the customer in the sense of an “external project management”. In this context, the project management records in each case in a suitable form when decisions or proposals are made on behalf of the customer in the function of external project management. The customer releases yawave in the context of this external project management for all decisions or proposals, which are made on behalf of the customer by yawave, fully from any responsibility.
25 The customer is aware and agrees that yawave relies on agile methods as a process model for the provision of its services, namely in the area of development. The provision of services based on agile methods requires to a considerable extent a responsible and trusting cooperation between the parties. The agile approach is also accompanied by the fact that no concrete work results can be guaranteed on this basis. In particular, the customer is aware that, due to the cyclical mode of operation associated with agile methods, continuous and permanent communication between the parties is absolutely relevant to success.
4.4. Availability and support
26 The availability of the yawave software suite as well as the customer’s access to yawave support services depends on the selected subscription or the individual contractual agreement with the customer.
27 If a minimum availability of the yawave Software Suite is guaranteed, the ordinary and pre-announced maintenance windows, interruptions caused by third parties as well as by the customer (in particular due to performance settings) as well as interruptions caused by circumstances beyond the control of yawave, namely interruptions and malfunctions of data transmission networks, interruptions and malfunctions due to malware or force majeure, shall be excluded for the assessment of compliance with the minimum availability.
28 yawave provides an email support and, depending on the selected subscription, a free or chargeable hotline to support its customers in technical questions regarding the handling and installation of the yawave Software Suite as well as for reporting malfunctions or incorrect behavior.
29 All support services are provided exclusively on a “best effort” basis, i.e. within the scope of yawave’s available operational and personnel resources. There is no guarantee on the part of yawave to be able to solve malfunctions within a certain period of time. Individual contractual agreements with the customer remain reserved.
30 If a customer requests the elimination of disruptions, he bears the costs incurred by yawave in this connection, provided that yawave is not responsible for the elimination of the disruption according to the provisions of these GTC and the customer does not provide evidence that the disruption can be attributed to the infrastructure or the services of yawave.
31 yawave is additionally entitled to temporarily restrict or discontinue the availability of the yawave Software Suite or parts thereof, as far as this is necessary for important reasons, such as:
- Preservation of public safety
- Security as well as maintaining the operation of yawave’s communication networks.
- Preservation of data protection
- Combating the spread of malicious programs
- Combating attacks on yawave’s infrastructure (such as hacker attacks or DDoS attacks)
- yawave will inform the customer as soon as possible about the duration and scope of the restriction. A temporary restriction does not exempt the customer from paying the contractually agreed remuneration until the next possible termination date of the contract.
32 Dates are considered binding only if this has been expressly agreed with the customer. yawave has the right to demand the appropriate adjustment of dates and schedules if it is not supplied on time by its own suppliers and subcontractors, if the customer does not fulfill its contractual obligations to cooperate or does so only inadequately, or if extraordinary events occur over which yawave has no influence (such as strikes, natural disasters, etc.). Dates and schedules according to the schedule are also considered postponed or suspended as long as the customer is in default with his contractual payment obligations.
33 If yawave does not meet binding agreed deadlines, the customer can set a reasonable grace period. If this grace period also expires unused, the customer is entitled to withdraw from the contract and claim damages for delayed performance, provided that the damage was caused intentionally or by gross negligence. The customer may not assert any further claims arising from missed deadlines. A refund of remuneration already paid by the customer is excluded in the event of withdrawal.
6. Payment Terms and conditions
34 Invoicing is based on the agreed prices according to the contract or on the selected subscription according to the conditions published at
yawave.com. In the case of remuneration based on the effective use of yawave services (such as DAM storage and traffic, publications, contact volume or members), the billing of services and remuneration will be based on yawave’s log records of the customer’s use of the yawave Software Suite. Other services, such as consulting services, and related out-of-pocket expenses and additional expenses (such as travel time) will also be billed according to the fee rates and terms published at yawave.com. Unless otherwise agreed, all fees are due in advance.
35 yawave accepts as means of payment the most commonly used credit cards VISA, MasterCard and American Express. By specifying the means of payment, the customer authorizes yawave to charge the corresponding means of payment. The subscription costs for the use of the yawave Software Suite are charged monthly, three-monthly, semi-annually, or annually in advance to the payment method chosen by the customer. Depending on the payment method chosen by the customer, usage-dependent fees are charged retroactively at the end of each calendar month.
36 If a payment cannot be processed successfully because the specified means of payment has expired, does not have sufficient credit or the payment fails for any other reason, the customer must immediately specify an alternative means of payment and make the appropriate update in the customer account. Payment by invoice is possible in certain cases but requires an individual agreement between yawave and the customer and is only available for selected subscription types.
37 Invoices are payable within 10 days of the invoice date. After expiry of the payment deadline, the customer is in default even without an explicit payment reminder or reminder. In the event of failure to meet the payment deadline, the customer undertakes to pay reminder charges in the amount of CHF 20.00 for each reminder.
38 After unused expiration of payment deadlines or if a payment cannot be successfully processed via the means of payment specified by the customer, yawave is entitled to suspend all services until full payment of the remuneration due. Any contractually agreed deadlines to be met by yawave also remain suspended for the duration of the delay in payment.
39 All fees are exclusive of taxes, which yawave will charge as applicable. The customer agrees to pay any taxes applicable to his use of the Subscription Service and performance of Consulting Services. If the customer is located in the European Union, all fees are exclusive of any VAT (according to “reverse charge”) and the customer assures that he is registered as a company for VAT purposes in the respective member state. At yawave’s request, the customer will provide yawave with the VAT registration number under which his company is registered in the respective member state.
7. General duties to cooperate and other duties
40 The customer has to provide all technical, operational and personnel requirements necessary for the provision of services by yawave as well as the necessary information and decisions correctly and in a timely manner.
41 The customer ensures that yawave receives the necessary access and authorizations for the premises, the other facilities as well as the IT systems of the customer to provide its services. If yawave has to provide services via remote access on the systems of the customer, the customer provides yawave with a secured online access to the systems of the customer. If yawave cannot provide its services via remote access due to failures on the part of the customer, yawave is entitled to invoice for any on-site intervention at cost according to the terms and conditions at yawave.com.
42 With regard to the use of the yawave Software Suite, the customer is obligated to maintain unchanged all property right notices and references to yawave in accordance with yawave’s specifications.
43 The customer must immediately notify yawave of all service disruptions or deficiencies in the provision of services, providing the information necessary for proper verification, either in writing by mail, fax, or e-mail or in the form specified in the contract. The customer must support yawave within reasonable limits in the identification and analysis of service disruptions.
44 yawave Software Suite may only be used as intended and only within the framework of the applicable law and any additional agreements between the parties. The customer warrants not to commit any infringement of rights by using the yawave Software Suite. The customer assures not to exercise the rights of use granted by yawave improperly, contrary to the contract or unlawfully. The customer is solely liable and fully indemnifies yawave for any infringements committed by him or his users.
45 The customer bears sole responsibility for the content, quality and truthfulness of the content processed and distributed by him using the yawave Software Suite. The customer assures that the content and information neither directly nor indirectly (i.e. in particular via a link to further content and platforms of third parties) violate the rights of third parties, in particular copyrights, name rights, personality rights, data protection rights or trademark rights, nor violate other industrial property rights or competition law (UWG), press law and other regulations (such as lottery, casino, criminal, medical, alcohol, food legislation, etc.) and principles (such as principles of the Fairness Commission) of Switzerland and all countries of destination of this content and information.
46 If the customer uses the yawave Software Suite to send or distribute electronic messages (e-mail, instant messaging, SMS, etc.), he shall refrain from using e-mail addresses, telephone numbers, etc., for which the recipient’s express consent to receive such messages at his address cannot be proven beyond doubt. The customer is also obliged to identify himself as the sender in every message and – subject to further legal provisions – to add an imprint with at least the address and a telephone contact option. Finally, the customer must refer to the possibility of revoking the permission to send messages in every message sent.
47 If the customer uses yawave’s reinforcement functionalities (gamification), the incentive scheme must be in compliance with the local applicable law. Again, the customer bears sole responsibility for such loyalty, points and rewards programs. Rewards may be offered functionally for, for example, successful referrals or conversions such as purchases, subscriptions, visits, etc. It is not allowed to reward sharing activities alone.
48 If the customer violates the aforementioned or additionally stipulated obligations in the contract, he has to compensate yawave for the resulting additional expenses and all damages in full.
49 yawave is also entitled to permanently restrict or discontinue the use of the yawave Software Suite through the customer, if the customer violates the obligations in this paragraph 7, in particular regarding data protection, copyrights, trade secrets, trademark rights, fair competition and related areas, or if the customer uses the yawave Software Suite to distribute offers or information that violate the relevant criminal legislation (e.g. illegal gambling, pyramid schemes, etc.).
8. Rights to software & services, warranty of rights
50 Ownership, industrial property rights, in particular copyrights relating to the yawave Software Suite as well as trademarks and all other rights to the yawave Software Suite, such as in particular concepts, documentation and all rights of use not expressly transferred, shall remain with yawave. The customer is only entitled to the rights to use the yawave Software Suite expressly granted under this agreement.
51 The rights to all work results developed for the customer within the framework of the contractual relationship, such as concepts, designs, sketches, specifications, ideas, schematics, software codes, templates, content, etc. – regardless of whether they are legally protected or not – are also entitled to yawave. yawave grants the customer the right to use these work results for the duration and to the extent of the respective contract.
52 A transfer of rights to work results to the customer beyond the granting of rights of use is to be agreed separately and is only deemed to be completed if the customer has fully met its payment obligations under the contract. Regardless of the above transfer of rights, yawave is allowed to use generic know-how acquired in connection with the provision of services for the customer in the provision of services of a similar or the same kind for other customers and to develop and elaborate work results for others, which are comparable in design and functionality, provided that this is done only and exclusively in such a form that no conclusions can be drawn about the customer by third parties.
55 yawave does not assume any liability or legal or other warranty for third party software or components of third parties (hereinafter “third party software”). For the use of this third-party software, yawave is only responsible if the interoperability or the functionality of the interface between the work results individually developed for the customer and the third party software has been assured by yawave and the disruption of performance is due to errors in the work results of yawave.
56 Notwithstanding the foregoing, yawave assumes no liability or warranty in connection with the use of so-called “Free Software” or “Open Source Software” for the customer. In particular, yawave cannot assure that the use of used Free Software or Open Source Software and its maintenance and support is guaranteed at all. The customer also acknowledges that the use of Free Software or Open Source Software for the customer, depending on the applicable Open Source License, may impose licensing requirements for the publication or public provision of source code.
9. Confidentiality and data protection
57 The parties are obligated to treat business and trade secrets as well as other confidential information worthy of protection exchanged between the parties arising from or in connection with the contract as confidential and not to use them for the purposes of third parties or for their own purposes not covered by these GTC or the contract. The confidentiality obligation shall also apply after termination of the respective contract. After termination of the contract or in the event of premature termination, the aforementioned confidential information on documents or data carriers shall be returned to the respective other party without being requested to do so and – if stored on the respective party’s own systems – deleted or destroyed.
58 yawave processes data of the customer in the context of the provision and billing of services in connection with the yawave Software Suite and other services of yawave. The data processing is regulated in the Data Processing Agreement (DPA), which is part of these GTC. In general, the customer can revoke the consent to certain data processing at any time for the future but acknowledges that in this case yawave may no longer be able to provide its services or not to the original extent. The customer agrees that anonymized user data (including tracking) concerning the usage behavior of the customer’s users may be stored by yawave, as far as this serves the fulfillment of the purpose of the contract, the consultation of the customer as well as the improvement of the performance and usability of the yawave Software Suite and the other services of yawave. The collected data may be used by yawave to advise its entire portfolio of customers and prospects, for self-promotion and market research for its own purposes.
59 If yawave commissions third parties to process data (e.g. for computer center services or payment processing), these third parties may only use the personal data within the scope of the order placed by yawave and not for their own purposes. Apart from this, personal data will only be passed on to third parties if the user has expressly consented to this or if there is a legal or official obligation to do so.
60 When processing personal data, the customer undertakes to comply with the Swiss Data Protection Act as well as all other domestic and foreign data protection provisions applicable in the context of the use of the yawave Software Suite and other services of yawave – namely the GDPR. In this regard, the customer fully indemnifies yawave against the customer’s users and other third parties. The customer undertakes to inform its users in an appropriate form about the data processing and that the responsibility for the data processing lies exclusively with the customer.
61 The customer acknowledges that yawave may be obliged to provide information in accordance with Art. 8 and Art. 9 DSG or in accordance with foreign data protection legislation – namely GDPR. If yawave must provide such information, the customer may be charged for the related services at cost.
62 yawave is entitled to report about customer projects in the context of its marketing communication, e.g. on its reference lists, on yawave.com and its own social media presences, on the occasion of presentations and in the context of press releases. Likewise, yawave is entitled to submit completed customer projects to industry competitions (awards).
63 yawave excludes any liability for damages of any kind, which should result from the use of the yawave software suite (or from the impossibility of use) as well as from the provision of services as well as the other services by yawave. In particular, yawave is not liable for damages caused by errors or malfunctions of telecommunications equipment and networks, transmission errors, technical defects, interruptions, unlawful interference by third parties or capacity bottlenecks and other inadequacies on the part of the providers of telecommunications services or networks. Furthermore, liability for the deactivation of the yawave Software Suite in cases in which yawave recognizes or suspects an attack on its systems that endangers the integrity of the systems and thus the security of the yawave Software Suite as well as the IT infrastructure of yawave is excluded.
64 Only the liability of yawave for damages caused by its own intent or gross negligence (excluding liability for auxiliary persons) is reserved. To the extent permitted by law, the liability set forth above is limited to an amount equal to the total remuneration that the customer has to pay or would have to pay under the contract or until the expiration of a fixed term of the contract or until the first possible date of ordinary termination of the contract.
65 yawave assures the customer that the services will be provided with professional care and according to the current state of the art. yawave guarantees careful selection, instruction and supervision of the employees or auxiliary persons used or called in for the provision of the services as well as of the subcontractors.
66 In connection with the granting of rights of use to software, yawave warrants neither the usability of the software for a specific purpose of use nor the success of the use, but only the available scope of functions within the scope of the information available on yawave.com. The customer also acknowledges that it is not possible for yawave to completely exclude errors of the software under any application or operating conditions.
67 Errors or deficiencies in the services of yawave will, depending on the selected subscription or the individual contractual agreement with the customer, be remedied exclusively within the scope of yawave’s support services according to paragraph 4./4.
12. Contract duration and termination
68 The contract with the customer is automatically renewed for the same term upon expiration of the initially agreed term unless it is terminated by one of the parties prior to the occurrence of the automatic renewal. The termination can be made directly in the account before the renewal and in writing (email, letter) 14 days before the renewal.
69 In case of important reasons, which make the continuation of the contract unreasonable for objective reasons, the parties can terminate the contract immediately without notice. If the contractual relationship is terminated in accordance with this provision, the customer must compensate yawave in full for the services already provided up to the time of termination of the contract for cause. In addition, a claim of the customer for reimbursement of already paid remuneration does not exist in case of termination for cause.
70 Good cause shall be deemed to exist in particular if bankruptcy or composition proceedings have been instituted against the customer or if the customer’s inability to pay has been established in any other way, as well as in the cases set forth in Section VII.
71 The termination must be made in writing by letter or e-mail and is only valid when it is received by the other party. In the case of contracts for services of yawave, which the customer concludes via customer account, the termination can alternatively be made via customer account in selected cases.
72 After termination of the contract, yawave will continue to store the data processed by the customer using the yawave Software Suite on the yawave server infrastructure for 30 days. After 30 days, the customer’s data will be irretrievably deleted.
13. Final provisions
73 yawave reserves the right to adjust the prices and conditions, the services as well as the GTC at any time. Any adjustments yawave will notify the customer in an appropriate manner. If yawave makes a price increase that goes beyond the adjustment to general cost increases or significantly changes the services or the GTC to the detriment of the customer, the customer may terminate the contract with yawave until the effective date of the change to this date extraordinarily. If the customer fails to do so, he accepts the adjustments.
74 If individual provisions of these GTC are not legally effective in whole or in part, or if they lose their legal effectiveness at a later date, or if there are gaps in the contract, this shall not affect the validity of the remaining provisions of these GTC. In such a case, the non-legally effective or missing provisions shall be replaced or supplemented by provisions that come as close as possible to the original economic and legal purpose of the GTC.
75 These GTC as well as the individual contracts are exclusively governed by Swiss law, excluding conflict of law reference norms to foreign law of the Swiss Private International Law (IPRG) or international treaties. The exclusive place of jurisdiction is the registered office of yawave.