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General Terms and Conditions (GTC)

1. SCOPE

These General Terms and Conditions (hereinafter ‘GTC’) apply to all services and products (hereinafter collectively ‘Services’) provided by SmartAngel AG (hereinafter ‘SAAG’) to the customer. The nature and scope of the contractual services are further set out in the Special Provisions relating to the respective services, the provisions of the respective contracts, and the current service descriptions and terms of offer contained in brochures, factsheets or on www.smartangel.ch (‘Contractual Terms’). Subject to Clause 2.

In the event of any inconsistencies, the provisions of the contract and the Special Provisions shall take precedence over these General Terms and Conditions. These General Terms and Conditions shall be deemed to have been accepted by the customer at the latest upon the commencement of the relevant services.

2. PRICES

The prices for products and services, as well as charges for other services, listed on www.smartangel.ch at the time the contract is concluded shall apply. Subscription, activation and any service charges may be amended without prior notice. Partial billing units shall be charged as full units.

3. SAAG’S OBLIGATIONS

SAAG is free to choose the technical resources used to provide the agreed services, unless otherwise specified in the contract. These technical means include, for example, infrastructure, equipment, platforms, transmission technologies and protocols, as well as user interfaces. SAAG endeavours to ensure the impeccable quality of its services. Technical faults within SAAG’s control will be rectified as quickly as possible.

SAAG is exempt from its obligation to perform in cases of force majeure. Force majeure includes all unforeseeable events, as well as events whose impact on the performance of the contract is beyond the control of either party. SAAG is not obliged to monitor the use of services. If a customer’s usage charges rise excessively, SAAG is entitled, but not obliged, to inform the customer of this.

4. THE CUSTOMER’S OBLIGATIONS

The customer is obliged to use SAAG’s services in accordance with the contract throughout the term of the contract and to pay for the services received on time.

Upon signing up or registering, the customer must prove their identity by presenting an official identity document, must provide SAAG with their current name and address details at all times, and must notify SAAG of any changes without delay, either online or in writing. SAAG is entitled to withhold the services it is contractually obliged to provide until the customer has provided accurate and complete details and has verified their identity. The customer’s obligation to pay for the services remains unaffected by this.

The customer must comply with all security instructions recommended by SAAG, in particular by protecting devices from unauthorised access by third parties, regularly backing up data to prevent data loss, and carefully safeguarding login details, passwords or PIN numbers and not disclosing them to third parties. SAAG must be notified immediately in the event of the loss of access details, passwords, PIN numbers, a device or a SIM card. Until such time as notification is given, the customer shall in any event be liable to pay for the services provided via the relevant connection (e.g. in the event of use by third parties).

5. THIRD-PARTY SERVICES

If a service or an additional service is provided by a third party (e.g. value-added services), the customer shall, unless otherwise agreed, enter into a contract with that third party, and that third party’s terms and conditions shall apply. SAAG’s service is limited to providing technical access to the other provider. Depending on the service, SAAG may collect the fees on behalf of that provider and handle the collection process. The customer may block access to value-added telephone services for which SAAG handles collection, either in full or only for specific value-added services, unless SAAG offers the option of a more selective block. SAAG accepts no liability or warranty for other providers or their services.

6. TERMS OF PAYMENT

Invoices are issued on the basis of technical records. A fee is charged for invoices sent by post. The customer undertakes to pay the invoiced amount in advance by the due date stated on the invoice. If no such date is specified, a payment term of 10 days applies.

SAAG may charge the customer for amounts due arising from the use of value-added services or the purchase of services from other third-party providers, together with SAAG’s invoice. The provisions set out in clauses 6 to 8 (except in the case of disputed invoices for value-added services, or any resulting suspension of the connection or termination of the contract prior to the resolution of the dispute) shall also apply where SAAG acts as a debt collector on behalf of third parties.

The customer must submit any objections to the invoice, stating the reasons, to SAAG within 10 days. Otherwise, the invoice shall be deemed to have been accepted by the customer. Any claims for refunds by the customer for overpayments will be credited to the customer’s invoice account and offset against the next invoice due. Upon termination of the contract, all outstanding amounts become due.

7. CUSTODY ACCOUNT AND CREDIT LIMIT

SAAG may require its customers to provide a deposit or make an advance payment upon signing the contract, or where there are reasonable doubts as to the customer’s ability to meet their payment obligations or where debt recovery measures against the customer are known, both at the time the contract is concluded and during the term of the contract, or may set a monthly credit limit. The deposit may be set off against any claims SAAG has against the customer. The customer is entitled to reclaim the deposit no earlier than six months after the contract was signed and no later than upon termination of the contract, provided that all claims by SAAG have been settled.

8. DEFAULT

If the customer fails to meet their payment obligation within the payment period, or if they waive a justified objection, they shall be in default upon expiry of this period without further notice and shall be liable to pay default interest at a rate of 6% per annum. Default shall also occur if a partial amount of the invoice is disputed and the undisputed portion is not paid, or if SAAG has rejected the customer’s objection as unfounded. In accordance with clauses 11 or 17, SAAG may then suspend the services and terminate the contract.

Following an initial free written payment reminder, the customer will be charged a reminder fee of CHF 30 per reminder. SAAG may engage third parties to collect the debt at any time. The customer must pay minimum fees for this and settle these directly with the third party engaged for debt collection. In addition to the minimum fees, the customer must reimburse the third party for any individual costs and expenses incurred in connection with the debt collection.

9. DATA PROTECTION

In connection with the provision of services to the customer, SAAG may, whilst at all times complying with applicable data protection standards, collect personal data itself, obtain it from third parties, store it, process it and disclose it to third parties. Personal data is provided by the customer or generated automatically through the use of the services. It may be processed by SAAG or by third parties engaged by SAAG, both in Switzerland and abroad, for the following purposes:

  • to verify the conditions for concluding a contract;
  • to fulfil contractual obligations towards the customer;
  • to nurture, develop and maintain customer relationships;
  • to customise services or provide personalised content through SAAG or its partners, for example by collecting, analysing or examining user, usage or location data, such as location, biometric data, alerts or medical readings and data, as well as user interests;
  • for address validation;
  • to prevent the unlawful use of services (in particular to prevent fraud when concluding contracts and during the term of the contract);
  • for invoicing, debt collection and creditworthiness checks;
  • for the promotion, design and further development of SAAG products.

If the customer obtains services from third parties through SAAG, SAAG may pass on to the third party such customer data as is necessary for the third party to fulfil its contractual obligations towards the customer.

The customer further consents to data being passed on to third parties for their own purposes, including data used to compile records relating to creditworthiness and credit history, address validation, and data relating to indications of unauthorised use of services. The customer may restrict or prohibit the use of their data for marketing purposes. Personal data may be disclosed abroad within the framework of the foregoing provisions. SAAG may restrict the right of access under data protection law to the right to inspect the data. Disclosure of so-called ‘communication metadata’ – which is generated by services subscribed to by the customer and is subject to telecommunications secrecy – is excluded, provided that such data does not serve as the basis for invoicing.

10. MISUSE

Services must not be used in an abusive manner, i.e. in a way that is contrary to the terms of the contract or the law. The following, in particular, constitute abuse:

  • use of the services for purposes other than those for which they are intended;
  • the resale or provision of services free of charge;
  • the use of services for routing calls on SAAG’s mobile network via GSM gateways or similar equipment;
  • the creation of permanent links, as well as links that result in direct or indirect payments or other consideration from third parties to the customer;
  • the forwarding of calls to short numbers or premium-rate numbers;
  • the distribution of mass advertising or malicious software;
  • the connection of incompatible devices to SAAG’s infrastructure;
  • unauthorised access to or use of data, systems and network elements;
  • excessive use that may lead to system or network overload.

Resale or the provision of services to third parties may only take place with the prior written consent of SAAG. For the purposes of this provision, ‘third parties’ also include companies affiliated with the customer.

The customer must indemnify SAAG against any claims by third parties arising from the customer’s misuse of the services. In the event of any misuse for which the customer is liable, SAAG must be notified immediately.

11. SUSPENSION

SAAG may suspend services in whole or in part, or restrict them to certain services, without prior notice, if (i) there is good cause in accordance with clause 17, (ii) the suspension is in the customer’s presumed best interests, e.g. in the event of misuse by third parties, and (iii) there are reasonable doubts as to compliance with payment obligations, pending the provision of a security deposit in accordance with clause 7. The client shall be notified of the suspension by appropriate means.

The suspension may remain in place until the reason for the suspension no longer applies. If the customer is responsible for the reason for the suspension, their obligation to pay for the service during the suspension remains unaffected, and they may be charged CHF 50 for both the suspension and the lifting of the suspension, as well as any costs for a replacement SIM card.

12. EQUIPMENT

Unless otherwise agreed, any device purchased from SAAG remains the property of SAAG. SAAG reserves the right to make the purchase of a device subject to retention of title. The warranty terms published by SAAG apply to devices. The right to rescind the contract on the grounds of material defects is excluded in all cases.

Equipment loaned to the customer remains the property of SAAG and must be returned to SAAG within 30 days of the termination of the contract or upon request. No liens or rights of retention may be established in respect of this equipment. If equipment loaned to the customer is not returned upon request by SAAG, the customer will be invoiced for it.

13. WARRANTY FOR SERVICES

SAAG undertakes to the customer to provide the contractually agreed services with due care; these services are intended for normal private or business use. However, SAAG accepts no liability for:

  • the uninterrupted and fault-free operation of its services at all times;
  • comprehensive network coverage;
  • specific transmission times and capacities;
  • the integrity of data transmitted or obtained via the SAAG infrastructure or third-party networks;
  • content or services created by third parties or available from third parties;
  • absolute protection of their network or of third-party networks against unauthorised access or eavesdropping;
  • protection against malicious software, viruses, spam, Trojans, phishing attacks, data breaches and other criminal acts by third parties;
  • preventing data loss resulting from network faults or equipment repairs;
  • Safety measures in place within SAAG’s infrastructure designed to prevent damage to the customer’s equipment.

Any changes to emergency instructions are updated at the emergency call centre by the following day at the latest. If an alarm is subsequently triggered, the relevant member of staff at the emergency call centre will take the measures required by the situation. The assessment of risk is at the discretion of the emergency call centre staff member. They act on behalf of the customer to organise assistance as quickly as possible, with the customer’s health always being the top priority. The costs of any assistance arranged by the emergency call centre (e.g. emergency doctor, ambulance, home care service, etc.) are always borne by the customer, even if they triggered the emergency call by mistake.

SAAG reserves the right to carry out maintenance work on the SAAG portal, which may result in service interruptions or slowdowns. The occurrence of such an event does not constitute good cause for extraordinary termination by the customer within the meaning of clause 17.

14. LIABILITY

SAAG accepts no liability for force majeure or for any damage for which SAAG is not responsible, or which has arisen as a result of the suspension or termination of services (clauses 11 and 17). This also includes the improper use of the products (e.g. product not charged, switched off, defective or damaged due to improper use). The products used are not calibrated medical devices and are not intended for use in medical diagnosis. Medical professionals and/or medical organisations must always be consulted in critical situations or when making decisions. Liability for direct, indirect or consequential damages is therefore excluded in all cases.

15. TERM OF THE CONTRACT

The contract shall come into force on the date the customer signs it, subject to a favourable credit check or the provision of the agreed deposit, unless a later date is specified in the contract. In the case of an order placed via the internet, the contract commences when the customer receives the relevant contract confirmation from SAAG in writing or by email. At the latest, the contract commences upon activation or use of the relevant service. A minimum contract term always begins to run from the date the service is activated, regardless of when the contract commences.

16. ORDINARY TERMINATION

Subscriptions must be cancelled by registered letter no later than one month before the current subscription expires. The cancellation provisions set out in the relevant service descriptions apply. Should a service be discontinued, SAAG is entitled to terminate contracts with two months’ notice to the end of any month, regardless of any minimum contract term.

17. TERMINATION FOR GOOD CAUSE

SAAG shall be entitled, where there are valid grounds, to terminate the relevant contracts with the customer or all or any of the services contained therein without notice. Valid grounds shall include, in particular, the following:

  • the customer fails to make the required deposit by the deadline;
  • There are indications that the customer is using the services for purposes contrary to the terms of the contract;
  • a judicial authority issues a final order instructing SAAG to cease providing the service to the customer;
  • the Customer’s use of SAAG’s or third parties’ networks is impaired;
  • There are grounds for believing that the customer provided incorrect or incomplete information when the contract was concluded;
  • the customer is in default of payment or performance following several reminders;
  • where overriding public interests so require;
  • in the event of misuse as defined in clause 10.

Reactivating a terminated contract will incur costs for the customer. The customer has the right to terminate the relevant contract with SAAG without notice if there are valid grounds for doing so. Valid grounds exist, in particular, if:

  • SAAG is at fault for a continuing material breach of contract and fails to remedy this despite a reasonable warning from the customer;
  • the network is unavailable at the customer’s place of residence for more than 7 days (except in cases of force majeure);
  • the customer is moving house and can no longer use the service at their new place of residence in Switzerland.

18. EARLY TERMINATION / FINANCIAL CONSEQUENCES

In the event of death, the contract may be terminated before the end of the minimum contract term without incurring any costs (minimum contract term: 6 months). Any subscription fees paid in excess will be refunded to the heirs. Alternatively, the subscription may be transferred to another person.

In all other cases, early termination is only possible subject to a charge. Regardless of the reason for termination, the agreed lump-sum compensation is payable. If no lump-sum compensation has been agreed, the customer must pay the monthly recurring basic fees until the end of the minimum contract term for the relevant subscription. These become due immediately.

This is subject to any differing provisions set out in the Special Terms and Conditions for the respective services and to termination by the customer on serious grounds. The customer must also pay compensation if the contractual relationship has been terminated by SAAG for good cause attributable to the customer (clause 17). Where a service is converted to one with a lower basic fee, SAAG may demand reasonable compensation.

Certain promotions included in a bundled offer may be subject to a minimum subscription period for the bundled subscriptions. Unbundling these subscriptions will result in an early termination fee. The relevant terms and conditions at www.smartangel.ch apply.

19. AMENDMENTS TO THE TERMS AND CONDITIONS

SAAG reserves the right to amend the terms of the contract at any time if this is justified by SAAG’s legitimate interests. The customer will be notified of any changes in an appropriate manner and with reasonable notice of up to 30 days.

The customer must accept amendments to the terms of the contract for technical, organisational or operational reasons, provided that these are to the customer’s advantage or result in only a negligible reduction in the services provided, without affecting any essential provisions of the contractual relationship. Furthermore, changes are permitted where these are required as a result of statutory provisions (e.g. an increase in VAT or copyright levies) or court orders.

If, in other cases, SAAG changes its prices or services and the total cost (price) to the customer increases or individual services are significantly reduced, the customer may terminate the contract or the relevant services with effect from the date on which the change takes effect, without incurring any costs, in accordance with Clause 18, provided that SAAG does not, within 14 days of receiving the notice of termination, offer the customer, at its discretion, one of the following alternatives: (i) the continued application of the existing contractual terms without change; or (ii) compensation for the total cost incurred by the customer as a result of the change, by appropriate means.

Unless the customer gives notice of termination by the end of the notice period, this shall be deemed to constitute consent to the amendment of the terms of the contract. The amendment or alternative offer shall then form part of the contract. If the amendment relates to an additional service or an option, the right to terminate the contract applies exclusively to that additional service or option.

20. INTELLECTUAL PROPERTY RIGHTS

Any intellectual property rights associated with SAAG’s services or the provision or sale of end-user devices, in particular software, shall remain with SAAG or the respective rights holder. The customer is granted a non-transferable, time-limited and non-exclusive right to use these rights in accordance with the contract. The customer is not entitled to any further rights.

21. OTHER AGREEMENTS

SAAG generally sends business correspondence, including invoices, electronically via email. The email address provided by the customer and stored in their customer account is therefore deemed to be the customer’s delivery address. SAAG may at any time engage third parties, both in Switzerland and abroad, to fulfil the contract. The customer waives their right of set-off in respect of all claims against SAAG.

Any collateral agreements, amendments or additions to the General Terms and Conditions, Special Provisions or other contractual documents must be in writing and signed to be valid. Handwritten amendments are only valid if both parties acknowledge them by signing a separate document. This is without prejudice to the provisions in Clause 19. The customer may only assign rights and obligations under this contract to third parties with SAAG’s written consent. SAAG may assign the contract to third parties without the customer’s consent.

22. JURISDICTION AND APPLICABLE LAW

This contract is governed by Swiss law. The place of jurisdiction is the registered office of SmartAngel AG. This is subject to any mandatory places of jurisdiction under federal law.

SmartAngel AG | January 2023