General Terms & Conditions

 

General Terms & Conditions (GTC)
Version January 2023

 

1 General
The "General Terms and Conditions of Business ("GTC") of Montresa GmbH (service provider) shall apply insofar as no deviating regulation exists for a specific service or for specific customer groups.

2 Subject matter of the contract
This contract regulates the use of equipment and services offered to the customer by the service provider.

3 Services of the service provider
General
Information on the scope of the individual services (services and additional services) can be found in the current brochures, the terms and conditions of the offer and on the service provider's website at www.montresa.swiss. The service provider may engage third parties to provide services. Customers have no entitlement to a specific design of the service provider's infrastructure or to the retention of services accessible via it. The service provider is entitled at any time to discontinue the provision of a service without compensation with reasonable advance notice.

Maintenance
During operating hours, the service provider shall remedy faults within its control within a reasonable period of time. If the service provider is called upon to deal with faults that are not caused by its infrastructure, the costs may be charged to the client. The service provider is entitled to interrupt or restrict operations for the purpose of rectifying faults, carrying out maintenance work, introducing new technologies, etc. The service provider is entitled to charge the client for the costs incurred.

4 Scope of application, prerequisites
The triggering of an emergency call requires, among other things, sufficient coverage of the mobile network necessary for the emergency call service. The emergency call service cannot be provided in dead spots, remote areas, basements, garages and the like or in the event of technical faults in the mobile telephone network. Devices that can retrieve and forward GPS coordinates can only determine these GPS data outdoors. The GPS coordinates may differ from the actual coordinates depending on the area and location.

5 Emergency call centre services
The services of the emergency call centre are standardised and will be charged at the prices current at the time of conclusion of the contract. The emergency call centre will trigger the deployment of an intervention service (police, fire brigade, ambulance, etc.) depending on the type of incoming message or as agreed with the customer and after completion of the verification process. The Client has been informed of this and acknowledges and agrees that the Service Provider has no influence on whether an intervention takes place, nor does it have any influence on the nature of this intervention and the local and factual responsibilities of the notified intervention services.

6 Services of the emergency call centre
The service provider's emergency call centre accepts messages sent to it via the client's device purchased from the service provider for 24 hours every day of the year. In the event of a valid emergency call, the emergency call centre triggers the measures agreed with the client for such an event on the client's behalf (notification of specific persons, calling on emergency organisations, etc.). The call is only triggered

if a corresponding measure has been agreed (the emergency call centre is not obliged to trigger measures if such measures have not been agreed in advance);
if the customer or the owner of the device does not revoke the emergency call as a false alarm in good time.
The costs of any false alarms (e.g. fees of emergency organisations for false activations) shall be borne by the customer. The customer agrees that the calls made to him/her in the course of the service provision may be recorded and that geolocation data may be stored.

7 Services provided by third parties for additional services
In the case of additional services ordered by the Client from the Service Provider which are provided by third parties (third-party service providers), the respective service descriptions and warranty conditions of the third-party service provider apply. In this respect, reference is made to the respective General Terms and Conditions of the Third-Party Service Provider in the respective valid version. These General Terms and Conditions of the Third-Party Service Provider shall be made available to the Client upon conclusion of the order for the respective additional service and are available in the download centre on the website of the Service Provider at www.montresa.swiss.

8 Services of the Client
Payment
The Client is responsible for timely payment for the services purchased.

Passwords etc.
The client is obliged to keep passwords, identification codes, log-in data, etc. safe and not to make them accessible to anyone.

Use in accordance with the law and the contract
The services are intended exclusively for normal use. They may only be used for special applications with the written consent of the service provider. The client is responsible for the use of the services and the connected devices in conformity with the law and the contract. The following are considered to be in breach of the law or the contract in particular

Use of the equipment without emergency (any [unforeseen] situation in which there is an imminent danger to property, animals or the physical integrity of people);
Harassing or disturbing third parties;
hacking (intrusion attempts etc.), spying on other users or their data and fraudulent attacks (phishing);
any form of intrusion into or violation of the privacy of third parties, even if they are in the customer's domain;
Damaging or endangering the infrastructure or equipment of third parties through malicious software or other devices;
Use of the mobile telephone connection integrated in the customer's system for purposes other than making emergency calls and test alarms. If there are indications of use contrary to the law or the contract, the client is obliged to provide the service provider with information about the use.
Responsibility for the content
The client is responsible for the content of the information (language, data in any form) that he has transmitted or processed by the service provider or that he makes accessible to third parties.

Responsibility for use
The client is responsible for all use of his equipment, services and connections, including use by third parties. In particular, he shall pay all amounts invoiced as a result of the use of his services. This also applies to goods or services purchased or ordered from the service provider (for its own account or for the account of third parties) via its connections or its equipment. The Client shall in all cases be responsible for the payment of third-party charges (fire brigade charges for false alarms, installation, transmission charges, cantonal levies, etc.). If the Client makes the services obtained from the Service Provider available to minors or persons with legal guardians, the Client shall be responsible for compliance with the relevant legal provisions.

9 Cooperation of the client
The client is obliged to agree in advance with the emergency call centre on its procedure in the event of an emergency call. The customer shall also inform the emergency call centre in good time, in writing or by telephone:

any change in his customer details, namely the address and the telephone number at which he can be reached. This also applies to the details of third parties to whom he has passed on the equipment for use;
any change in instructions regarding the arrangements to be made by the emergency call centre. The notified changes shall come into force at the earliest 24 hours after the time at which the service provider or its emergency call centre is in possession of all the necessary information, instructions and powers of attorney from the client. Until then, the original information is authoritative for the emergency call centre. The client expressly authorises the service provider or the emergency call centre to take the measures that have been agreed. In particular, he authorises the service provider or the emergency call centre to exercise domiciliary rights on his behalf in the event of a report, to arrange for the intervention of state authorities and to take all other actions to avert damage in the name of and on behalf of the client. For this purpose, the Client undertakes, among other things, to provide the Service Provider at any time with the written powers of attorney required by the Service Provider, which are necessary vis-à-vis third parties for the purpose of providing the Service.

10 Duties of the Client
The services associated with the equipment require the specific and adequate cooperation of the client. It is the customer's duty to take note of the operating instructions and other documentation and to observe the recommendations contained therein. If the customer hands over the equipment to a third party, he shall ensure that this third party is able to operate the equipment correctly and understand and apply the relevant service functionalities. This applies in particular if these third parties are children, elderly persons, persons with medical problems, employees of a company and the like.

The Client hereby declares that these third parties have given their consent to all actions and measures taken by the Service Provider within the scope of the performance of this Agreement (namely consent to the storage of personal data, call recordings, geolocation, notification of third parties, etc.). The Client shall at all times indemnify and hold harmless the Service Provider from and against any claims of such third parties.

The Client undertakes to regularly check the functionality of the devices, in particular the state of charge and the charging behaviour of the battery. The service provider recommends that at least one test call be triggered every month, during which the client will inform the emergency call addressees in advance. The client shall ensure that alarm contacts are entered correctly and that the emergency call recipients are instructed on how to behave in the event of an emergency call. Alarm contacts or call numbers of blue-light organisations such as the police, fire brigade, ambulance etc. cannot be used. The Client shall notify the Service Provider in writing or by telephone of any change in the billing address and any operational or other addresses.

11 Equipment at the customer's premises/end devices
General
The Client shall set up, maintain and remove (at the end of the subscription period) the necessary infrastructure (equipment, hardware, software, etc.) in good time and at its own expense. The use of the services requires the use of suitable equipment by the customer. If the client uses equipment or services other than those supplied or recommended by the service provider, it does so at its own risk. In this case, the Service Provider is not obliged to provide services in relation to such equipment or services. In particular, it is not obliged to respond to reports of such third-party devices or services, to enable their functionality or conformity or otherwise to counter any malfunctions. The client is responsible for the acquisition, installation, functionality and legal conformity of its infrastructure. The service provider does not grant the client any investment protection.

Access by the service provider to the client's equipment
For the purpose of configuration, maintenance or optimisation or expansion of its services, the service provider is entitled at any time to access the infrastructure or equipment used for the provision of services via the telecommunications network or by other means and to retrieve, view, store, modify, update or delete technical data or software available there. Within the scope of this access, the service provider gains insight into those files of the client that are directly related to the configuration of the device and the services. The service provider shall not be liable for any damage to the client's infrastructure or equipment occurring after such access, unless it can be proven that such damage was caused by the service provider's access.

Protective measures
The Client shall protect its infrastructure, equipment and data from unauthorised access by third parties. He shall take measures - in accordance with the state of the art - in particular to prevent his infrastructure and devices from being used for the dissemination of illegal or otherwise harmful content (in particular unfair mass advertising [spam], fraudulent messages [phishing e-mails/SMS], fraudulent Internet pages [e.g. fake log-in pages], harmful software such as viruses, Trojan horses, worms, etc.). If a customer's device damages or endangers a service, a third party or the service provider's or third party's equipment, or if the customer uses unauthorised devices, the service provider may, without prior notice and without compensation, discontinue its service provision, have the customer's device disconnected from the telecommunications network and claim damages.

Rental equipment owned by Montresa GmbH
If Montresa GmbH provides a device on a rental or loan basis, it remains the property of Montresa GmbH for the entire period of use. The establishment of lien and retention rights in favour of third parties is expressly excluded. In the event of seizure, retention or arrest, the customer is obliged to inform Montresa GmbH immediately and to inform the responsible debt enforcement or bankruptcy office of the ownership of Montresa GmbH. Upon termination of the service purchase, the customer is obliged to return the device undamaged and within 10 days to Montresa GmbH. If the customer does not comply with this obligation, Montresa GmbH reserves the right to charge for the non-returned device.

12 Prices
General
The current prices and fees of the service provider published on www.montresa.swiss shall apply. The service provider may announce prices and fees immediately before the use of a particular service.

Start of payment obligation; blocking
As a rule, the obligation to pay begins when the contract is concluded or when the contract is amended. Even during the possible blocking of a service, the customer will be charged the contractually owed prices. Unless otherwise required by law, the service provider shall charge a fee for blocking and unblocking.

13 Misuse
If the use deviates significantly from the usual use or if there are signs of behaviour contrary to the law or the contract, the service provider may require the client to use the service in accordance with the law and the contract, change, restrict or discontinue its service provision without prior notice and without compensation, terminate the contract without notice and compensation and, if necessary, demand compensation and indemnification from third-party claims. The same shall apply in the event of inaccurate or incomplete information provided by the customer when concluding the contract or placing the order.

14 Invoicing and terms of payment
General
The service provider shall issue the invoice on the basis of its records. The invoice amount shall be paid by the due date stated on the invoice. If no such date is stated, the due date shall be the invoice date plus 30 days. Objections by the client to the invoice must be made within three months of the disputed use. Thereafter, the invoice shall be deemed accepted by the customer. If the objections concern only part of the invoice, the service provider may require that the unobjected part of the invoice be paid in due time. Upon termination of the contract, all outstanding amounts (i.e. also residual running fees until the expiry of any minimum subscription or extension period still in progress) shall become due. Each party may set off undisputed counterclaims.

Default of payment
If the client has not paid the invoice by the due date or raised written and justified objections to it, he shall be in default without further ado and the service provider may, to the extent permitted by law, interrupt the provision of all services, take further measures to prevent growing damage and/or terminate the contract without notice and without compensation. The client shall bear all costs incurred by the service provider as a result of the delay in payment. In particular, the client owes the service provider interest on arrears of 5% and a reminder fee of CHF 30 per reminder. In the event of collection by third parties, the Client shall owe additional fees for their collection efforts. If the Client's account is not covered by direct debit, the Service Provider may charge a processing fee of at least CHF 40.

Security
If the service provider has doubts as to whether the terms of payment will be complied with in accordance with the contract, or if the collection of receivables may become more difficult, the service provider may also demand an advance payment or security. If the client fails to make such payment, the service provider may take the same measures as for late payment. Collateral in the form of a cash deposit shall bear interest at the market interest rate for savings accounts. The service provider may set off any claims against the client against collateral provided.

Ordering or purchasing goods and services
For goods and services charged by invoice, Clause 7 shall apply - subject to statutory provisions - even if the service provider is only responsible for collecting payments for deliveries or services provided by third parties. The goods remain the property of Montresa GmbH until full payment has been made.

End of the payment obligation
The obligation to pay ends at the earliest with the return of the rented equipment to Montresa GmbH.

15 Telephone numbers and further addressing elements
There is no entitlement to the allocation or retention of a specific telephone number or other specific addressing element (e.g. IP address). The service provider makes them available to the client for use. They do not become the property of the client and can therefore not be sold, pledged, inherited or otherwise transferred to third parties, unless the service provider expressly agrees. The service provider may take them back or change them without compensation if official, operational or technical reasons so require or in the event of call number disputes between private parties. Subject to transfer to another provider, the addressing elements shall revert to the service provider without compensation upon termination of the subscription to the corresponding service and may be allocated to other customers.

16 Data protection
General
When handling data, the service provider complies with the applicable legislation, in particular telecommunications and data protection law. The service provider only collects, stores and processes data that is required for the provision of the services, for the handling and maintenance of the customer relationship, namely the guarantee of a high quality of service, for the security of the operation and infrastructure and for invoicing.

The client consents that the service provider:

obtain information about him/her in connection with the conclusion and execution of the contract and/or pass on data concerning his/her payment behaviour;
may pass on his data to third parties for collection purposes;
may process his or her data for marketing purposes, namely for the needs-based design and development of its services and for tailor-made offers;
may record calls and store them for a maximum of 6 months;
store the customer's geolocation data.
The customer may restrict or prohibit the use of his data for marketing purposes.

Provision of services together with third parties
If a service is provided by the Service Provider together with third parties or if the Client purchases services or goods from third parties via the Service Provider's facilities, the Service Provider may disclose data about the Client to third parties to the extent necessary for the provision of such services or the delivery of goods. The Client acknowledges that third parties may independently exercise their rights vis-à-vis the Client to the extent affected by this Agreement.

Data processing abroad by commissioned third parties
In the course of providing its services, the Service Provider also relies on products and services from manufacturers and suppliers abroad, who may access personal data or telecommunications data on the Service Provider's systems from abroad or process such data at their locations abroad in the course of fulfilling their orders, for example when providing maintenance services. Locations of foreign suppliers and service providers may be in the USA or in other countries where the applicable data protection laws offer a lower level of protection than in Switzerland. In this case, we ensure adequate protection in accordance with the laws applicable in Switzerland, for example by concluding so-called EU Model Clauses with the recipients. These are a set of contractual clauses introduced by the European Commission to provide adequate protection for personal data in cross-border transfers.

17 Intellectual property
For the duration of the contract, the customer shall receive the non-transferable, non-exclusive right to use and exploit the services and products, insofar as they have not become his property. The content and scope of this right are set out in the contractual documents. All intellectual property rights that already exist or arise in the course of the performance of the contract and are connected with the services and products of the service provider remain with the service provider or the authorised third parties. In particular, the Client is prohibited from decompiling the software used, developing products based on it, removing copyright notices or otherwise using it in a manner not explicitly permitted by the contract. If the Client infringes the intellectual property rights of third parties and a claim is made against the Service Provider for this, the Client shall indemnify the Service Provider.

18 Restrictions on use/warranty
Interruptions
The service provider shall endeavour to ensure a high level of availability of its services. However, it cannot guarantee that the equipment supplied, the telecommunications networks it uses (in particular the mobile network), its infrastructure or its services will function without interruption or fault.

Third-party networks and services
There are no assurances or guarantees regarding availability, quality, operation or support with regard to the networks used for the services of the service provider.

Risks associated with the use of services; measures taken by the service provider
The Service Provider takes precautions to protect its facilities and its electronic communications with the Client from third party interference.

However, it cannot guarantee that

the infrastructure used is fully protected against unauthorised access or interception;
spamming, malicious software, spyware, hacking or phishing attacks, etc. do not impair the use of the Service or damage the Client's infrastructure or equipment or otherwise harm the Client.
The service provider is entitled to check the devices connected to the telecommunications network for security defects, to use filters and to take other measures to protect the infrastructure of the service provider, of customers and of third parties from illegal or otherwise harmful interference or to prevent use that is contrary to the law or to the contract.

Contents
The service provider cannot accept any responsibility for

Content that the client has transmitted or processed by the service provider or that the client makes accessible to the service provider or third parties;
content that the client receives via the telecommunications networks used;
the accuracy, completeness, timeliness, legality and appropriateness, availability and timely delivery of information created by third parties, made available by third parties or made accessible via the service provider's services.
Relocation
If the client moves, the service provider cannot guarantee that the services will be offered to the same extent at the new location or that the equipment purchased by the client can be (re)used at the new location. Likewise, the fees for services may vary depending on the location.

Terminal equipment
The service provider provides a two-year warranty on all equipment purchased from it. In the event of a defect for which the customer is not responsible, the customer is entitled to send the device in question to Montresa GmbH together with the proof of purchase or the warranty certificate. Depending on the defect, the service provider will repair or replace the device with a new or equivalent device free of charge. Any further legal or material warranty is excluded to the extent permitted by law.

19 Liability of the service provider
General liability provision
In the event of a breach of contract, the service provider is only liable for the proven damage, unless it proves that it is not at fault. Liability for damages due to slight negligence is excluded. However, the service provider shall compensate for material damage and financial loss per damage event up to the equivalent value of the services received during the last contractual year, up to a maximum of CHF 10,000. The service provider's liability for consequential damage, loss of profit or loss of data is excluded in all cases - to the extent permitted by law. It shall also not be liable for damages resulting from the use of its services or the equipment purchased or rented by the client in violation of the law or the contract.

Force majeure
The service provider shall not be liable if the provision of the service is temporarily interrupted, wholly or partially restricted or impossible due to force majeure. Force majeure includes natural events of particular intensity (avalanches, floods, etc.), warlike events, strikes, unforeseen official restrictions, power failure, virus attack, failure of telecommunications connections, etc.

Purchase of goods or services from third parties
If the client purchases goods or services from third parties via its facilities, the service provider is not a contractual partner unless expressly agreed otherwise. The service provider accepts no liability or warranty for goods or services ordered or purchased in this way, even if it carries out the collection in this respect.

20 No guarantee for third party intervention
The client acknowledges that the requirements for an intervention, the intervention profiles or intervention times of any intervention services to be provided vary from place to place and that the service provider has no influence on this. The service provider therefore accepts no guarantee or liability that a measure triggered by the emergency call centre will lead to an intervention by the service concerned at all or in good time. However, the client is in any case obliged to make enquiries with the locally responsible services and, based on this, to take the necessary precautions and notify the service provider.

21 Duration and termination
General
The contract shall run for an indefinite period. It may be terminated by either party with 30 days' notice to the end of a calendar month. Notice of termination may be given for the entire contractual relationship or - where applicable - for any individual services. Cancellation is possible as soon as the minimum subscription or renewal period for the service in question is no longer running. Cancellations must be made in writing, unless the service provider accepts a cancellation in another form in individual cases. Specific agreements on options with a different, in particular shorter, fixed term are reserved.

Minimum subscription and renewal period
Minimum subscription and renewal periods may be stipulated in other contractual documents for all or individual services. During these periods, changes to the service package at the request of the client are not possible or are only possible with the cost consequences determined by the service provider. If the client terminates the contract during the minimum subscription or renewal period ("prematurely") or if the service provider terminates a service prematurely for one of the reasons stated in clause 8, the client shall owe the service provider the remaining running fees until the expiry of the minimum subscription or renewal period. Deviating regulations remain reserved. If the service provider terminates a service prematurely without a reason as set out in clause 8, the customer shall not owe any residual running fees.

22 Overview of services
The Service Provider may provide the Client with a service overview in a suitable form for certain or all services that the Client obtains from the Service Provider. If the Client does not request a correction of incorrect information within the period and in the form specified on the service overview, the service overview will become part of the contract. If the service provider discovers that the service overview is incorrect, it may send the client a corrected version.

23 Changes
Changes to prices and services
The service provider reserves the right to adjust its prices and services at any time. The service provider shall notify the client of any changes in an appropriate manner. If the service provider increases prices in such a way that they result in a higher total charge for the client, or if the service provider significantly changes a service purchased by the client to the detriment of the client, the client may prematurely terminate the service in question without financial consequences until the change comes into force on that date. If the client fails to do so, he/she accepts the changes.

Changes to the GTC
The service provider reserves the right to amend the GTC at any time. The service provider shall inform the client in advance of any changes to the GTC in a suitable manner. If the changes are detrimental to the client, the client may terminate the contract with the service provider prematurely without financial consequences until the change comes into force on that date. If the client fails to do so within one month, he/she accepts the changes.

24 Transfer
The transfer of the agreement or of rights or obligations arising from this agreement requires the prior written consent of both parties. The Service Provider may transfer this Agreement or any rights or obligations hereunder to another company without the Client's consent, provided that the Service Provider directly or indirectly controls that company or is directly or indirectly controlled by that company. Furthermore, the Service Provider, but not the Client, is entitled to transfer or assign existing or future claims under this Agreement to third parties.

25 Jurisdiction and applicable law
The contract is subject to Swiss law. The exclusive place of jurisdiction is Winterthur. Mandatory places of jurisdiction remain reserved (cf. in particular Art. 32 and 35 ZPO for consumers).

 

Further information:

montresa GmbH
Brunnenweg 6
CH-8542 Wiesendangen
E-mail: support@montresa.swiss
Hotline: +41 79 208 88 84
(daily from 08:00 to 17:00)
www.montresa.swiss