These General Terms and Conditions (hereinafter: «GT&Cs») govern the use of all fibre optic (FTTH)/wireless (WireLess) internet connections and internet services provided by Nimag.
Networks Sàrl (“Nimag”) to the customer.
Nimag's offers may refer to these GTC, which then form an integral part thereof.
In the event of a contradiction between the general terms and conditions and the Nimag offer, the terms of the offer shall prevail.
«Nimag» means Nimag Networks s.à.r.l, CHE-101.045.709, Rue de Sébeillon 9 B, 1004 Lausanne, Switzerland.
« Client » means the natural or legal person who has entered into a Contract with Nimag.
«Contract» means the contractual relationship concluded with the Client, which encompasses the T&Cs and the offer.
«Data» means information of any kind, transiting over the Network and/or stored on a Server controlled by the Client and belonging to the Client.
«Personal Data» means the Client's personal data within the meaning of Article 3 letter a of the Federal Act on Data Protection (RS. 235.1; FADP), including sensitive data within the meaning of Article 3 letter c FADP.
«Force Majeure» means circumstances beyond the reasonable control of a Party as generally recognised by Swiss case law, including, without limitation, natural phenomena, government measures, acts of terrorism, demonstrations, fires, explosions, floods, epidemics, plant blockages, strikes or other labour disputes (whether or not these disputes concern the employees of a Party), accidents, plant breakdowns, failures, hindrances or delays of carriers or telecommunications operators, power outages, Network maintenance, cable breaks or damage, impossibility or delay in obtaining appropriate and necessary supplies or materials, seizure or other measures taken by or on the order of an apparently competent authority.
«Parties» means the parties to the Contract, namely Nimag and the Customer.
«Services» means the services defined in Article 3 of these T&Cs and in the quotation.
«Royalties» means royalties payable by the Customer on a monthly basis as set out in the Offer.
«Network» means the entire Swisscom AG fibre-to-the-home (FTTH) internet network.
«Territory» means the territory agreed between the Parties in the Offer.
3.1 Within the scope of existing technical and operational possibilities, Nimag provides the Client with an Internet connection giving them access to the Network.
3.2 Nimag undertakes to do everything possible to ensure the maintenance of the Network access provided to the Client.
3.3 The Client declares that they are aware of the Services, having been able to review the details of these, their characteristics, Nimag's infrastructure, and network connectivity, and having been able to question Nimag in this regard, prior to signing the Contract.
3.4 The Customer therefore declares that the Services meet its needs, to the exclusion of any particular needs that have not been previously communicated to Nimag.
Nimag takes measures to protect the Network, to which it grants the Client access, against illicit intervention by third parties. Absolute protection against illicit access cannot, however, be guaranteed. Nimag shall not be held liable for such misuse.
5.1 In order to fulfil its contractual obligations and provide the services, Nimag reserves the right to call upon third parties at any time.
5.2 Subject to compliance with data protection rules (see Article 14), Nimag may delegate the performance of its obligations:
5.3 In case of subcontracting, Nimag's liability is limited:
5.4 The Client agrees that Nimag may use third-party networks to provide its services.
6.1
As part of the services, Nimag shall sell to the Client a router/transceiver/antenna (the «box») enabling access to the network.
6.2
The price of this equipment is included in a subscription taken out for a period of two (2) years.
6.3
Nimag guarantees that the equipment corresponds to the characteristics described in the provided documentation («Documentation»).
6.4
In accordance with Swiss law, equipment complies with the safety standards in force at the time of its placing on the market.
Guarantee
6.5
The equipment benefits from a two (2) year contractual warranty, provided it is used in accordance with the Documentation.
All warranty requests must be sent to Nimag within this period, accompanied by the required documents and a precise description of the defect.
6.6
The warranty begins on the date the contract is concluded.
6.7
The Customer must check the goods immediately and report any defects without delay.
Defects appearing after use must also be reported immediately.
6.8
In the event of a defect covered by the warranty, Nimag shall, at its discretion:
Replacement equipment can be provided on a temporary basis.
All other rights are excluded.
6.9
The warranty only applies upon presentation of:
Nimag may refuse warranty in the event of incomplete or inconsistent documents.
The warranty does not cover defects resulting from, but not limited to:
Limitation of liability
6.11
The equipment is supplied «as is».
No other warranties are granted beyond those mentioned in these T&Cs or the documentation.
6.12
Nimag shall not be liable for any damage, direct or indirect, arising from the use or misconfiguration of equipment, unless proven gross negligence.
6.13
Nimag's liability shall in any event be limited to the purchase price of the equipment.
Clients are responsible for:
7.1.1
Customers are solely responsible for:
equipment necessary for the use of the services (cabling, router, computer, mobile device, browser, etc.).
7.1.2
Nimag does not guarantee the compatibility of services with all equipment or configurations.
7.1.3
Nimag declines all responsibility and will not reimburse any costs in the event of damage to the Customer's equipment, particularly in the event of non-compliant downloading or use.
7.2.1
The Customer must provide accurate information when entering into the contract.
7.2.2
The Client shall:
Passwords must be stored securely.
The Customer is fully responsible for their use.
7.2.3
The Customer must protect their equipment and data against any unauthorised access and prevent any risks (viruses, malware, etc.).
7.2.4
If the Customer's equipment causes damage to the network, Nimag may:
7.2.5
Nimag can control equipment to detect security flaws and require corrective measures. If the problem persists, the Client will have to modify or cease using their equipment at their own expense.
The Customer is responsible for all use of their connection, including by unauthorised third parties.
He must bear all costs associated with this use.
7.4.1
The bandwidth is suitable for standard professional use.
7.4.2
The Customer undertakes not to make excessive use of the connection (heavy downloads, continuous streaming, etc.).
7.4.3
Nimag reserves the right to limit or suspend connectivity in the event of misuse.
The Client undertakes not to:
In the event of proceedings or damage caused to Nimag due to non-compliant use:
The Client undertakes to actively collaborate with Nimag and its partners to enable the proper execution of the services.
8.1.1
Nimag undertakes to provide the services in accordance with the Agreement, with all due care and in accordance with current professional standards.
8.1.2
Nimag guarantees that it has all the necessary rights to provide the services.
8.1.3
Nimag guarantees compliance with the service and availability levels defined in the offer.
8.1.4
These guarantees do not apply:
8.1.5
All other warranties are excluded.
Nimag does not respond, among other things:
8.1.6
Nimag offers no guarantees regarding:
8.1.7
The Client acknowledges that the services may be interrupted and depend on third parties (notably Swisscom).
8.1.8
Nimag does not guarantee the quality of the signal, streams or content accessed via the network.
8.2.1
The Client warrants:
8.2.2
Nimag may request written evidence concerning these guarantees at any time.
8.2.3
In case of doubt about legality or compliance with obligations:
She informs the Client without delay.
Nimag can also interrupt any illegal content or content ordered by a competent authority.
8.2.4
The Client undertakes to:
in the event of a claim, damage or proceeding related to a breach of its obligations.
9.1
The Client agrees that Nimag shall provide maintenance for the services and/or the network.
9.2
Maintenance is carried out in accordance with the service levels and availability defined in the proposal.
9.3
Nimag makes every effort to ensure the smooth operation of the network. Maintenance periods are not taken into account when calculating service availability.
9.4
The cost of maintenance is included in the royalties.
10.1.1
Nimag's offers are non-binding.
The contract takes effect only upon acceptance and signature of the offer by the Client.
10.1.2
The contract is concluded for an initial period of twenty-four (24) months from its signature.
10.2.1
At the end of the initial term, the contract will be automatically renewed for a period of twelve (12) months, unless terminated by either party with two (2) months' notice prior to the end of a month, by registered letter with acknowledgment of receipt.
10.2.2
In the event of early termination by the Customer, the Customer shall remain liable for the full amounts due until the end of the minimum contract term.
10.2.3
Each party may terminate the contract with immediate effect for just cause, including in the event of:
10.2.4
This right of termination applies only against the defaulting party.
10.2.5
When the situation can be rectified, the concerned party must:
If the termination only concerns part of the services, the other contractual provisions remain fully applicable.
11.1
The prices stated in the offer are binding.
The Client accepts these prices by using the services provided by Nimag.
In the event of a rate reduction, Nimag reserves the right to simultaneously adjust:
11.2
Nimag reserves the right to adjust its prices in line with the Swiss Consumer Price Index.
11.3
Nimag also reserves the right to pass on to Customers any increase in costs, particularly those related to taxes or duties, and to adjust its prices accordingly.
12.1.1
The services are invoiced monthly.
12.1.2
The Customer is obliged to pay the fees in accordance with the prices defined in the offer.
12.1.3
All amounts are shown exclusive of VAT and any applicable taxes.
12.1.4
Royalties remain due even in cases of temporary unavailability or degradation of services, except in cases of termination for just cause.
The Customer expressly waives any set-off between amounts owed to Nimag and any claims it may have against it.
12.1.5
Invoices must be paid within the stated timeframe.
In the absence of payment by the due date, the Customer shall be automatically in default.
The Customer may dispute an invoice in writing before its due date.
In the absence of a dispute, the invoice shall be deemed accepted.
12.1.6
In the event of partial dispute, the undisputed portion of the invoice must be settled within the agreed timeframe.
12.2.1
In the event of non-payment or the absence of a dispute within the time limits, Nimag may, after a reminder that has been ignored:
A reminder fee of CHF 20.– may be charged per reminder.
All fees related to late payment shall be borne by the Client.
In case of payment by direct debit:
12.2.2
If the Client is late with payment or if Nimag has reason to believe that they will not meet their obligations, Nimag may suspend services until full payment of the amounts due is received.
Nimag may require:
if the Customer's solvency is uncertain or if the recovery of debts presents a risk.
In case of refusal, Nimag may apply the same measures as in case of late payment.
Nimag can also offset its receivables with the guarantees provided.
13.1.1
The Client is solely responsible for the content (data, information, files):
Nimag accepts no responsibility for this content or any content accessible through the network.
13.1.2
The Customer undertakes not to distribute any content that:
13.1.3
Nimag cannot be held liable for these contents and reserves the right to take action against the Client in the event of damage.
13.1.4
The Customer undertakes not to misuse the services, particularly:
13.1.5
The Client acknowledges that Nimag is not involved in:
The Client is solely responsible for backing up their content and data.
The Customer must use the services:
13.4.1
In case of misuse or illegal use, Nimag may, at its sole discretion:
13.4.2
The same measures can be taken if:
13.4.3
In the event of termination for these reasons, the Customer remains liable for the amounts due.
13.4.4
The Client shall bear all consequences arising from non-compliant use, in particular:
Nimag is committed to respecting:
Technical and organisational measures are being implemented to ensure data security.
Nimag collects, stores and processes the necessary personal data:
The Customer agrees that their personal data may be used for:
Personal data may be transferred to third parties (in particular subcontractors) when necessary:
The Client authorises the transmission of their data abroad, provided that:
Certain data (such as IP addresses) may be automatically logged for technical and legal reasons.
Nimag also respects the obligations relating to the surveillance of telecommunications.
In case of a legal or judicial request, certain data may be retained or transmitted in accordance with the law.
The Client authorises Nimag to use their data internally to ensure optimal service.
The data can be used to:
Nimag is committed to not disclosing personal data to third parties, except:
In the event of a third-party request, this will be redirected to the Client.
If a transmission is legally mandatory, Nimag will inform the Customer as far as possible.
Nimag may use external providers (e.g. customer support).
The latter
Nimag remains responsible for compliance with these obligations.
15.1.1
Throughout the term of the contract, the Client has the right:
to use Nimag's services and access the network.
15.1.2
All intellectual property rights (including:
relating to the services, equipment and network, whether existing or developed under the contract, remain the exclusive property of Nimag or its partners.
15.1.3
The Client undertakes to:
15.1.4
No transfer of intellectual property is made between the parties.
All acquisition of rights by use is excluded for the duration of the contract.
15.1.5
The Client is solely responsible for the rights related to the content they distribute via the network.
He must, in particular, obtain, at his own expense:
Nimag accepts no responsibility for this.
Subject to the payment of royalties, Nimag grants the Client:
allowing them to use the services, equipment, and network in accordance with the contract, within the defined territory and for the entire duration of the contract.
16.1
Nimag provides the Swisscom network on the same terms and conditions as Swisscom itself.
Nimag cannot be held liable if Swisscom interrupts or ceases access to the network for any reason whatsoever.
16.2
Nimag is committed to providing a functional service where possible.
However, it does not guarantee continuous, uninterrupted or disruption-free operation.
16.3
Nimag reserves the right to temporarily suspend services and network access:
16.4
No guarantee is given regarding:
relating to communications or data transmission via the network or via third-party providers.
17.1
Nimag undertakes to make every effort necessary to carry out the services, but is only bound by an obligation of means.
She cannot be held liable for network unavailability due to Swisscom or a third party.
17.2
Nimag can only be held liable in the event of:
All other liability is excluded.
17.3
Nimag cannot in any circumstances be held responsible:
17.4
Nimag is not responsible for damages, including:
whether they are foreseeable or not, and whatever the legal basis invoked.
17.5
Nimag disclaims all liability in the event of the Client using the services in a manner that does not comply with the law or the contract.
17.6
Nimag cannot be held responsible:
17.7
Nimag does not cover costs relating to:
These costs remain payable by the Client, particularly if the problem originates from their equipment.
17.8
In the event of potential damage, the Customer must inform Nimag immediately.
Each party undertakes to limit harm.
17.9
Nimag's liability cannot be engaged if the Customer has not reported the damage within three (3) months.
17.10
Nimag's total liability is, in all cases, limited to an amount equivalent to three (3) months of billing.
18.1
Neither party shall be held liable for any delay or failure to perform its obligations under the contract if such delay or failure is due to an act of God.
18.2
Force majeure suspends contractual obligations for its entire duration.
If it extends beyond thirty (30) consecutive days, either party may terminate the contract by right, without indemnity, after eight (8) days' notice given by registered letter.
18.3
Nimag cannot be held liable if the services are temporarily interrupted, limited, or impossible to provide due to a force majeure event.
When the Customer uses their connection to purchase goods or services from third parties:
Nimag disclaims all responsibility and warranty regarding these transactions.
20.1
Nimag reserves the right to modify at any time:
20.2
Amendments will be communicated to the Client appropriately (via email, post or on the website).
20.3
In the event of a disagreement, the Customer may terminate the contract within thirty (30) days of the modifications coming into effect.
Failing that, the use of the services constitutes acceptance of the new terms and conditions.
20.4
Unless notice of termination is given, any change to or increase in prices shall be deemed to have been accepted.
20.5
In the event of any changes to taxes or duties (including VAT), Nimag reserves the right to adjust its prices without the Client being entitled to terminate the contract prematurely.
21.1
Nimag may suspend the execution of the contract and the provision of services in the event of:
21.2
In the event of non-payment by the due date, Nimag shall send the Customer a formal notice to pay within fifteen (15) days.
21.3
In the event of non-payment within the deadlines:
Nimag may suspend all services without prior notice.
The amounts due remain payable until the end of the contract.
21.4
The Customer shall not be entitled to any compensation, including for indirect damages, in the event of suspension of services due to non-payment.
21.5
The suspension of the contract does not prevent Nimag from:
Any rights acquired by Nimag remain valid despite suspension or termination.
22.1
Unless otherwise agreed, termination of the contract by the Customer, including for exceptional reasons, shall not result in the termination of other contractual relationships between the parties.
22.2
The provisions which, by their nature, are to continue to apply after the termination of the contract shall remain in force.
23.1
The Customer may not transfer its rights or obligations to a third party without Nimag's prior agreement.
23.2
Nimag may transfer its rights and obligations to:
24.1
The contract supersedes any prior agreement, exchange or negotiation between the parties concerning its subject matter.
24.2
The validity of the contract depends on obtaining the necessary authorisations for its execution.
24.3
Any amendment or waiver of the contract must be in writing, unless otherwise agreed by the parties.
24.4
Any set-off of claims by the Customer requires Nimag’s prior consent.
24.5
If a clause of the contract is invalid or void, the other provisions remain applicable.
The clause concerned shall be replaced by a provision as close as possible to the original intention.
The contract, including these general terms and conditions, is governed exclusively by Swiss law.
The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
26.1
In the event of a dispute, the parties undertake to seek an amicable resolution before taking any legal action.
In the absence of an agreement within twenty (20) days, each party may refer the matter to the courts.
26.2
Any dispute relating to the contract shall fall under the exclusive jurisdiction of the courts of Lausanne, unless otherwise provided by mandatory statutory provisions.
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