Wilmaa Ltd. (hereafter ‘Wilmaa’) operates an interactive Web-TV on the www.wilmaa.com and http://watch.wilmaa.com websites (hereinafter ‘websites’) and via mobile apps (hereinafter ‘mobile apps’), and in this context offers various web services, both free of charge and chargeable (hereinafter ‘web services’). The various web services currently available can be found on the websites and mobile apps of Wilmaa. Users (hereinafter referred to as “customers”) can receive and use the web services from Wilmaa using various terminals, such as TV sets, personal computers, tablet computers and mobile phones (hereinafter ‘terminals’). The General Terms and Conditions (hereafter ‘Web Services Terms’) apply to all web services from Wilmaa used by the customer.
Wilmaa reserves the right to extend, modify and limit the currently available web services at any time, and to replace existing web services with new ones.
Use of the web services confirms that the customer agrees with the validity of these Web Services Terms.
In order to make use of the web services offered by Wilmaa, the customer must register on-line with Wilmaa. When registering, the customer is required to provide accurate and truthful information (user data) and to update this data whenever there is a change.
Customers are not permitted to give third parties access to their account or registration data. They are responsible for maintaining the confidentiality of their user data and must ensure that it is protected from unauthorised access by third parties. If a customer suspects unauthorised use of their user data, they are obliged to inform Wilmaa’s Customer Service (firstname.lastname@example.org) immediately. In the case of misuse of the user data, whether by the customer or by third parties, Wilmaa reserves the right to immediately block the account and to delete it if necessary, and to immediately terminate the contract with the customer.Wilmaa reserves the right to delete user accounts without notice if they have not been operated over a long period or if the web services are not being used.
The contract between Wilmaa and the customer with regard to web services comes into effect through the acceptance by Wilmaa of the order made by the customer or through the actual use of the web services by the customer. Wilmaa is not obliged to accept orders from customers. An order shall be deemed to have been accepted by Wilmaa if Wilmaa confirms the conclusion of the contract via email or SMS to the email address or telephone number of the customer specified in the order. Regardless of the confirmation by Wilmaa, a contract will be considered to exist between Wilmaa and the customer at the very latest if the customer makes use of the web services.
The current range of services and terms are described on the website. Unless otherwise agreed between the customer and Wilmaa, and subject to the following provisions, contracts with regard to web services shall be of indefinite duration. Providing no minimum contractual term has been agreed, the contract can be cancelled by Wilmaa or the customer at any time. After expiration of the free month and no credit card deposit, the subscription is considered cancelled.
If a minimum term for web services has been agreed between Wilmaa and the customer in the form of a subscription with monthly or annual charges, the deadline is automatically extended by the same minimum term and under the same type of subscription, unless the contract has been terminated before the expiry of the minimum term. In the event of termination after expiry of the relevant minimum term, the fee shall remain due for the relevant remaining term.If a customer has purchased from Wilma the right to use the web services during a specific period for a one-off payment, the contract will terminate at the end of this period without any further notice; i.e. the provision of web services by Wilmaa will end automatically at the end of this period. The customer must agree on a new contract with Wilmaa for the continued provision of the corresponding web services. The term of a contract with a minimum period or a specific duration for web services begins with the activation of the web services by Wilmaa in both cases.
If the customer cancels a contract without observance of the agreed minimum terms, all payments up to the end of the agreed minimum term will become due and will be invoiced to the customer. In this case, the web services will be provided by Wilmaa only up to the expiry of the normal payment deadline, and will then be terminated by Wilmaa without any further notice. If the customer pays within the payment deadline, Wilmaa will continue to provide the corresponding web services up to the end of the minimum term, after which the web services will then be terminated by Wilmaa without further notice. The customer's right to cancel the contract for good cause remains reserved.
In the following cases, cancellation by Wilmaa without observance of the agreed minimum terms will also result in the fees owed by the customer up to the end of the minimum term becoming due and will be invoiced to the customer: a) the customer has not met the agreed payment deadlines; b) there are doubts about the overall solvency of the customer; c) the customer has endangered the intangible and financial interests of Wilmaa; and/or d) in their use of the web services, the customer has seriously violated the obligations according to the contract or these Web Services Terms. In these cases of termination by Wilmaa – provided that the customer makes a payment within the payment deadline – , the web services will be provided only up to the end of the normal payment period will continue to be provided up to the end of the minimum term, after which they will be terminated by Wilmaa without further notice. The right of Wilmaa to cancel the contract for good cause remains reserved.
If in connection with an extraordinary cancellation for specific reasons, Wilmaa waives the termination of the web services and these are then used further by the customer beyond the end of the minimum term, the cancelled contract between Wilmaa and the customer will be considered to have been reinstated from the end of the minimum term. In this case, the customer shall remain liable for the agreed compensation. In the case of a contract cancellation without regard to the minimum term, the contract will end in each case only with the fulfilment of all obligations by the customer.Customers must cancel the subscription through their user account. A cancellation by Wilmaa will be carried out in writing or orally to the postal or email address or telephone number provided by the customer. If the contact details of the customer are no longer correct and Wilmaa has not been informed in writing about a change, a cancellation sent to the last-known postal or email address or telephone number will be deemed to be legally effective. In the case of several contracts between Wilmaa and the customer, the contract that is being cancelled must be specified in the cancellation.
Third-party services can be used by the customer in connection with the use of the web services. In these cases, the customer agrees on a contract directly with the third party. Wilmaa accepts no liability of any kind for the provision of these third-party services.
Use of the web services requires a functional internet access and a terminal that meets the technical requirements of the web services. Depending on the performance of the internet access and the terminal, the use and functionality of the web services may be restricted. Wilmaa does not guarantee perfect reception of its web services, particularly as this depends on the terminal used by the customer and the customer's internet connection.
In the provision of the web services or other services, Wilmaa will accept liability for damage caused by Wilmaa only through intentional or negligent breaches of the contract. Liability is otherwise excluded. Wilmaa also excludes any liability for incidental or consequential damage, loss of profits, and for damage caused by the supplied data or through the contractual or legally improper use of the web services by the customer or other third parties, and damage due to force majeure. Wilmaa accepts no liability for content published in the context of its web services. In particular, Wilmaa accepts no liability for the broadcast content or advertisements broadcast on Wilmaa as correct, truthful, legal and complete, or for the non-violation of any rights of third parties. Wilmaa also accepts no liability for products, content or applications shown or offered on the Wilmaa website by third parties.
Wilmaa undertakes to make use of the personal information of the customer, and in particular the registration data, carefully and in compliance with Swiss data protection law. Wilmaa is entitled, with the agreement of the customer, to collect, store and use personal information, including credit card data, either itself or through third parties, for the following purposes: a) for the provision and improvement of the web services, b) for the maintenance and development of customer relationships, c) for invoicing, d) for payment and collection purposes, and for credit rating and credit worthiness checks (including the creation of the appropriate files), e) for reviewing the conditions for use of the web services, f) to prevent unlawful use of the web services, g) for marketing purposes to determine usage behaviour with ‘tracking codes’, i) for the development of new, and application of, Wilmaa products, and j) for publication in directory files.
In particular, the customer agrees and gives his consent to the use of his/her data, individually or collectively, for marketing and advertising purposes. The consent of the customer also expressly relates to the right to transfer the data/information to third parties, and in particular also to other service providers for market research, for target group and customer profile analyses (including the creation of customer profiles). The distribution and use of the information is restricted to companies and organizations from the following sectors: publishers and media clubs, address and mail-order companies, telecommunication service providers, gambling and games of chance (e.g. lottery), travel and tourism, health care, financial services and insurance companies, pharmaceutical and cosmetic companies, non-profit associations, catering establishments, vehicle manufacturers and traders, vocational training and further training institutes, as well as third parties who are active for these companies and organisations, such as advertising agencies. These companies will be allowed to provide the customer with interesting information, offers, samples and advertising (by mail, email, SMS and telephone). The consent to use the data can be revoked at any time by sending an email to email@example.com or by mail to Wilmaa Ltd., Stauffacherstrasse 96, 8004 Zurich.
In connection with the provision of the web services, the personal information collected by Wilmaa may also be processed by third parties based in Switzerland or abroad. In particular, but not exclusively, personal information may be disclosed to and processed by third parties with regard to payment performance and for payment and collection purposes. The customer expressly agrees that their personal information may be made accessible to these third parties. Wilmaa shall ensure that these third parties are obliged to maintain the same data protection measures as Wilmaa itself, and that data security is maintained, especially when personal data are made available to third parties in countries without equivalent data protection levels. The customer is entitled to restrict or prohibit the use of their personal data for marketing purposes by means of a written declaration to Wilmaa, by email to firstname.lastname@example.org or by post to Wilmaa Ltd., Stauffacherstrasse 96, 8004 Zurich.
Furthermore, the customer agrees that Wilmaa can contact the customer by email for the provision of the web services.
The customer undertakes to pay the prices and fees due from the contract within the contractually agreed payment period insofar as the use of the web services is not free of charge. If no such payment deadline has been agreed, the customer is obliged to settle invoices within 30 days of their date of creation. Unless otherwise agreed, the fees agreed within the context of the web services become due monthly in advance.
If the customer does not comply with the payment obligations listed in para. 10.1 of these Web Services Terms, or does not comply within the payment deadline, they will be in default without any further reminders and must pay default interest at a rate of 8% p.a. Wilmaa may charge a reminder fee of CHF 20.00 per reminder and reserves the right to invoice any additional costs arising from late payment, such as any fees charged by third parties, together with any outstanding invoiced amounts and accrued interest. In the case of late payment, Wilmaa is entitled to stop the provision of the web services without further notice; i.e. to block connections and access until the outstanding payments (including collection costs and default interest) have been paid in full. Wilmaa may also invoice the customer a handling charge of at least CHF 50.00 for blocking and/or unblocking the services.
The customer is obliged to inform Wilmaa regarding any change in their current data (name, postal address, email address, etc.) and other relevant contractual information (limitation of action, etc.). The customer is responsible for the legal and contractual use of the web services and during their use must always observe Swiss legislation, and in particular the criminal law, the federal law on data protection, including implementation provisions and intangible property rights, and any applicable foreign law. The customer shall note in particular that for legal reasons, the web services may be received only for personal use and only within the sovereign territory of Switzerland and in the Principality of Liechtenstein. The customer is prohibited from circumventing the technical protective measures (IP blocking) taken to ensure the exclusive use of services in Switzerland and the Principality of Liechtenstein The customer is thereby not permitted to use the web services for commercial purposes or to receive them outside the sovereign territory of Switzerland and in the Principality of Liechtenstein. The customer is liable for any damage resulting from the use of the web services contrary to the law and/or provisions of the contract. In addition, in the case of use contrary to the contract, Wilmaa has the right to terminate the contract immediately without refund of any costs and/or to deny the customer further use of the web services.
The customer undertakes to keep all codes and passwords safe, and not to make them accessible to any unauthorised persons. The customer will be subject to unlimited liability in regard to Wilmaa and any other injured third parties for damages arising from violation of this obligation.
Certain content of the web services must be reserved for individuals who are of legal age. The customer undertakes to ensure that minors cannot access any unsuitable content or data. The customer is solely responsible for persons in their immediate surroundings or in their custody, and is required to take all necessary and appropriate measures to prevent access of minors to inappropriate content.
The customer must ensure that their terminal is protected in such a way that unauthorised third parties cannot access the terminal or system using technical attacks and thereby spread viruses, spyware or other malicious programs, even with the aid of the Wilmaa software, websites or mobile apps.
Applicable and binding prices for the customer arise from the contract between Wilmaa and the customer. If a price has not been fixed, it will be taken from the latest price list, which can be called up on the websites and mobile apps of Wilmaa.
Wilmaa reserves the right to change web services, prices and all other contractual agreements at any time, including these Web Services Terms. The customer will be informed of changes of this kind in an appropriate way. If the change leads to a significant additional burden or a substantial disadvantage for the customer, they may – subject to any other contractual agreements or provisions of these Web Services Terms – terminate the affected web services in writing from the end of the following month within two weeks from the announcement of the change without any financial consequences. All the services used in this connection up to the point at which the contract is terminated must be paid. If the customer does not send a written cancellation of the web services with the above deadline or if they continue to make use of the web services, they will be considered to have accepted the changes. The modified contractual provisions will automatically become a component part of the contract.
The customer undertakes not to make any changes to the Wilmaa software when using the web services, or to break through any technical barriers and encryptions by Wilmaa. The software developed by Wilmaa and the complete content of the websites and mobile apps is protected by copyright and belongs to either Wilmaa itself or to third parties, and may not be copied, distributed or otherwise altered without the permission of Wilmaa or the respective third party. This also applies to text, images and/or acoustic brand names or logos displayed on the websites and mobile apps of Wilmaa. Wilmaa grants the customer the non-transferable and non-exclusive right to use and exploit the intellectual property provided in the context of the web services for the duration of the contract. All the related rights to intellectual property or other immaterial goods that already exist or which arise from the fulfilment of the contract remain with and/or shall go completely to Wilmaa or the authorised third party (licensor). Insofar as claims are made against Wilmaa by third parties due to the violation of intellectual property rights by the customer, the customer must fully indemnify Wilmaa.
Transfers of the rights and obligations of the customer arising from this agreement require the written agreement of Wilmaa. Wilmaa is expressly permitted to transfer such rights and obligations to a legal successor or associated company.
Through the conclusion of this contract, the customer waives any right to offsetting against any claims they may have against Wilmaa.
If any provision of these Web Services Terms is or becomes void or invalid, the remainder of the Terms shall not be affected. Void or invalid provisions shall be replaced by provisions that are effective and which come as close as possible to the commercial purpose of the invalid or illegal provision. The same procedure is to be followed if a loophole becomes evident in the contract or a provision proves to be unworkable.
Changes or additions to this contract between Wilmaa and the customer, including these Web Service Terms, must be in writing, subject to any other agreement.
Swiss law is applicable to all contractual relationships between Wilmaa and the customer with regard to the web services from Wilmaa, to the exclusion of private international law (including the Vienna Sales Convention).
The exclusive place of jurisdiction for all disputes arising from this contract is Zurich, subject to any mandatory places of jurisdiction. Wilmaa is however entitled to prosecute the customer at his registered office or place of residence.
Version dated 13 October 2016