Terms and conditions of use of our website www.banana.ch
1. Scope of these terms and conditions
These terms and conditions (“T&C”) govern your use of the banana.ch website (operated by banana.ch SA, Lugano, Switzerland; “banana.ch” or “we”) and any services provided to you on this website, including software, content, updates, new releases and support (including support via phone at hotlines in our website) (with the use, collectively, the “Services”). It includes by reference (i) our Privacy Statement available on this website; (ii) Additional terms and conditions for the Services that you have selected; in particular if the Service you select is software, the purchase and use of such software shall also be governed by the relevant Software Licence Agreement; (iii) Any terms provided separately to you for the Services, including for example, web or email product or program terms, ordering, activation, pricing and payment terms, if applicable, for the Services.
By using our website you agree to be bound by these T&C. You should read these T&C carefully before using our website, our Services or placing any order within this website.
If you disagree with these terms and conditions or any part of these terms and conditions, you must not use this website.
To the extent that the Services include or interface with third parties’ services or websites, the respective terms of services and use provisions issued by such third parties shall apply and you undertake to comply with them.
In order to use certain functions of our website you may be requested to register as a customer with us. You can register by clicking the “LOGIN” and “Register” buttons. We will save your personal information to process your orders and for the purposes set forth in our Privacy Statement. You shall be responsible for keeping your registration data secure and shall be liable for any use made by third parties of our website and Service using such registration data. You undertake to contact us if you become aware of any unauthorized access to your account.
2. Purchase of Services
Any order placed by you shall be binding on banana.ch only upon acceptance and further confirmation by us, to be sent to you through an e-mail message or other type of messages. banana.ch may at its own discretion refuse any order.
If any Service that you have ordered is not available, banana.ch shall not be bound by any obligation to deliver; in this event we will inform you about non-availability of the ordered Service and reimburse the amount, if any, already received in payment of relevant price.
To the extent that banana.ch’s software is ordered by you, such software shall be licensed to you in accordance with the terms of the relevant Software Licence Agreement. Notwithstanding anything to the contrary in this T&C, in such case the relationship between you and banana.ch shall also be governed by the Software Licence Agreement, whose provisions shall prevail on the terms set forth herein in the event of conflict with these T&C.
In the event of purchase of Services, the relevant contract between banana.ch and you shall be understood as concluded only upon written confirmation of the order sent to you through an e-mail message or other type of message by banana.ch.
banana.ch shall use its best endeavours to procure that prices indicated on this website are correct and updated. Any shipment and delivery costs shall be charged on you at the time of shipping the ordered Services, according to the delivery fees in force at that time and as indicated in the applicable section of this website.
Payment shall be made by you at the time of placing the order either by credit card or as otherwise specified in the applicable section of this website. Payment shall be made in the currency indicated in the price as displayed in the applicable section of this website.
banana.ch is entitled, at its discretion, to withhold, suspend or cancel delivery or fulfilment of any of its obligations under any contract with you in case of material non fulfilment or breach by you of obligations arising out of previous or concurrent contract(s) with banana.ch.
Warranty and liability shall be governed by Clauses 7 and 8 below.
Users of our website (including you) may have the possibility to upload, post or store on or through our website materials (including hyperlinks texts). Such materials, to the extent they do not originate from us, shall be referred to in this T&C as “Content”. Banana.ch is not responsible for the Content or data you or third parties submit through the Services.
You are responsible for all Content uploaded, posted or stored through your use of the Services. You grant banana.ch a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services. You agree that banana.ch may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You are responsible for any your lost or unrecoverable Content.
By uploading or posting your Content you authorize banana.ch to display it and make it available to third parties and any such third parties and in particular any user of our website shall be deemed authorized by you to use such Content without any limitation.
You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any unlawful Content, including Illegal, fraudulent, defamatory, offensive or inappropriate Content, Content that breaches third parties’ or banana.ch’s intellectual property rights such as copyrights and trademarks, or is in breach of privacy legislation, Content that contains viruses, trojan horses, worms or other disruptive or harmful software or data.
The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public. Banana.ch does not support and is not responsible for the Content in these community forums. Users may post hypertext links to Content of third parties for which banana.ch is not responsible.
Banana.ch may, but has no obligation to, monitor your or third parties’ Content on the Services. Banana.ch, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this agreement.
Your use of third parties’ Content is at your own risk and banana.ch disclaims any warranty in connection thereto including that such Content is correct, up-to-date, safe, non-infringing and lawful.
4. Ancillary Materials
You acknowledge that through our website you may have the possibility to download adds-on or extension programs, including apps (such as so-called BananaApps), as well as additional materials, such as special forms, template or sheets incorporating text, data and formula (hereinafter collectively referred to as Ancillary Materials). Ancillary Materials may be designed and made available by Banana.ch, third parties or communities to operate with banana.ch’s own or other software. Banana.ch disclaims any warranty in relation to the downloading, installing and using of such Ancillary Materials and their use will occur at your own risks.
To the extent that the Ancillary Materials are third parties Content, Clause 3 fully applies notwithstanding they may be available through our software, on special sections of our website (including sections that can be accessed only upon registration) or on third parties websites or online shops that are connected to our websites through hyperlinks.
To the extent that Ancillary Materials are downloaded from third parties websites or online stores connected to our website, any third parties terms of services for such websites or online stores shall be applicable in addition to this T&C and you undertake to comply with them.
You acknowledge that Ancillary Materials, in spite of their indication relating to different jurisdictions, may not be entirely compliant with local legislation, requirements or standards and/or up-to-date and you will therefore use them at your own risk and banana.ch disclaims any warranty in connection with the use of Ancillary Materials in any specific jurisdiction. Before relying on them you should verify them with your local professional advisors to ensure compliance with local legislation, requirements and standards.
5. Support Services
To the extent that banana.ch provides you support as Service, such support is exclusively of technical nature. Banana.ch is not in the business of providing legal, financial, accounting, tax, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
In addition in the event support Service is free of charge, it is provided by banana.ch “as is” and any and all warranties, whether implied or express, are disclaimed to the maximum extent allowed under the applicable law. Banana.ch is not responsible for the Content or data you submit through the Services in connection with support Services.
6. Communication networks connection and security
Use of these Services may be available through Internet access, including through mobile devices. You agree that you are solely responsible for securing internet connection at your expenses. Banana.ch disclaims any warranty as to the continuity of internet connection and any corruption or interception of information during the transfer or download.
If when using or receiving our Services, including support Services, you send us any data or information relating to you, your business, accounting processes or financial or other information, including sensitive personal data, we will use best endeavours to avoid that unauthorized third parties will access them. You acknowledge that the transfer of such information to us or from us to you will take place through communication networks that may not be secure and we disclaims any warranty in relation to interception, unauthorized access or corruption of such information during its communication or while stored with us.
Without prejudice for (and without limiting in any way) any warranty disclaimer contained in these T&C, banana.ch warrants that the Services will substantially conform with the specification set out in the relevant section of this website or of the materials delivered with the Service.
In the event of such non conformity, subject to any other additional disclaimer contained in these T&C, and unless otherwise provided for under mandatory applicable law, you are entitled to a warranty covering the defects for which warranty is given hereunder of the Services purchased for 90 (ninety) days from delivery, provided that any such defect must be reported to banana.ch within 10 (ten) days from relevant discovery. Any claim beyond the mentioned timeframes shall be ineffective and deemed forfeited.
Subject to the conditions set forth herein, in the case of breach of warranty you are entitled to ask for and receive a refund for the amount paid for the defective Service. If banana.ch is able to confirm that such Service does not conform with the warranted standard, banana.ch shall send to you an e-mail message confirming the acceptance of the return of the defective Service and start the refund procedure in order to reimburse you for the price paid for the defective item or service in the following thirty (30) days. This shall be the only remedy available to you and any other statutory remedy is excluded to the maximum extent allowed under applicable law.
Notwithstanding the preceding provisions, in the event of Services provided for free, the Services are provided “as is” and any and all warranties, whether implied or express, are disclaimed to the maximum extent allowed under the applicable law.
To the extent permitted by the applicable law, banana.ch disclaims all other warranties with respect to the Services provided by it, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.
8. Limitation of liability
Any liability (whether in contract, tort or other legal basis) of banana.ch for the breach of any obligation hereunder (including breach of warranty) or in connection with the delivery to, or use by, you of any Service (including use of this website) provided by banana.ch is excluded, unless banana.ch has acted gross negligently or in wilful intent.
Notwithstanding the generality of the foregoing and to the maximum extent allowed under the applicable law, banana.ch expressly excludes liability for consequential loss, damage of, or corruption to, other software or data, or for loss of profit, business, revenue, goodwill or anticipated savings.
9. Right of withdrawal
Unless othervise specified, you have the right to withdraw from the purchase of any goods or Services purchased on our website within 14 days without giving any reason, provided however that the right of withdrawal will not be available in the case of (i) Services that have already been provided (even if only partially) before the exercise of the right of withdrawal (such as support); (ii) of software that was downloaded and can be installed without using additional security codes or if the codes have been already provided, (iii) of software delivered on a sealed digital support (e.g. DVD), if the seal has been opened or (iv) you being a resellers.
The withdrawal period will expire after 14 days from the day on which you receive physical possession of the goods ordered.
To exercise the right of withdrawal, you must inform Banana.ch of your decision to withdraw from the purchase by an unequivocal statement (e.g. a letter sent by post or e-mail). To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
If you withdraw from the purchase contract, we shall reimburse to you all payments received from you, including the costs of delivery, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back.
You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.
10. Suspension/Discontinuation of Services and Termination
Banana.ch may immediately, in its sole discretion and without notice, at any time suspend or discontinue any Service or make any Service available only upon payment of a charge.
We may further terminate this agreement forthwith without notice if you fail to comply with these T&C. Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this agreement shall not affect our rights to any payments due to us. We may terminate a free account at any time.
Severability: In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law and the invalid, unlawful or unenforceable provision shall be replaced by a valid, lawful and enforceable provision that, from its commercial purpose, it comes closed to the invalid, unlawful or unenforceable provision.
Amendments: We reserve the right to change these T&C at any time, and the changes will be effective when posted on through the Services, on our website or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.
Waiver: Failure or neglect by banana.ch to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of banana.ch's rights hereunder nor in any way affect the validity of the whole or any part of these T&C nor prejudice our rights to take subsequent action.
Headings: The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of these T&C.
12. Governing law and Jurisdiction
These T&C and any contract entered into hereunder shall be subject to and governed by Swiss Law.
Subject to mandatory legal provisions providing otherwise, the Courts of Lugano, Switzerland, shall have exclusive jurisdiction on any dispute, controversy or claim arising out of or in relation to these T&C and any contract entered into hereunder, including the validity, invalidity, breach or termination thereof. Notwithstanding the preceding sentence, banana.ch shall be entitled to bring action against Customer in the courts at the latter’s domicile.
Last updated: October 21, 2015