1. Scope
These General Terms and Conditions (“GTCs”) govern the contractual relationship between Flatfox AG, Speichergasse 31, 3011 Berne (“Flatfox”) and registered visitors (“users”) of the real estate platform (“real estate platform”) that can be accessed at flatfox.ch and via an app provided by Flatfox. These GTCs apply to any and all use of the real estate platform and to any and all services offered by Flatfox in connection with the real estate platform, subject to the terms of any separate agreement.
Flatfox does not rent or manage any real estate and does not itself offer any real estate on the real estate platform. Real estate offered for rent or sale on the real estate platform is offered exclusively by third parties. Flatfox is not a party to any contracts in connection with the properties offered on the real estate platform, in particular rental or purchase contracts. It is not involved in the conclusion of such a contract and does not represent any of the parties to such a contract.
2. Inception and termination of the contractual relationship between Flatfox and the user
The contractual relationship between Flatfox and the user is established through registration of the user, i.e. the user creates a user account. The contractual relationship between Flatfox and the user can be terminated at any time with immediate effect and without giving any reasons by deleting the user account.
3. Services provided by Flatfox
3.1. General
The real estate platform can only be used by persons whose place of residence or registered office is in Switzerland and who are ordinarily resident in Switzerland. By registering, users confirm that their place of residence or registered office is in Switzerland and that they are ordinarily resident in Switzerland.
Houses, apartments, rooms, parking spaces, etc. in Switzerland (“properties”) can be offered for rent or for sale on the real estate platform, e.g. by owners, property managers, etc. (“advertisers”). Visitors to the real estate platform can search for these offerings and users can respond to them (“interested parties”). Additionally, Flatfox provides certain of its own content and information on the real estate platform whose subject matter and scope may change over time.
Users have no contractual rights to use the real estate platform. Flatfox is entitled at any time, for any reason and without prior notice, to make changes to the real estate platform at its own discretion, in particular to expand, modify, interrupt, restrict or completely or partially discontinue the scope of services, functions, design or content of the real estate platform. Users have no right to require the continuation or maintenance of the scope of services, functions, design or content of the real estate platform.
3.2. Advertisers
Users who are advertisers on the real estate platform can offer real estate for rent or for sale. Flatfox is entitled to review listings before they are published and to decline to publish them without giving reasons. Additionally, Flatfox is entitled at any time, without prior notice and without giving reasons, to remove listings that have already been published, in particular as provided for in section 4.2. of these GTCs.
The real estate platform offers an overview on the user account of the responses received after publication of the advertisement, enables communication via Messenger between the advertiser and interested parties who have responded to the advertisement and facilitates the digital management of contact requests and viewings. After a contract has been concluded for the property being offered, the advertisement is removed from the real estate platform, but can be archived and reactivated if desired.
3.3. Interested parties
Users who are interested parties can respond to advertisements for properties that are offered for rent or sale by advertisers on the real estate platform. To do so, users can create and save an electronic response file on their user account. Flatfox is entitled to delete response files, especially if the user is inactive. After responding to an advertisement, Flatfox enables interaction via Messenger between the advertiser and the interested party.
3.4. Additional services
3.4.1. Additional services subject to charge provided by Flatfox and third-party providers
Flatfox can provide users with additional services subject to charge that are governed by separate contracts. These GTCs shall apply unless otherwise agreed in any such separate contract.
Flatfox can enable users to obtain services from third-party providers against payment on the real estate platform (e.g. ordering extracts from the debt collection register, insurance policies, removal and storage services). Any contractual relationship relating to such additional services for which a charge is made arises exclusively between the user and the third-party provider.
3.4.2. Messages
Users consent to Flatfox sending them personalised messages electronically (e.g. by e-mail or push messages) with additional offerings that may be of interest to them. These messages can be cancelled at any time using the link in the message.
3.4.3. Rental portal
Flatfox may offer a portal on its real estate platform that enables users such as landlords and property managers, on the one hand, and tenants, on the other, to communicate and exchange documents relating to a tenancy (“rental portal”) and landlords and property managers can send messages to their tenants via such portal. The recipients agree that notifications delivered via the rental portal are considered to have been effectively received at the time they are accessible.
Additionally, landlords and property managers can register tenants of their properties and write to them via the tenant portal, e.g. by e-mail, even if the tenants in question are not themselves users; equally, tenants can also complete forms (e.g. to file damage reports) and send them to landlords even if they are not users.
To the extent that Flatfox provides the user with the function of sending messages to persons who are not themselves users of the platform, Flatfox acts as the user’s order processor for the fulfilment of this function. The corresponding provisions of the framework agreement apply between Flatfox and the corresponding user.
4. Ownership of rights and right of use
4.1. Ownership of rights
All rights to the real estate platform as well as to the information contained or available on it, in particular rights to software, trade dress, trademarks, company names and other distinctive signs, and to all materials, including but not limited to text, image and video materials, that are related to the real estate platform are owned exclusively by Flatfox and/or Flatfox’s licensors. No rights to the real estate platform or the information contained on it are transferred to users of and visitors to the real estate platform.
This does not apply to any rights to advertisements and response files or to information contained or available in them. Users grant Flatfox an unremunerated, irrevocable, transferable right, which may be sublicensed to third parties, to use such rights and information in connection with the relevant advertisement or response file for the intended purpose. In particular, Flatfox is entitled to publish advertisements on the real estate platform or elsewhere and to integrate them into its own services or third-party services, to use and analyse them for its own purposes, to make them accessible to third parties and to forward them, in particular also to disseminate and publish advertisements on other channels (e.g. social media), as well as to store response files and to send them to the advertiser.
4.2. User’s right of use
Following registration, Flatfox grants the user an unremunerated, non-exclusive right that is limited to the period of the contractual relationship between the user and Flatfox, non-transferable to third parties and non-sublicensable, to use the real estate platform and the information and functions contained or available on it (e.g. rental portal) in accordance with their intended purpose, and the user undertakes to use the real estate platform only in compliance with this right of use.
For the advertiser, use of the real estate platform in accordance with its intended purpose consists of offering real estate for rent or sale, and for the interested party in responding to such offerings. For Flatfox customers, use of the rental portal in accordance with its intended purpose consists of providing accurate information about their tenants and not sending any content to these tenants that violates applicable law (in particular data protection law) or third-party rights (in particular copyright and personal rights), and for tenants, it consists of accurately completing the online forms provided.
Unless otherwise agreed with Flatfox, any and all additional or more extensive use of the real estate platform or the information and functions contained or available on it is not permitted. In particular, any re-use or allowing access to proprietary content provided by Flatfox is not permitted. Equally, any re-use and exploitation of the advertisements published on the real estate platform is restricted to the advertiser in question and Flatfox; the advertiser authorises Flatfox to take action against any exploitation in contravention of this provision of the advertisements that the advertiser has posted on Flatfox.
Flatfox is entitled to suspend or delete user accounts or remove advertisements at any time, without prior warning and without giving reasons, in particular if there is suspicion that a user is using the real estate platform illegally or immorally in breach of these GTCs, or that their user account is being used without authorisation.
5. Further obligations of users
Users are obliged to ensure that the access data to their user account is not made available to unauthorised persons.
Advertisers are required to provide correct and complete information in advertisements and to update their advertisements. In particular, advertisers are required to offer only properties that are actually available for rent or sale, that they are entitled to offer and, with the exception of advertisements to find a new tenant, that they can dispose of as owner, contractor or agent. In addition, advertisers are obliged to inform Flatfox if a contract is concluded for a property offered on the real estate platform, providing details of the other party to the contract, in cases where the contract is concluded with an interested party that has responded to the advertisement via the real estate platform.
Users undertake to comply with the applicable data protection provisions.
Users are responsible for protecting their own data, in particular the data they have stored in their response file on the real estate platform and the advertisements they have published on the real estate platform.
Users are obliged to notify Flatfox immediately of any violations of these GTCs. In particular, users are required to report to Flatfox any unauthorised use of their user account as well as fraudulent advertisements and responses. The same applies to suspected abuse of the rental portal by an unauthorised third party.
Users are required to ensure at their own expense that they meet the technical conditions for using the real estate platform and that they use state-of-the-art technology when using the real estate platform, in particular the latest version of the relevant web browser. If they use older technologies or technologies that are not in general use, they may not be able to use the real estate platform or only be able to use it to a limited extent. Furthermore, users are responsible for taking the necessary precautions to protect their own systems at their own expense.
6. Warranty disclaimer, liability and indemnification
6.1 Warranty disclaimer
The real estate platform is made available for use in the condition in which it is available. Flatfox does not provide any representations, guarantees or warranties in connection with the real estate platform and its use, in particular with respect to the availability, service quality, correctness, completeness and timeliness of the real estate platform or the information contained or available on it, specifically also with regard to the advertisements published on the real estate platform and the response files submitted to the advertiser by interested parties. Accordingly, use of the real estate platform is at the user’s sole risk and responsibility.
Likewise, Flatfox does not provide any representations, guarantees or warranties with regard to individual functions of the real estate platform, e.g. the rental portal. Users also make use of the rental portal at their own risk. Especially if a message sent via the rental portal is intended to be sent to other users or third parties or could have legal implications, users themselves bear the dispatch risk and the risk of proof of dispatch.
Flatfox is not obliged to check the information sent via the real estate platform including the rental portal, in particular advertisements, response files and the content of communications sent by users. Users are obliged to ensure the accuracy and lawfulness of the information they provide and themselves to check the content of communications they receive.
6.2 Liability and indemnification
Flatfox and its vicarious agents are released from any and all liability for losses in connection with use of the real estate platform or its unavailability for use. The exclusion of liability applies in particular to losses resulting from unauthorised access to a user account, unlawful or unethical conduct by users or third parties, especially fraudulent advertisements or responses, or the loss or deletion of data (e.g. information stored in the response file, advertisements). The exclusion of liability does not apply to losses caused by intent or gross negligence by Flatfox, to bodily injury, to product liability claims and other claims that cannot be excluded by law.
Users are obliged to indemnify Flatfox in full in the event that action is taken against Flatfox by third parties for losses attributable to actions of a user in connection with the real estate platform, irrespective of such user’s culpability.
7. Amendments to the GTCs
Flatfox is entitled to amend these GTCs at any time. The current version of the GTCs is available at www.flatfox.ch. Users will be notified of any amendments in appropriate form. Users who do not consent to the amendments must terminate the contractual relationship with Flatfox within two weeks of notification of the amendments and must delete their user account. Such amendments are considered to be accepted unless the account is deleted within the stated period or if the real estate platform continues to be used following notification of the amendments.
8. Applicable law and jurisdiction
Berne, Switzerland, is the sole place of jurisdiction for any and all disputes arising out of or in connection with the contractual relationship between Flatfox and the user. Flatfox reserves the right to initiate legal proceedings against the user before another court in cases involving recourse and warranty claims. The contractual relationship between Flatfox and the user is governed by Swiss law.
Berne, 17 August 2023