Software as a Service – General Terms and Conditions
These general terms and conditions (GTC) form together with the terms of any subscription plan (Subscription Plan) or any signed order form (Order Form) referencing these GTC, and any schedule thereto (Schedule) a legal agreement (Agreement) between NetGuardians SA (CHE-113.716.692), Avenue des Sciences 13 1400 Yverdon-les-Bains, Switzerland (Provider) and any customer of Provider designated in an Order Form or Subscription Plan (Customer, and together with Provider, the Parties).
1. Scope and Acceptance
1.1 In General
These GTC govern Customer’s rights and obligations with respect to the provision by Provider and the access and use by Customer of the Solutions specified in the Subscription Plan subscribed by Customer or the Order Form executed by Customer (the Solutions) and the services made available through or in connection with them (together with the provision of the Solutions, the Services), with the functionalities, modules and limitations specified in the Subscription Plan or Order Form.
1.2 Delivery Mode
The Solutions shall only be made available as online platform (Online Solution).
1.3 No Further Obligation
Provider shall have no obligation to provide any service or software which are not expressly specified in these GTC or in the Subscription Plan or Order Form.
1.4 Acceptance
By subscribing for, or logging in for the use of the Solutions and/or signing an Order Form, Customer expressly agrees to be bound by the terms hereof.
Any subscription for the use of the Services by any of Customer’s employees, agents or representatives, on behalf of Customer, is deemed as acceptance of the terms of these GTC by Customer. If you are subscribing for the use of the Services or using them on behalf of a legal entity, you represent and warrant that you are duly authorized to do so.
2. Right to Access and Use
2.1. In General
Subject to Customer’s compliance with all terms and conditions of these GTC, Provider grants to Customer, during the Term, a revocable, non-exclusive and non-transferable right to access and use the Solutions and the content displayed on, or generated through, the Solutions or on behalf of Provider (the Content and together with the Solutions, the Licensed Products), strictly in accordance with these GTC and the documentation provided by Provider, on its own behalf and for its own internal business purposes only.
2.2. Authorized Users
Always subject to the limits of the Subscription Plan or Order Form, Customer shall use the Licensed Products through its own employees, agents and/or duly authorized representatives having a need to access the Licensed Productsonly(the Authorized Users), and shall take appropriate steps to ensure compliance with the Agreement by such Authorized Users. Customer is expressly prohibited from using the Licensed Products on behalf or for the benefit of any third-parties, or to sublicense the Licensed Products to any third party, without Provider’s express prior written consent.
2.3 Metrics
If the use of the Licensed Products is subject to specific restrictions (e.g. limited number of concurrent users or devices, named users, or other limitations), as specified in the Subscription Plan or Order Form or the documentation provided by Provider, Customer must use the Licensed Products strictly in accordance with such restrictions.
2.4. Limited Licenses.
If so specified in the applicable Subscription Plan or Order Form, and always subject to Customer’s compliance with all other terms and conditions of these GTC, Provider may make the Licensed Products available under limited licences, subject to the following additional conditions and limitations:
a) Free Access.
Provider may offer a free Subscription Plan for its Solutions, but which have limited features, functionality, and volume tiers for the Licensed Products (Free Plans). Provider may modify the Free Plans at any time in its sole discretion or even discontinue them entirely without prior notice to Customer.
b) Trial License:
if so specified in the Subscription Plan or Order Form, the Solutions may be made available for free for a limited period of time exclusively for the purpose of the Solutions’ evaluation in view of the acquisition of a full licence, to the exclusion of any commercial use (the Trial License). Upon expiration of the Trial License, Customer shall be given an opportunity to subscribe a commercial paying license.
c) Beta Services.
From time to time, Provider may make Beta Services available to Customer at no additional charge. Beta Services are new or different Services, or functionality thereof, made available to customers for testing and evaluation, such as pilot, limited release, early access, etc. and are clearly designated as beta or by a similar description. Customer may choose to use such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Customer. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, which are hereby disclaimed notwithstanding anything to the contrary in the Agreement. For the avoidance of doubt, all restrictions and Customer’s obligations in the Agreement shall also apply to Beta Services. Provider may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
2.5 No Delivery.
The Solutions are provided as a SaaS offering (Software as a Service); therefore, Provider shall only grant to Customer a right to access and use the Solutions and shall not deliver any copy of the Solutions.
2.6 Developments.
If, in connection with the Services, Provider customises, develops or makes available additional features for, respectively provides patches, bug-fixes, updates or upgrades to the Solutions and/or Content (Developments), such Developments shall automatically become part of the Licensed Products, unless otherwise stipulated by Provider.
2.7. Changes.
Customer acknowledges that Provider may implement modifications to the Solutions or Content which may include modifications to the layout or functionalities of the Solutions as Provider determines, and Provider will have the unfettered right to remove any Content from the Solutions or change their functionalities at its sole discretion.
3. Credentials
3.1. User Credentials.
If Provider issues user credentials on a named user basis, such user credentials shall be used exclusively by the individual Authorized Users for which they have been issued, on behalf and for the benefit of Customer. If user credentials are issued to Customer without specifying the individual users, such user credentials may be used by any Authorized User, strictly on behalf and for the benefit of Customer.
3.2. Confidentiality.
Customer shall be fully responsible for the confidentiality of any user credentials issued by Provider and immediately inform Provider of any loss or unauthorized disclosure of such user credentials, which shall then be deactivated and replaced by Provider. Provider may charge an appropriate fee for the replacement of any user credentials. Customer shall further immediately notify Provider if any named user for whom Provider has issued user credentials quits Customer’s organization.
4. Availability; Maintenance and Other Services
4.1 Availability of Licensed Products.
Provider shall use reasonable endeavours to maintain the availability of the Licensed Products, but does not guarantee their full availability.
4.2 Maintenance Services.
As part of the providing of the Licensed Products, Provider shall continuously seek to identify and attempt to resolve problems which may negatively affect the proper functioning and availability of the Licensed Products (the Maintenance Services). Such Maintenance Services comprises repairs (rectification of faults and errors to restore functionality) and servicing (maintenance to maintain functionality). Further development, adaptation or improvement of the Licensed Products (evolutive maintenance), support services as well as additional Services (as described in Section 4), do not form part of the Maintenance Services.
4.3. Maintenance Windows.
For Online Solutions, as a rule, Maintenance Services are deployed regularly during maintenance windows (i.e. on weekdays between 6pm and 9am CET or during the weekend) during which the Licensed Products may be fully or partly unavailable. Provider shall inform reasonably in advance Customer if Maintenance Services have to be performed outside of such timeframe and/or for a duration leading to foreseeable full or partial unavailability of the Licensed Products during more than 1 hour.
4.4 Additional Services.
Provider may agree to provide technical support to Customer for the Licensed Products (Support Services), if and as described in the Subscription Plan or Order Form. The Support Services will be available between 9 AM and 5 PM CET during business days. Provider may also agree to provide additional Services for the Licensed Products (such as customization, development and/or consulting services), subject to the Parties entering into an ad hoc agreement (which shall, unless specified otherwise, be governed by these GTC) pertaining to such Services and payment by Customer of the applicable fees.
4.5 Diligence.
Provider shall provide the Services to the best of its ability using all reasonable skill and care in accordance with standard professional practice. Provider shall be bound by an obligation of means (and not to deliver a specific result).
4.6. Planning.
Provider will endeavour to supply the Services within the deadlines set out in the Order Form. However, if the agreed deadlines are not expressly stipulated as binding in the Order Form, they will only be indicative in nature.
5. Customer’s Obligations
5.1. Payment of Fees.
Except for Free Plans pursuant to Section 2.4.a) and the free Trial License pursuant to Section 2.4 b), Customer shall pay the Fees as indicated in the Subscription Plan or Order Form or by any other appropriate means (e.g. pricing schedules provided to Customer by Provider) (the Fees), in accordance with the payment terms set forth in Section 9.
5.2. Proper Use.
Customer shall – and shall cause its Authorized Users to – at all times comply with all laws and regulations applicable to the use of the Services, as well as the conditions and limitation of any license or other right granted, as set out in the Agreement or as otherwise specified in writing by Provider. In particular, Customer or the Authorized Users shall not, without the prior consent of Provider, and either during or after the Term: (i) use the Services for any illegal purposes (ii) republish or redistribute any Content or material from the Services; (iii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or of their infrastructure; (iv) make any alteration to the Services, or insert any malicious software into the Solutions or their infrastructure; (v) access the Solutions’ code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solutions or their infrastructure (vi) access or use any part of the Services for the purpose of building a competitive product or service or copying their features or user interface; (vii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make any part of the Services or of their infrastructure available to any third party other than its Authorized Users.
5.3. Customer’s infrastructure.
Customer shall procure and maintain at its costs an infrastructure that complies with the minimum requirements for the use the Solutions, as specified from time to time by Provider in the Solutions’ documentation.
5.4. Licenses and Authorization.
Customer shall maintain all permits and licenses that are required for the use of the Services.
5.5. Verifications.
The Licensed Products may contain tools allowing Provider to verify Customer’s compliance with these GTC and Provider shall have the right to temporarily or permanently suspend the access to the Services and Solutions and/or deactivate any user credentials issued for the use thereof in case of none compliance with these GTC.
5.6. Audits.
Additionally, Provider shall have the right to audit Customer’s compliance with the Agreement once a year during usual office hours. Customer undertakes to provide all necessary assistance and information for the purposes of such audit, at no cost. If an audit shows that Customer has exceeded the metrics or other limitations specified in the Subscription Plan or Order Form, it shall pay the difference between the Fees actually paid (if any) and the Fees it would have had to pay for its actual use and/or access of the Licensed Products, plus 5% interest, from the first time it exceeded its rights. In this case, Customer shall further pay the costs incurred for the audit. The right of termination pursuant to Section 18.4 shall apply additionally.
5.7. Customer Default.
In case of default by Customer to comply with its obligations set forth in these GTC or in the Subscription Plan and the Order Form, Provider shall be excused from the performance of its obligations under the Agreement and assume no liability in relation therewith (without prejudice to Provider’s other rights under this Agreement).
6. Customer Materials
6.1. Customer Materials.
Customer and its Authorized Users may provide documents, information and other data through their use of the Service (Customer Materials).
6.2. Ownership.
As between the Parties, Customer Materials is and shall remain the sole and exclusive property of Customer and nothing herein shall be construed or interpreted as a transfer of ownership in any Customer Materials to Provider.
6.3. Use of Customer Material
Customer grants to Provider a non-exclusive worldwide, royalty-free, irrevocable, license to use the Customer Materials for the sole and exclusive purpose of providing or improving the Services, including a license to collect, process, store, use, generate, anonymize, modify, create derivate work of the Customer Materials to third parties, as well as to train algorithms using Customer Materials, only to the extent necessary to provide or improve the Services.
6.4. Warranty.
Customer warrants that (i) it has valid grounds and, if required, it has obtained all authorizations and consents for the processing of any Customer Materials within the frame of these GTC and (ii) Customer Materials do not infringe on any law or regulation, these GTC, or any third party rights. Provider may remove any Customer Materials which it considers infringes this warranty.
6.5. Deletion and Return of Customer Materials.
Upon termination of the Agreement, Provider shall, within reasonable time following a written request by Customer, provide Customer with a final extract of the Customer Materials and permanently delete or anonymize any copies of such Customer Materials still under its control. In any case, Provider shall be allowed to permanently delete or anonymize Customer Materials 30 days after termination or non-renewal of the Agreement.
7. Provider Intellectual Property
7.1. In General.
As between Provider and Customer, Provider shall be and remain the sole owner of all rights, title and interest, registered or not, whether arising from Swiss or any other national or international legislation, in copyright, databases, trademark, domain names, designs and patents of invention, know-how, confidentiality and/or business secrets, and all other intellectual property or similar proprietary rights of whatever nature (Intellectual Property Rights) in and to the Solutions, any Development, the Content, and other Services provided in connection therewith, except only for Customer Materials. Nothing in these GTC shall operate any assignment or transfer of any Intellectual Property Rights to Customer.
7.2. Usage Data.
Provider shall own all rights and titles in, and may freely use for any purpose (including without limitation for data mining, benchmarking and analytics purposes, or for developing and marketing new services), any data or information collected, processed, developed, produced or obtained from cookies or other tracking and analytics technology present on the Solutions (including any tracking data related to user traffic), or relating to Customer’s and Authorized Users’ access to and use of the Solutions, including inter alia the number and duration of visits to the Contents and (Usage Data).
7.3. Notice of Infringemen
Should Customer become aware of any infringement or imminent risk of any infringement of any Intellectual Property Rights pertaining to the Services, Customer shall immediately inform Provider and provide all useful information on such infringement or risk of infringement. Provider shall have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. Customer shall, at its own costs, provide Provider with all reasonable assistance required by Provider to protect its Intellectual Property Rights, in accordance with its instructions.
7.4. Intellectual Property Rights Infringement.
In the event that Provider is enjoined from providing the Services due to any third-party Intellectual Property Rights claims and such injunction is not dissolved within 30 days, or in the event that Customer is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any third-party Intellectual Property Rights due to the use of the Services as permitted hereunder, then Provider shall, at its expense: (a) obtain for Customer the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such Intellectual Property Rights and are free to be used by Customer; or, (c) in the event that Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Provider may terminate the Agreement, with immediate effect, reimbursing Customer any prepaid Fees for the period during which the latter is thus unable to use the Services, as its sole and exclusive remedy.
7.5. Relief.
Customer expressly acknowledges that any infringement of Provider’s Intellectual Property Rights will cause irreparable harm to Provider, for which monetary damages alone would be inadequate, and that Provider may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.
8. Third-Party Content
8.1. In General
The Services may contain Content and/or software components incorporated into the Services or provided therewith, developed, distributed and/or licensed by third parties (Third-Party Content). Such Third-Party Content shall be licensed, and Customer shall use such Third-Party Content under, and strictly in accordance with, the applicable terms and conditions by the respective third-party. Provider shall use its best efforts to identify any Third-Party Content in the documentation of the Services.
8.2. OSS.
Nothing in these GTC shall restrict, limit or otherwise affect any rights or obligations that Customer may have, or conditions to which Customer may be subject, under any applicable open source licenses to any open source software which may be incorporated in and/or provided together with the Services.
9. Financial Terms
9.1. Payment.
Subscription Fees shall be due and payable in advance of their respective terms, as indicated the Subscription Plan or Order Form and non-refundable in case of termination. Additional Fees as incurred pursuant to the Provider’s provision of Services, or through Customer’s use of the Services are invoiced in arrears, on a quarterly basis, and shall be paid within 10 days of the invoice.
9.2. Taxes.
Fees and rates indicated by Provider shall be exclusive of all taxes (in particular, VAT) if and as applicable.
9.3. Disbursement.
Payments shall be made by credit card or wire transfer to Provider’s bank account, as indicated from time to time to Customer.
9.4. Suspension of Services.
The continued use of the Services by Customer is subject to the timely payment of all the Fees. Provider may temporarily stop providing the Services or suspend any right to access or use any Solutions and/or any user credentials issued to Customer, if applicable, if Customer is in default for payment of any Fees due.
9.5. No Offset.
Customer may not offset amounts owed by Provider to Customer against any Fees due to Provider, subject to Provider’s express prior written approval.
9.6. Changes.
Subject to pricing terms agreed in the Order Form, Provider may modify the pricing of its services at any time, e.g. by adding new services for additional Fees, or amending current plans, at any time and in its sole discretion, provided that if the change concern Customer’s current Subscription Plan, Provider will notify Customer in advance and the increase in Fees shall only become effective upon the forthcoming term of the Subscription Plan.
10. Data Protection
10.1. Provider Privacy notice.
Provider has issued a privacy notice (Privacy Notice), which describes how personal data is collected through the Solutions and for what purposes. That privacy notice, as amended from time to time, forms an integral part of these GTC.
10.2. In General.
If the provision of the Services implies the processing by Provider of (i) any personal data forwarded by Customer or of Customer’s Authorized Users (Customer Personal Data), in particular as part of Customer Materials, or (ii) personal data relating to Usage Data (Usage Personal Data), Provider and Customer shall fully comply with their respective obligations under applicable data protection laws and regulations.
10.3. Roles of the Parties.
In such cases, Provider shall process Customer Personal Data (i) as data processor, exclusively for the purpose agreed in these GTC and only to the extent necessary to fulfil the obligations hereunder, in accordance with Customer’s instructions, which shall act as data controller; and (ii) for Provider’s legitimate business operations incident to provision of the Services (as those are described in Provider’s privacy policy). Provider shall process Usage Personal Data as sole data controller thereof.
10.4. Provider’ Obligations.
Provider undertakes to comply with Swiss data protection legislation.
10.5. Customer’s Obligations.
Customer shall ensure, with respect to any Customer Personal Data processed by Provider within the frame of the Services, if any, that such Customer Personal Data has been collected and transferred to Provider in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, Customer shall:
a) have, and maintain at all times, valid grounds for the processing of such personal data, including obtaining valid consent from the data subjects for the processing of their personal data, if such consent is required under the applicable data protection legislation; and
b) provide adequate information to data subjects about the collection and processing of their personal data;
10.6. Responsibility.
Customer shall bear sole responsibility for the processing of Customer Personal Data, if any, within the frame of the Services. Customer acknowledges and accepts that Provider shall deem any processing of any Customer Personal Data within the frame of the Services, as permitted under the Agreement, as well as any instructions by Customer with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.
10.7. Transfer.
By accepting these GTC, Customer expressly acknowledges and agrees that Customer Personal Data or Usage Personal Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Customer’s jurisdiction.
10.8. Compliance Actions.
Provider may forward to Customer any request, investigation or other action by any supervisory authority and/or any third-parties (including data subjects), directed at Provider with respect to the processing of any Customer Personal Data, and Customer shall be responsible for addressing them in accordance with the law. If Provider is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations, and/or to provide assistance to Customer, Customer shall fully indemnify Provider for its effort and costs, including reasonable attorney’s fees, incurred in such context. Requests, investigations, or actions relating to Usage Personal Data shall be addressed by Provider only.
11. Confidentiality
11.1. Definition.
Confidential Information shall mean any information disclosed by either Party (as the context requires, the Disclosing Party) to the other (as the context requires, the Receiving Party), either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “confidential”, “proprietary”, or some similar designation or can reasonably be considered of confidential nature. Confidential Information includes the content of the Agreement, (but not the fact that the Parties are collaborating), all information about the Disclosing Party’s business and operations, and more generally all information relating to or owned or controlled by the Disclosing Party of which the Receiving Party shall acquire knowledge in the performance of their agreement. The Solutions, the Content, the Services, as well as any Usage Data shall be deemed Confidential Information and the property of Provider only, Provider acting as Disclosing Party in relation to such data. Confidential Information shall not, however, include any information which: (i) was made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known without restriction after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records.
11.2. Obligation of Confidentiality.
The Receiving Party shall not, and shall cause its employees, agents, subcontractors or representatives not to (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party, except to its employees, agents, subcontractors or representatives having a legitimate need to know such Confidential Information for the performance of the Receiving Party’s obligations under the Agreement (and only to such extent), and/or (b) use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary to perform its obligations hereunder.
11.3. Ownership and Return.
All Confidential Information shall remain the Disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the Disclosing Party will be delivered to the Disclosing Party promptly upon the Disclosing Party’s written request.
11.4. Compliance.
Nothing contained in the Agreement shall prevent Provider or Customer from complying with applicable laws. The Receiving Party may disclose Confidential Information of the Disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
11.5. Reliefs.
Customer acknowledges that breach of its obligation of confidentiality may give rise to irreparable harm to Provider, which might not be adequately compensated in the form of monetary damages. Accordingly, Provider may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, in contract or at law.
11.6. Feedbacks.
Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer provides to Provider, and nothing in the Agreement or in the Parties’ dealings arising out of or related to the Agreement will restrict Provider ‘s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. (Feedback’ refers to any suggestion or idea for improving or otherwise modifying any of Provider’s Services or other products or services.)
12. Advertising and Publicity
Provider may refer to Customer as a customer of Provider for the Services and Customer grants to Provider a limited license to use its name, logos and trademarks for the sole purpose of referring to it within the frame of its marketing activities.
13. Limited Warranty
The Services (including for the avoidance of doubt any Development, the Solutions and the Content) are provided AS IS and AS AVAILABLE. To the maximum extent permitted by applicable law, Provider disclaims all warranties with respect to the Services, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights. In particular, Provider does neither represent nor warrant that the Services shall meet Customer’s requirements, that the operation of the Services will be uninterrupted or error-free, that any errors will be corrected, that it will ensure continued compatibility of the Services with any third-party products, even if they were compatible at any given moment, that the Services will always be available and remain available unchanged or that certain subscription models available at any given moment will remain available for renewal at the end of the applicable subscription period.
14. Limited Liability
14.1. Limited Liability.
Provider’s liability under the Agreement, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.
14.2. Disclaimer.
In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, Provider disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether Provider has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.
14.3. Use of Internet.
The use of the Internet involves risks, in particular that the data transmitted may be intercepted, altered or deleted. By using the Solutions, Customer accepts these risks. Provider declines all responsibility in this respect.
14.4. Use of the Services.
The use of the Services is entirely at Customer’s own risk, and Provider expressly disclaims any liability regarding Customer’s use thereof and/or any decisions taken by Customer based on the insights gained from its use of the Services.
14.5. Limited Amount.
In no event, Provider’s total liability during any period of 12 months shall exceed the amount of the Fees actually paid by Customer during the 12 months preceding the events giving rise to Customer’s claims.
14.6. Auxiliaries.
The exclusions and limitations under this Section 14 shall extend to Provider’s directors, officers, employees, agents, representatives and auxiliaries.
15. Indemnification
15.1. Indemnification.
Customer shall defend, hold harmless from, and indemnify Provider, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney’s fees, resulting from (i) Customer’s use of the Services other than as permitted under these GTC and strictly in accordance with any documentation provided for the Services; or (ii) Provider’s use of any Customer Materials as permitted hereunder.
15.2. Indemnification Procedures.
In case of any claims or proceedings made against Provider, its directors, officers, employees or auxiliaries in relation to Customer’s use of the Services or Provider’s use of Customer Material, Provider shall (i) inform Customer without undue delay; and (ii) allow Customer to assist Provider in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.
16. Term and Termination
16.1. Entry into Force.
The Agreement shall enter into force upon acceptance by Customer of these GTC pursuant to Section 1.4 above.
16.2. Term.
The Agreement shall be in effect for the term indicated in the Subscription Plan or Order Form (the Term).
16.3. Termination for Cause.
Provider may terminate the Agreement with immediate effect, in case of any material breach by Customer, provided that, if Customer’s breach may be cured, at Provider’s sole judgement, Provider shall first give Customer 20days’ prior written notice to cure such breach at Provider’s entire satisfaction. Provider may further terminate the Agreement, in case of any infringement of third party rights or risk of infringement of such rights, through Customer’s use of the Services.
16.4. Effects of Termination.
Upon termination of the Agreement, and in addition to the consequences described elsewhere in the GTC:
a) Provider shall stop providing and Customer shall stop using the Services;
b) all rights to use and access granted to Customer hereunder (inter alia under Section 1) shall cease. All access to the Solutions and credentials shall be deactivated and suppressed;
c) Customer shall permanently delete any part of the Solutions and/or Content stored or installed on its IT systems, if any;
d) Confidential Information shall, subject to section 6.5, be returned to the Disclosing Party and/or permanently deleted from any support of the Receiving Party, at the Disclosing Party’s option, and Receiving Party shall cease using the Confidential Information; and
e) all Fees already paid by Customer shall remain acquired to Provider and are not reimbursable to Customer. Customer shall immediately pay all outstanding amounts due to Provider.
All terms which are expressed or intended to survive, and any provisions of the Agreement necessary for its interpretation or enforcement will continue to apply regardless of the reason for termination or expiry of the Agreement.
17. Miscellaneous
17.1. Independent Contractors.
The Parties acknowledge and agree that they shall be considered as independent contractors with no authority to contract for the other or in any way to bind or to commit the other or in a way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other. Under no circumstances shall either Party, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of the other. Neither Party shall pay any contributions to social security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, or provide any other contributions or benefits which might be expected in an employer-employee relationship.
17.2. Subcontractors.
Provider may use subcontractors for the provision of the Services. Provider’s use of subcontractors shall not relieve Provider of any of its duties or obligations hereunder, which shall be imposed on subcontractors.
17.3. Force Majeure.
Neither Party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, such as natural catastrophes, war, strikes, blackouts, Internet failure, virus outbreaks, or similar events. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section, and inform the other Party of its plans to resume performance.
17.4. Amendment.
The Order Form may be amended only by written instrument signed by both Parties. Provider reserves the right to amend these GTC by written notice to Customer at least 4 months prior to the end of the Initial Term or any Renewed Term, in which case Customer’s sole remedy shall be to terminate the Agreement in accordance with Section 3. In the absence of termination, such amendments shall become effective as of the beginning of the Renewed Term.
17.5. Entire Agreement.
The Agreement constitutes the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between them, as to the subject matter hereof.
17.6. Hierarchy.
In the event of a conflict or contradiction between the provisions of the GTC and those of any other contractual documents (such as the Subscription Plan and the Order Form, or any Schedule), the GTC shall take precedence, subject to express and specific deviations, deletions or additions contained in the section of the Order Form “Deviations to the GTC” to that effect.
17.7. Severability
If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement shall remain valid and enforceable to the fullest extent possible.
17.8. Electronic Form.
The words “execution”, “signature” and similar words in the Agreement shall be deemed to include unqualified electronic signatures (e.g. Docusign or any equivalent e-signature provider) which shall be of the same legal effect, validity or enforceability as a manually executed signature; while the term “in writing” shall include communications by email or other electronic forms.
17.9. No Waiver.
The failure of either Party at any time to require performance by the other Party of its obligations hereunder shall in no way affect that Party’s right to fully enforce the other Party’s obligations thereafter.
17.10. Assignment.
Neither Party shall assign and transfer any or all of its rights and obligations hereunder, in whole or in part, to any third party without the other Party’s prior written consent; provided however, that Provider may assign and transfer all of its rights and obligations hereunder to any third party acquiring all or substantially all of its business related to the Services and/or the Solutions, without Customer’s consent.
17.11. No Third Party Beneficiaries.
Except pursuant to Section 15 GTC, this Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of these GTC or the Subscription Plan or Order Form.
18. Governing Law and Jurisdiction
18.1. Governing Law.
The Agreement and/or any use of the Services shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.
18.2. Jurisdiction.
Any dispute or controversy arising out of or in relation to the Agreement and/or Customer’s use of the Services shall be subject to the exclusive jurisdiction of the competent ordinary courts at the place of the registered office of Provider. Notwithstanding the preceding, nothing in these GTC shall prevent Provider from seeking injunctive relief or any other remedy available at law in any jurisdiction in case of any infringement of its Intellectual Property Rights.
Last updated: 02.02.2022
