Table of Contents
Subject of the contract
Content and purpose
The subject matter of this agreement is the provision of the contractual SaaS software of the provider for use by the customer via a data network for a limited period for the term of the agreement and other services associated with this use in the sense of a cloud service.
The provider is the owner and holder of the rights to the SaaS software or is authorized to operate the SaaS software in the cloud. He offers the SaaS software for use by the customer via a data network. The customer's use of the SaaS software is via remote access with mobile or fixed end devices of the customer. The SaaS software is not installed on the customer's (end) devices.
The annex attached to this contract as an integral part contains, where necessary, details of the services to be provided by the contracting parties, in particular
- a more detailed description of the SaaS software made available as part of the Cloud Service, including a description of the service;
- the date of commissioning;
- the availability and usage times as well as the scope of usage (e.g. number of users, accesses per time period, storage capacity, etc.);
- the data networks suitable for use;
- the technical requirements for use (system requirements, etc.);
- the remuneration for the services or the price list of the Provider;
- any other regulations or documents contained in the Annex.
Conditions of execution
Cloud service of the provider
The Provider shall provide the following Cloud Service to the Customer within the scope of this Agreement against payment:
- The Provider undertakes to make the SaaS software listed in Item 2.2 available to the Customer in the agreed scope (e.g. category, user, resources) for use via a data network in accordance with Item 2.3. For this purpose the provider stores the SaaS software on a server platform which the client can access via one of the data networks listed in section 2.2 and thus use the SaaS software. Unless otherwise agreed, the customer data will be stored in Switzerland.
- The provider undertakes to provide standard maintenance services for the SaaS software covered by the contract, including help desk services to support the client in the event of problems during regular use, in accordance with section 2.4.
The Provider also undertakes to store and secure the customer-specific data arising during use in accordance with Clause 2.5.
- The Provider is entitled to have all or some of the services to which he is obliged under this contract performed by subcontractors. The Customer may at any time request information from the Provider about the subcontractors used to provide the Cloud Service and their function. The Provider shall be liable for the acts or omissions of its subcontractors as for its own acts or omissions.
Further services of the Provider, in particular training, can be agreed upon and provided by the Provider at any time. These services will be compensated by the Customer in accordance with the Provider's offer or against reimbursement of the proven expenditure at the Provider's rates applicable at the time of the order.
For the term of this contract, the Provider shall provide the Customer with the SaaS software specified in the Annex for use by way of transmission via a data network (dedicated Internet line, Internet dial-up connection, virtual private network [VPN] or GSM mobile phone services) against payment.
The owed availability, i.e. the technical usability of the SaaS software and the data at the transfer point for use by the Client using a client, is regulated in the Appendix as far as applicable.
Any technical requirements for the use/network connection of the client are described in the Appendix. The technical requirements specified therein and valid at the time of the conclusion of the contract can be unilaterally adapted by the Provider at any time; however, the Provider must adhere to a notification period of one (1) month.
Rights of use
For the duration of this contract, the client is granted a non-exclusive, non-transferable, non-sublicensable and remunerated right to use the SaaS software mentioned in Item 2.2 for his own purposes. The provisions of this Item 2.3 conclusively govern the client's rights of use.
The Provider shall provide the Client with the number of user names and user passwords agreed in the Annex. The Client shall immediately change the passwords to passwords known only to him. The customer is solely responsible for the administration of user profiles and passwords and these must be kept secret by the customer and protected against unauthorized access.
The right of use shall exclusively include the right to use the SaaS software, as listed in section 2.2, by remote access via a data line for the client's own purposes during the periods of use and to the extent specified in the Annex. Under no circumstances may the use be made in an unlawful manner or for unlawful purposes (including infringement of third party property rights or use of unlawfully obtained or processed data). The Customer shall indemnify the Provider against all costs, expenses and liability arising from such illegal use. The Provider is entitled to delete unlawful data without further action.
The costs of remote access by the customer (in particular for the required terminal equipment and the customer's connection costs) shall be borne by the customer and the customer alone shall be responsible for the availability of the telecommunications connection. The transfer point for the use of the SaaS software and the associated data is the router exit of the provider's data center.
The rights of use of third-party software created by third parties that the provider has granted to the client are limited to the scope of the rights of use that the third party has granted to the provider. The customer is given the opportunity to inspect the license conditions of the third party manufacturer at the Provider at any time.
The rights of use do not refer to the source code. The client may not copy the SaaS software or the structure of the database. The client shall take the necessary precautions to ensure that third parties do not have access to the SaaS software. In the event of unauthorized access to the SaaS platform and software by a third party, the client must immediately notify the provider. The customer shall support the provider in taking all permissible measures to protect its interests.
The user documentation described in the appendix is part of the granted right of use of the SaaS software and is provided by the provider in electronic form. Insofar as the user documentation can be downloaded by the provider, the customer may download the documentation from the provider's server via data line and, while maintaining existing property right notices, store and print it out and reproduce it in an appropriate number for the purposes of this contract. He has no right to a printed version of the user documentation.
Unless other maintenance services are agreed in the Appendix or an appendix to the Appendix, the provider undertakes to provide the following standard maintenance services for the SaaS software as part of the remuneration agreed for the cloud service:
- Helpdesk (telephone information service) for the customer for application problems relating to SaaS software during the business hours specified in the Annex;
- Receipt and verification of error messages from the customer during business hours in Switzerland;
- Troubleshooting and error correction in the event of malfunctions of the SaaS software;
- If the SaaS software is third-party software, the elimination of errors and malfunctions or adjustments to the SaaS software or its documentation shall be limited to coordination with the software manufacturer and the installation of patches and updates or documentation provided by the software manufacturer.
The fee for the standard maintenance services is included in the regular fee for the cloud service pursuant to Section 3 below.
Any further maintenance services that go beyond the standard maintenance services mentioned above shall be invoiced to the Customer in accordance with the applicable rates of the Provider, insofar as they are offered by the Provider.
The provider is entitled to further develop and adapt the cloud service, in particular the performance features of the SaaS software, to take account of technical progress and changes in the legal framework. The Provider shall inform about such updates of the Cloud Service with an appropriate period of notice (usually 1 month in advance), in particular by e-mail or on a suitable maintenance portal. If use of the updated version of the Cloud Service is unreasonable for the customer, the contract may be terminated by the customer at any time by way of extraordinary termination in writing with a notice period of 20 days to the end of a month.
Data, data storage and backup
The Provider shall provide the Customer with storage capacity on the Provider's servers for storing data in connection with the use of the SaaS software in accordance with the Annex.
The data belong to the legal domain of the customer using the cloud service, even if they are stored locally at the provider. The customer is solely responsible for storing and processing the data. In particular, the Customer shall strictly comply with the provisions of the applicable data protection law, in particular with regard to the collection and processing of personal data.
The Provider enables the Customer to download his data stored on the Provider's server during the contract period and within 30 days after termination of the contract in a standardized procedure provided by the Provider. However, the Provider does not assume any guarantee for the usability of downloaded data on other systems.
The Provider is entitled to delete the customer's data stored with him/her for 30 days after termination of the contract, unless the Provider is obliged to store them according to mandatory law.
The Provider shall take suitable precautions against data loss in the event of failure of the cloud server and to prevent unauthorized access to the customer's data by third parties. For this purpose, the Provider shall make regular backups (at least once a day), check the server platform for viruses and protect the customer's access data stored on the server against unauthorized access using suitable, state-of-the-art means.
Obligations of the customer to cooperate
The client is responsible for the provision and maintenance of the end devices required to use the SaaS software, the data line for accessing the SaaS software (e.g. hardware and operating system, network devices, rental or Internet connection, etc.) and ensures that their configuration and technical status comply with the provider's current specifications. When using the SaaS software by him or by users designated by him, he shall observe the specifications in the appendix and in the respective current user documentation and shall protect the access data against unauthorized access.
Before transmitting data and information to the Provider, the Customer shall check them for viruses and use state-of-the-art virus protection programs.
In the event of serious violations of the terms and conditions of use of the Cloud Service (by the customer himself or by users designated by him) or of the customer's obligations to cooperate, the Provider is entitled to block the customer's access to the Cloud Service. In the event of unauthorized transfer of use, the customer must immediately provide the Provider upon request with all information required to assert claims against the user, in particular the user's name and address.
Remuneration / invoicing
The customer undertakes to pay the remuneration for the Cloud Service, which can be found in the current price list of the Provider and the appendix. The current price list including the billing and payment modalities is attached to this contract as an appendix to the Annex and is an integral part of this contract.
The Provider is entitled to adjust the price list unilaterally subject to a period of notice of three months. If the Customer does not agree to the price adjustment, he/she may terminate the Agreement prematurely with effect from the date of the price adjustment, whereby the termination must be made in writing and subject to a notice period of three months.
All invoices are to be paid by the customer strictly net within 20 days of the invoice date to the account specified by the Provider. Billing occurs immediately after the first onboarding appointment for new customers and the month before the next service period for existing customers.
Invoices that are not objected to in writing within the payment period shall be deemed to be accepted.
The Provider is entitled to charge the statutory default interest on all outstanding payments after expiry of the payment period without reminder.
All agreed or offered amounts are in Swiss Francs and exclusive of value added tax.
All intellectual property rights in the Cloud Service provided to the Customer under this Agreement are owned by the Provider or the Software Publisher. In particular, the client shall not acquire any rights to the SaaS software itself (including documentation), the developments and the know-how of the provider, unless this is expressly agreed otherwise in the contract or in the appendix.
The client is entitled to use any customer-specific developments developed by the provider on the basis of this contract to the same extent as agreed in section 2.3 above.
The provider guarantees that the SaaS software complies with the contractually agreed specifications for the duration of the contract. In the event of defects, which are reported in detail to the Provider by the Client immediately upon their discovery, the Provider shall take the appropriate measures required to remedy the defects within a period of time reasonable under the circumstances.
The Provider cannot guarantee that the SaaS software and its server platform are free of errors or that they can be used without interruption. In particular, the Provider is entitled to suspend access for urgent maintenance work even outside the agreed maintenance windows. The above warranty applies only to the hardware and software configuration recommended by the Provider. The proper operation of the SaaS software in connection with third-party software is not guaranteed.
In the event of changes or interventions in the SaaS software or the client software that are not carried out by the provider, in the event of incorrect operation or changes in operating and/or usage conditions, the warranty shall expire automatically.
The provider is obliged to provide his services carefully and professionally. In the event of complaints, the provider shall take the necessary measures to remedy the defect without cost to the client, provided that the provider is responsible for the defect and the client (and his representatives) are not at fault.
If a third party denies the ownership and/or the rights of use of the SaaS software that is provided to the client by the provider for use on the basis of this contract, the provider shall the Customer shall immediately inform the Provider of the claim raised by the third party. The customer authorizes the Provider to conduct and settle the legal dispute alone, in particular also by means of a settlement. The customer supports the Provider in this respect and follows his instructions.
The present provision governs the warranty granted by the Provider conclusively and any further warranty of the Provider is expressly excluded.
The Provider's liability for culpably caused personal injury and for direct material and financial damage culpably caused by the Provider in the performance of the present contract is limited to the sum of an annual fee which the Customer has to pay for the relevant attachment.
Any liability of Provider or its vicarious agents for other or further claims and damages, in particular claims for compensation for indirect, consequential or incidental damages, loss of profit, lost use, unrealized savings, loss of earnings, business or production, regardless of their legal basis, is expressly excluded.
The Provider is in no case liable for illegal content of the data stored with him or its improper use by the customer.
This limitation of liability applies regardless of the legal grounds for liability. The right is reserved to a further-reaching mandatory legal liability, e.g. for gross negligence or unlawful intent.
Term of contract
Duration and termination of the contract
The Agreement shall enter into force upon signature by both Parties and shall be concluded for an initial contractual period as set out in the Annex. It shall be automatically renewed for a further year at a time, unless it is terminated in writing by one of the contracting parties with three months' notice before the end of the contract period. The customer's special rights of termination shall remain reserved in the cases of the last paragraph of Clause 2.4 and Clause 3(2).
In addition, the contract may be terminated by the Customer at any time for good cause for which the Provider is responsible in writing with a notice period of 20 days to the end of a month, unless the cause has been remedied by the Provider within a reasonable period of time (at least 30 days) after written notification by the Customer.
The contract can be terminated by Provider at any time in writing with a notice period of 20 days to the end of a month for an important reason for which Provider is not responsible. Good cause is deemed to exist in particular in the event of unlawful use or if, in the event of a delay in payment, the Customer does not make any payment even after setting a final, reasonable payment deadline with the threat of termination.
Consequences of termination
In particular, the customer's access to the Cloud Service will be adjusted at the end of the contract. The customer's data will then be made available for download by the provider in accordance with Section 2.5. Further post-contractual services of the Provider not provided for in this contract are only owed if and to the extent that they are explicitly agreed between the parties.
Both parties to the contract as well as their vicarious agents mutually undertake to maintain the confidentiality of all documents and information not generally known, which relate to the business sphere of the other party and become accessible to them during the preparation and execution of this contract, including the contents of the Annex. This obligation shall remain in force as long as there is a legitimate interest in it, even after the termination of the contractual relationship.
The contracting parties are aware that the conclusion and fulfillment of this contract may result in the processing of personal data.
The Customer warrants to the Provider that it is entitled to process and store the personal data that it obtains in connection with the Contract, transmits to it and that fall under applicable data protection law. The Customer undertakes to fully indemnify the Provider in connection with any claims arising from a breach of the Provider's responsibility for data protection.
The Provider is responsible for protecting the data provided by the Customer in accordance with the current state of the art. In particular, that appropriate organizational and technical measures are implemented to meet data protection and information security requirements.
The Provider also undertakes to process and store the data only in accordance with the Customer's instructions. Without explicit instruction of the Customer, the Provider shall not disclose or sell the Customer's data to third parties.
Further details on the processing of personal data as Data Processor: Data Protection Policy Product Aioma
The Customer is aware that the Cloud Service may be subject to the export laws of various countries and undertakes not to export the Cloud Service to countries or to natural or legal persons or to allow access by persons to whom an export ban applies under the relevant legislation. The Provider is also entitled to restrict, suspend or terminate the Customer's access to the Cloud Service for good cause due to any applicable trade sanctions or embargoes.
releases the parties from the obligation to perform under this contract for as long as and to the extent that the failure to perform is due to the occurrence of force majeure circumstances. Circumstances of force majeure shall include war, strikes, riots, expropriation, storm, floods and other natural disasters as well as other circumstances beyond the control of the parties. Each party shall notify the other party in writing without delay of the occurrence of a case of force majeure.
Offsetting of receivables
The offsetting of any claims of one party to the contract with counterclaims of the other party requires the prior written agreement of the parties to the contract.
Content of the contract
This contract and its appendices regulate the relations between the contracting parties in relation to the subject matter of the contract conclusively and replace the negotiations and correspondence conducted prior to the conclusion of the contract. In the event of contradictions, the Annex shall prevail over this Contract; in the event of several Annexes, the last validly concluded provisions of the Annexes shall prevail over the contradictory provisions in an earlier Annex.
This contract, its appendices as well as any amendments and supplements require either written specification and signature by both parties to the contract or the explicit acceptance of an offer by the customer via a channel provided by the Provider to be valid. In the latter case, the offer shall become an annex according to section 1.2. of the contract by acceptance.
Notices intended for the exercise of rights and obligations under this Agreement shall be sent in writing, by e-mail, to the addresses of the Parties.
Should individual provisions or parts of this contract or an appendix prove to be void or ineffective, the validity of the rest of the contract shall not be affected. In such a case, the parties to the contract shall adjust the contract in such a way that the purpose intended by the void or ineffective part is achieved as far as possible.
Assignment and transfer
This contract may only be assigned or transferred to third parties with the prior written consent of the other contracting party, whereby consent may only be refused for good cause.
This Agreement shall be governed by Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 and excluding the conflict of laws provisions.
Settlement of disputes
Both parties to the contract are obliged to strive in good faith for a mutually agreeable settlement in the event of differences of opinion in connection with this contract.
Place of jurisdiction
If, despite the efforts of the contracting parties, no amicable settlement can be reached, the ordinary judge at the Provider's registered office shall have exclusive jurisdiction to decide all disputes arising out of or in connection with this contract, subject to the Provider's right to sue the Customer at his registered office.