This Software-as-a-Service Licence Agreement (the „Agreement“) is concluded between the Provider and the Customer on the date specified on the title page („Effective Date“).
Terms not otherwise defined in this Agreement shall have the following meanings.
„Subscription fee“ means the monthly fee payable by the customer for access to and use of the software, including the infrastructure and normal maintenance of the software, excluding support and any professional services.
„Claim“ means any claim for performance or payment, including for the delivery of goods, provision of services, payment of damages or other claims for compensation, whether based on or derived from statutory or contractual provisions, tort, unjust enrichment or any other legal institution.
„Applicable data protection laws“: means, in each case as amended (i) upon conclusion of the Agreement by the Swiss Group Company, the Swiss Data Protection Act and the associated ordinances; (ii) upon conclusion of the Agreement by the German Group Company, the EU General Data Protection Regulation 2016/679 („GDPR“) and all German laws and regulations on data protection; (iii) upon conclusion of the Agreement by the Italian Group Company, the GDPR and all Italian laws and regulations on data protection, unless otherwise agreed in each individual case.
„Authorised user“ means employees and auxiliary persons of the customer who are authorised to access the software.
„Services“ means the provision or performance of the software, infrastructure, maintenance, support and any related professional services by the Provider, as described in Sections 3 and 4.
„Third-party provider“ refers to external service providers commissioned by the provider, including providers of hosting/infrastructure services (e.g. back-up services) and encryption services.
„Fees“ means the fees and charges payable by the Customer to the Provider, including the subscription fee and fees for professional services provided by the Provider on the basis of this Agreement and, where applicable, all expenses listed in Section 5.
„Force majeure event“ means any event or circumstance beyond the reasonable control of the Provider which prevents, unreasonably interferes with or delays the fulfilment of its obligations under this Agreement. Such events include, but are not limited to: Natural disasters (e.g. earthquakes, floods, hurricanes), acts of war, terrorism or civil unrest, governmental actions or regulations (e.g. new laws, sanctions, regulatory or enforcement changes), global, regional or local health crises (e.g. pandemics, epidemics), or any other events beyond the reasonable control of the Provider. global, regional or local health crises (e.g. pandemics, epidemics), cyberattacks or widespread technical disruptions, outages or disruptions at third parties, power outages, strikes, work stoppages or slowdowns, supply chain disruptions, unavailability of essential goods or supply services, fires, explosions or other catastrophic events or other unforeseeable circumstances.
„Customer data“ means all electronic data, content and information entered by the Customer via the Software, including personal data, where applicable (i.e. where entered via the Software).
„Personal data“ means any information relating to an identified or identifiable natural person.
„Intellectual property rights“ means all rights, titles and interests in intellectual property relating to the Software, whether registered or not, including but not limited to copyrights and moral rights, patents, designs, trade marks, trade secrets, database rights, know-how and all other intellectual property rights relating to intangible property. This includes all corresponding applications, registrations, renewals, extensions and restorations that are currently in force or will come into force worldwide.
„Service level commitment“ means the availability, support and maintenance commitments defined in this Agreement as described in Sections 4.4, 4.5 and 4.6.
„Software“ means the cloud-based ERP software provided by the Provider on the basis of a Software-as-a-Service model, as well as all elements contained in or related to this software, including, but not limited to, the associated manuals and other documentation, as updated or amended from time to time.
„Standard configuration“ means the limited configuration options available to the customer within the software, expressly excluding any customised development or module differentiation.
The annexes to this agreement are an integral part of the agreement. In the event of contradictions, the annexes shall take precedence over the main text of this agreement.
This agreement is available in English, German and French. In the event of any discrepancies between the different versions, the version signed by the parties shall prevail.
Subject to the customer's compliance with this agreement, in particular the payment of the subscription fee, the provider grants the customer a limited, non-exclusive, non-transferable and non-sublicensable right to access the software via Authorised Users and to use it in the customer's country of domicile.
The customer has the right to designate new Authorised Users or to change existing Authorised Users. By adding or removing Authorised Users, the customer accepts the corresponding change to the subscription fee in accordance with the parameters listed in Annex 2. Appendix 2 shall be amended accordingly. The final applicable number of Authorised Users shall be determined by the Provider. Any objections to this final determination must be raised by the customer within 30 days of this determination, together with appropriate evidence.
The Customer may use the Software solely for its internal business purposes, the purpose intended by the Provider, which may be specified, and in accordance with all requirements of this Agreement.
Any breach of the above provisions shall entitle the provider to terminate this agreement in writing with immediate effect for good cause. All further rights of the provider are reserved.
The software is provided as a standardised cloud-based ERP solution. The customer acknowledges and agrees that the software is provided to AS IS with a standard configuration and only minimal configuration options; no individual developments, customisations or module-based differentiations are provided, unless expressly agreed otherwise in Annex 2.
The customer is prohibited from doing so:
The software was developed by employees of the provider in Switzerland, and all intellectual property rights are and remain the sole property of the provider. The customer does not acquire any rights to the software (even if individual developments have been made at the customer's request) and may not remove, change or obscure any intellectual property rights markings.
Nothing in this Agreement is intended to transfer any Intellectual Property Rights to the Customer and the Provider only grants the Customer the rights expressly set out in this Agreement.
The Provider may, at its own discretion, change and/or update the features and functionalities of the Software as they become available. Possible updates may include bug fixes, patches and new functions. The customer accepts such changes and updates as part of the licence.
If significant changes, updates or upgrades lead to an increase in the subscription fee, the provider shall inform the customer with a notice period of 60 days, stating the date of implementation. Continued use of the software after the implementation of such significant changes, updates or upgrades shall be deemed to constitute the customer's consent to the corresponding increase in the subscription fee. If the customer does not agree to such an increase, he must terminate the agreement in writing with 30 days' notice to the implementation date.
The Provider is authorised at any time to commission third parties to provide services under this Agreement. The provider is solely responsible for the careful selection, instruction and monitoring of such third parties.
The Software is hosted on servers provided by third parties and the Provider relies on the hosting and infrastructure of these third parties. They will provide the following server infrastructure, including racks, redundant power supply and internet connectivity, as of the Effective Date as follows:
The Provider is authorised to change the above-mentioned locations and/or providers at any time, provided that the total number of redundant servers is not undercut. The Provider shall not be liable for failures, interruptions or operational disruptions caused by or attributable to such third-party providers.
Training on the software shall be agreed by the parties on the basis of the schedule submitted by the provider.
The Provider shall use commercially reasonable endeavours to achieve a high availability of the Software with a target annual availability target of >99% on a 24/7 basis, excluding the following circumstances:
The provider offers the above availability at an economically justifiable cost. It does not guarantee an uninterrupted service and is not liable for failures.
The provider provides support services during the following business hours:
08:00-11:30; 13:30-16:30 CET (GMT + 01:00), unless otherwise agreed in Annex 2, on working days, i.e. from Monday to Friday, with the exception of the public holidays listed in Annex 2.
The target response times for support requests are as follows:
The severity of the fault is categorised by the provider and may change at any time during support processing.
Only the hours within Swiss business hours and working days count for the calculation of response times. No support requests will be processed outside of these hours and days. Exceptions require an express agreement between the parties; in this case, the surcharges set out in Appendix 2 shall apply.
The above times refer exclusively to the response time for initiating support services. No commitment is made with regard to the resolution time; this depends on various factors.
The provider offers the above-mentioned services at an economically justifiable cost. It does not guarantee a response within the specified times and is not liable for delayed responses.
The provider is not obliged to provide support and is not responsible for the consequences of failure to provide support.
Support requests may be submitted via the communication channels agreed in Appendix 2, which may include online helpdesk ticketing systems and/or dedicated hotlines.
Only the Authorised Users specified in Appendix 2 can request support.
The customer shall provide a contact person who is available to answer questions from the provider regarding support.
Any changes to the originally submitted information must be submitted immediately.
The provider carries out all standard maintenance work required for the software, including
Planned maintenance windows will, as far as reasonably practicable, take place during the following times: Friday from 22:00 until Monday 04:00 at the latest. Extraordinary maintenance work can be carried out at any time.
The provider implements and maintains a disaster recovery and business continuity plan that is regularly tested to quickly restore operations in the event of disasters or disruptions and to ensure the continued operation of critical functions. This plan includes procedures for backing up, restoring and maintaining critical functions and for minimising downtime. Special measures can also be agreed in Annex 2.
The Provider implements this plan at a commercially reasonable cost and does not guarantee fast recovery or continued operation and is not liable for failed or delayed recoveries or service interruptions.
For the avoidance of doubt, there is no breach of the service level commitments if they are not honoured due to actions or omissions attributable to the customer, third-party providers, other third parties or a force majeure event.
The customer must pay the subscription fee set out in Appendix 2. The subscription fee results directly from the number of Authorised Users and covers all reasonably required maintenance work and updates.
The subscription fee may be increased every six months on 1 January and 1 July of a calendar year with at least 60 days' notice, unless otherwise agreed in Annex 2. If the subscription fee increases by more than 5 % compared to the previous year, the customer may terminate this agreement in writing with 30 days' notice to the date on which the increase takes effect. If no cancellation is made in good time on the day on which the increase takes effect, the increase shall be deemed to have been approved by the customer.
The subscription fee can also be adjusted at any time in accordance with section 3.5.
The subscription fee applicable on the reference date is listed in Appendix 2.
Services other than the Software, including but not limited to services related to Software configuration, support and assistance pursuant to Section 4.5, additional or extraordinary maintenance work caused by the Customer, training of Customer personnel and delivery of additional copies of printed documentation, shall be provided on the basis of actual time spent in accordance with the Provider's applicable hourly rates, which shall be determined according to the expertise and experience of the relevant personnel („Hourly Rates“).
The hourly rates can be changed and updated at any time with a notice period of 30 days. The updated hourly rates apply to all services (excluding software) provided after the effective date of the new hourly rates.
The hourly rates applicable on the reporting date are listed in Appendix 2.
The transmission of an enquiry for services (by telephone or e-mail) constitutes an order to the provider for the corresponding services and constitutes an obligation to pay the resulting fees.
The fees for training courses include the provision of the necessary training documents to the customer.
In addition to the fees, the provider may charge the customer for all expenses incurred in providing the services. These expenses are listed in Appendix 2. The customer undertakes to reimburse the provider for these expenses in accordance with section 5.4.
The fees are invoiced monthly in arrears, due and payable within 14 days of the invoice being issued („payment period“). Payment shall be made to the bank details provided to the customer by the provider.
Any objections to invoices must be notified to the provider within seven days. Thereafter, the invoices shall be deemed to have been approved by the customer.
The Customer's obligation to pay the fees shall not be subject to any set-off and any counterclaims, rights of recovery, rights of retention or other defences that the Customer may have against the Provider or third parties shall not apply. All payments to be made by the Customer under this Agreement shall be made without any deductions or withholdings.
Overdue amounts (i.e. all fees not paid within the payment period) are subject to interest on arrears from the due date at the lower of (i) 1.5% per month or (ii) the maximum interest rate permitted under applicable law, unless waived by the provider in individual cases.
Amounts that are overdue for more than one month may, at the discretion of the Provider, also lead to the suspension of services with a notice period of 7 days until all outstanding invoices have been paid in full. The Provider shall not be liable for any damages incurred by the Customer as a result of such suspension.
As long as any amounts are overdue, the Provider reserves the right to demand advance payments for all services.
All fees are exclusive of all taxes, in particular VAT. The customer shall bear all applicable taxes, duties and official fees, with the exception of the provider's profit taxes.
The Customer shall comply with all applicable laws and regulations, including but not limited to all usage, security and other applicable guidelines provided by the Provider and applicable to the use of the Software, and shall obtain and maintain all authorisations, licences and agreements with third parties that are necessary or advisable for the provision of the Services.
The customer shall also comply with all reasonable general or specific instructions of the provider with regard to access to and use of the software.
The Customer shall co-operate in good faith with the Provider to facilitate the provision of the Services by the Provider. This obligation includes, inter alia, that:
The provider is responsible for the infrastructure required to enable access to the software on the provider side.
The Customer shall provide the infrastructure required to access and use the Software and to obtain other services, including premises, equipment, communications infrastructure, hardware and software, including the operating system („Customer Infrastructure“) in accordance with the required or recommended specifications and/or the configuration recommended by the Provider. The Customer is solely responsible for the procurement, operation and maintenance of the Customer Infrastructure.
The customer shall ensure that the software is accessed exclusively by suitably experienced, qualified, competent and trained personnel, with due care and in accordance with reasonable specifications and instructions of the provider.
The customer designates a Single Point of Contact („SPOC“) who is available to the provider in all matters and who has the authority to make the necessary decisions. The SPOC on the reference date is listed in Annex 2. Any change to the SPOC must be communicated immediately.
The customer is solely responsible for the accuracy, quality, legality, integrity and completeness of the customer data entered into the software.
The customer shall ensure that only Authorised Users have access to the software. The customer is responsible for managing and securing the confidential access data of the Authorised Users. In the event of misuse of the access data, the customer shall bear all costs and damages incurred by the provider as a result.
The customer shall take all commercially reasonable technical and organisational measures to protect the software from unlawful or unintentional disclosure or access, theft or misuse by unauthorised persons. In particular, Authorised Users may only use devices managed and issued by the Customer - on which current state-of-the-art security updates are installed - to access the Software.
Any failure by the Customer to comply with the obligations set out in this Section 6 shall release the Provider from the fulfilment of its obligations under this Agreement. The Customer shall bear all associated risks and all costs and damages incurred by the Provider as a result. The Provider shall not be liable for any damage incurred by the Customer as a result of its failure to fulfil its obligations.
The customer acknowledges that the software is provided exclusively for B2B use. He therefore guarantees that he will not advertise the software to consumers or make it available to consumers as defined under the applicable law.
Both Parties shall process Personal Data in accordance with the Applicable Data Protection Laws. The terms used in this Section 7 shall have the meaning ascribed to them in the Applicable Data Protection Laws.
For personal data that the provider receives outside of the software (e.g. contact details of employees or representatives of the customer), the provider acts as the controller. The processing of personal data is then subject to the privacy policy available here.
For personal data contained in the customer data („customer personal data“), the provider acts as the processor and the customer as the controller. For this purpose, the parties agree that a separate order data processing agreement shall be concluded, i.e. Annex 3 as of the effective date, which regulates the processing of the customer personal data.
Appendix 3 may change from time to time; the customer shall be notified of any significant changes at least 60 days in advance. If the customer does not object to the notified changes for justified reasons within 30 days of the notification, the order data processing agreement in the amended version shall be deemed accepted and Annex 3 replaced accordingly. In the event of an objection, the Provider shall take into account the reasons given by the Customer and either submit a proposal for amendment that is acceptable to the Customer or grant the Customer an extraordinary right of cancellation with effect from the date on which the amendment takes effect. If the customer does not exercise its extraordinary right of cancellation, the Order Data Processing Agreement in the amended version shall be deemed accepted and Annex 3 replaced accordingly.
The customer represents and warrants that all persons to whom customer personal data relates have been adequately informed about the processing of their personal data by the provider in accordance with Annex 3 and have consented to such processing whenever such consent is required.
The customer may request the disclosure and surrender of the customer's personal data at any time. In this respect, the Customer represents and warrants that any such access by the Provider to and any analysis of Internet and e-mail log files, e-mails, documents and other information of natural persons contained in the Customer Data will comply with all applicable legal and regulatory requirements.
The customer undertakes to indemnify the provider against all claims and expenses in connection with the above assurances and warranties.
Customer personal data is stored exclusively within Europe, and the provider shall ensure that it does not transfer any customer personal data outside Europe without the customer's consent or instructions, unless the provider takes the necessary precautions for cross-border transfers to countries without - from a Swiss perspective - adequate data protection legislation. Where necessary, the customer agrees to conclude the relevant standard contractual clauses approved by the EU Commission and adapted to the requirements of Swiss law.
The provider shall take appropriate technical and organisational measures to protect the customer's personal data from unauthorised access, disclosure, loss, deletion, destruction or modification and shall inform the customer of any breach of data security affecting the customer's personal data.
The measures include industry-standard security controls and security audits, as explained in more detail in the technical and organisational measures in Appendix 2 to Annex 3.
The provider shall ensure that the third-party providers have also taken and maintain appropriate technical and organisational measures and inform the provider in the event of data security breaches.
The third-party providers for hosting and infrastructure also fulfil certain industry standards and requirements; as at Q1 2025, these include DIN EN ISO/IEC 27001:2017 in relation to the redundant servers in Germany and Finland and ISO 9001:2015, ISO/IEC 207001:2013 and ISO 22301:2012 in relation to the backup server in Switzerland, whereby the provider relies on the certifications specified by its third-party providers in each case.
The backup concept applicable on the Effective Date is described in Appendix 2 to Annex 3. The Customer agrees that the Provider may amend this backup concept and all other provisions of Appendix 2 to Annex 3 at any time without the Customer's consent, provided that the general security level / level of the backup concept is maintained. The Provider shall then amend Appendix 2 to Annex 3 accordingly. The most recently communicated version of Appendix 2 is the current and applicable Appendix 2.
The provider ensures the encryption of customer personal data AT REST and IN TRANSIT with the help of encryption software provided by a third-party provider that uses industry-standard encryption methods.
The decryption key is stored securely in a safe provided for this purpose at one of the third-party providers that provide the hosting/infrastructure in accordance with section 4.2.
The Provider shall take all commercially reasonable measures in advance to ensure that in bankruptcy proceedings initiated against the Provider or its third-party providers, the Customer Data can be segregated and made available to the Customer. The Provider shall also take all commercially reasonable measures in advance to ensure that the Customer Data is excluded from utilisation in bankruptcy proceedings.
For good cause, the customer may, upon request, audit the provider's compliance with its obligations in relation to the processing of customer personal data, provided that the customer accepts the confidentiality obligations submitted by the provider. Such an audit may be carried out no more than once a year with at least 90 days' written notice. All costs incurred by the provider in connection with the audit of the customer shall be borne by the customer.
The Provider reserves the right to inspect the Customer's compliance with this Agreement at any time upon reasonable notice.
The audits by one party must not unreasonably impair the business operations of the other party.
The provider warrants that the software, when used as intended, has the essential functions described in the current version of the documentation and does not infringe any intellectual property rights of third parties.
The above warranty does not apply if:
The warranty shall apply during the term of this agreement and shall expire immediately upon cancellation of this agreement taking effect.
Unless expressly stated in section 9.1, all services are provided AS IS and all express or implied warranties of any kind, including warranties of merchantability, fitness for a particular purpose and achievement of a particular result, are excluded. The responsibility for the customer's use of the results generated by the software lies exclusively with the customer.
The supplier must be notified immediately in writing of any breach of warranty.
The Customer's sole remedy for breach of warranty shall be for the Provider to use commercially reasonable endeavours to restore the goods to a non-infringing condition. Any other remedy provided by law is hereby expressly excluded.
If, despite commercially reasonable efforts, the Provider is unable to restore the breach-free condition within 90 days, either party shall be entitled to terminate this Agreement by written notice with immediate effect. The Provider may waive the 90-day restoration period if it becomes apparent that the Provider will not be able to restore the breach-free condition.
Each party shall be liable for direct damages incurred by the other party as a result of a breach of its obligations under this agreement.
The Provider's total annual liability arising out of or in connection with this Agreement shall be limited to the lesser of: (i) 50% of the fees paid by the Customer to the Provider in the 3 months prior to the claim; or (ii) CHF 25,000.
The provider is under no circumstances liable for:
The Provider shall also not be liable if it is prevented from the timely or proper fulfilment of its contractual obligations for reasons for which it is not responsible, in particular for reasons attributable to an act or omission of the Customer or a third party or to an event of force majeure.
The provider shall indemnify the customer against claims by third parties (including reasonable legal fees) that assert an infringement of third-party intellectual property rights and arise exclusively through the authorised use of the software by the customer. However, the infringement of patents is excluded from this indemnification.
The foregoing indemnification is conditioned upon the Customer (i) promptly notifying the Provider of any such claim, (ii) allowing the Provider sole control over legal actions and/or proceedings upon the Provider's request, (iii) assisting the Provider as requested, and (iv) complying with all obligations under this Agreement.
The Customer shall indemnify the Provider against claims by third parties (including reasonable legal fees) arising from misuse of the Software, breach of this Agreement or other breaches, infringements, non-compliance or omissions caused by or attributable to the Customer.
A party may receive from the other party, directly or indirectly, in writing, orally or by inspection, confidential (i.e. non-public) information, including, but not limited to, business plans, training materials, technologies, trade, trade and manufacturing secrets and proprietary software components („Confidential Information“). Confidential Information includes information, ideas, know-how, concepts and procedures, in particular on data processing and organisation of processes contained in or relating to the Software.
The receiving party undertakes:
The confidentiality obligations pursuant to Section 12.2 do not apply to information that:
This Agreement shall enter into force on the Effective Date and shall remain in force until terminated in accordance with the provisions of this Agreement.
Either party may terminate this agreement at any time for any reason by giving six months' written notice.
Either party may terminate this Agreement at any time for cause upon 30 days written notice if the other party materially breaches this Agreement, provided that the terminating party has given the other party written notice of the breach and, if the breach can be cured, the other party has not cured the breach for a period of 60 days. If a cure is not possible, no cure period shall apply.
Either party may terminate this agreement at any time for cause by giving 30 days' written notice if a force majeure event prevents the other party from performing its material obligations for a period of more than 60 days.
Either party may terminate this agreement in writing at any time for cause with immediate effect if the other party becomes (or is about to become) insolvent, bankruptcy proceedings are instituted against the other party, a receiver is appointed for the other party or a court authorises restructuring, compositions or similar measures by the other party.
In the following circumstances, the Provider may terminate this Agreement (or suspend access to the Software at its discretion, with or without notice) at any time for cause with immediate effect in writing, and the Customer shall bear all costs associated with such termination or suspension:
If the Customer cancels the Agreement in breach of Section 13.2 or 13.3, the Agreement shall be deemed to have been cancelled accordingly, but the Provider shall then be entitled to invoice the Customer for the subscription fee and all expenses that would have been incurred up to the next possible ordinary cancellation date in accordance with Section 13.2.
After cancellation of the Agreement, the Provider shall support the Customer for a period of 30 days to retrieve the Customer Data as follows: The Customer may purchase a Micro-PC from the Provider at a reasonable price, on which the Software is pre-installed and runs in a read-only mode (i.e. Customer Data can be copied and downloaded, but no new Customer Data can be entered or existing Customer Data modified). The associated costs incurred by the provider (in particular set-up work) will be charged to the customer at the provider's applicable hourly rates.
After expiry of this period, the customer data will be irrevocably deleted, unless their continued retention is required by law or regulation, or the customer data are part of standard operational backup copies and can no longer be retrieved by the customer.
It is the Customer's responsibility to retrieve any Customer Data necessary to comply with any laws or regulations applicable to it within such period, and the Customer shall indemnify the Provider against all claims and expenses in connection therewith.
Beyond this Section 13.5, the Provider is not obliged to support the Customer after a cancellation for any reason, unless this is agreed separately between the Provider and the Customer.
Upon termination of the Agreement, the Customer's access to the Software and its rights to use the Software shall cease with immediate effect (with the exception of the right to retrieve the Customer Data in accordance with Section 13.5).
The Customer shall, at the Provider's discretion, return or destroy all Confidential Information of the Provider and confirm this complete return or destruction in writing at the Provider's request.
Termination of this Agreement: (i) shall not relieve the parties of any liability or obligation arising under this Agreement prior to the effective date of termination; (ii) shall not prevent any party from enforcing any rights or remedies it may have in respect of any breach of this Agreement arising under this Agreement or by operation of law prior to the effective date of termination; (iii) shall not prevent any party from obtaining performance of any obligation arising under this Agreement prior to the effective date of termination or which, by the terms of this Agreement, survives termination.
Notwithstanding anything to the contrary in this Agreement, this and any other provision of this Agreement which by its nature is reasonably intended to survive the termination of this Agreement, or which was intended to survive the termination of this Agreement (including Sections 9-12, 15, and 16), shall survive the termination of this Agreement.
All notifications required or permitted under this agreement must be made in text form. If this agreement provides for written form, the notification must be in writing in accordance with the Swiss Code of Obligations.
Notices shall be deemed given when (i) delivered personally, (ii) transmitted electronically (and receipt is confirmed), (iii) delivered by a reputable courier service (and delivery is confirmed) or (iv) sent by registered mail (and delivery is confirmed), in each case to the addresses set out in Schedule 1 (or to such other addresses as either party may have notified to the other in accordance with this provision).
This Agreement shall be governed by Swiss substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.
The ordinary courts in Solothurn, Canton of Solothurn, Switzerland, shall have exclusive jurisdiction over all disputes arising out of or in connection with this agreement.
This Agreement and all other documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements of the parties.
Subject to the provisions below, amendments to this agreement must be made in writing and signed by authorised representatives of both parties.
The provider may amend Appendix 2 on 1 January and 1 July of each calendar year with a notice period of at least 60 days. If the customer does not object to the notified changes for justified reasons within 30 days of notification, Annex 2 shall be deemed to have been accepted in the amended version and Annex 2 replaced accordingly. In the event of an objection, the provider shall examine the customer's reasons and either propose an amendment acceptable to the customer or grant the customer an extraordinary right of cancellation with effect from the date on which the amendment takes effect. If the customer does not exercise his extraordinary right of cancellation, Annex 2 in the amended version shall be deemed accepted and Annex 2 replaced accordingly. Any increase in subscription fees shall be governed by Section 5.1.
Amendments to Annex 3 are based on Section 7.1.
The failure to enforce any provision shall not constitute a waiver of future enforcement of that or any other provision. Any provision of this Agreement may be waived only by a document signed by the party waiving such provision.
If any provision of this Agreement (or any part thereof) or the application thereof is determined to be illegal, invalid or unenforceable, that provision (or the relevant part) shall be deemed severable and shall not affect the legality, validity and enforceability of the remainder of the provision or the remaining provisions of this Agreement or the application thereof.
The unlawful, void or unenforceable provision (or the relevant part thereof) shall be replaced by a new or amended provision that is lawful, valid and enforceable and most closely reflects the original commercial intentions of the parties.
The Customer may not assign or transfer this Agreement or its rights and obligations under this Agreement, in whole or in part, without the prior written consent of the Provider. The Provider may assign or transfer this Agreement and its rights and obligations under this Agreement, in whole or in part, to an affiliate of the Provider. Upon any permitted assignment or transfer, this Agreement or any part thereof shall be binding upon and inure to the benefit of the parties and their respective permitted assignees and successors. Any attempted assignment or transfer contrary to this Section 16.5 shall be void.
Neither party shall be liable for any delay or failure in the performance of its obligations under this Agreement due to a Force Majeure Event. The party affected by the Force Majeure Event shall promptly notify the other party of the occurrence of the Force Majeure Event, take reasonable steps to mitigate its effects and resume performance of its obligations as soon as reasonably practicable. For the avoidance of doubt, a Force Majeure Event shall not relieve the Customer of its obligation to pay the Fees. However, the Customer's subscription fee will be reduced for the duration of the Force Majeure Event if a Force Majeure Event prevents access to the Software.
Unless expressly stated in this agreement, this agreement does not create any rights in favour of third parties.
Nothing in this Agreement or its termination shall have the effect of transferring to the other party any employment contract, employment relationship, collective labour agreement or liability relating to (i) employees of a party, its affiliates or its subcontractors („Employees“) or (ii) any other person.
If an employee claims that, as a result of the commencement, continuation or termination of services, his/her employment relationship or a liability associated with his/her employment relationship has been transferred to the other party, the party to which the employee belongs shall indemnify the other party against all related claims and expenses, including those arising from a dismissal by this other party.
This agreement does not create an employment or agency relationship, a joint venture, or a simple partnership between the parties, and the relationship between the parties is that of independent contractors. Each party shall be individually responsible only for its obligations set forth in this Agreement. Neither party is authorised to act as the agent of the other party and neither party may enter into any contract or make any warranty or representation on behalf of the other party without the express prior written consent of the other party. Neither party shall bind the other in any matter or make any promise, representation or warranty on behalf of the other and neither party shall be bound by any act or omission of the other unless expressly authorised in writing in advance.
All claims arising out of or in connection with this Agreement may only be asserted against the parties. No claim may be asserted directly against any person who is not a party, including any past, present or future officer, director, employee, auxiliary person, shareholder, affiliate, agent, delegate or representative of a party or its affiliates. Each party shall assume the defence of all such claims against such persons.
