These general terms and conditions (GTC) form together with the terms of any subscription plan (Subscription Plan) referencing these GTC and any schedule thereto (Schedule) a legal agreement (Agreement) between RoomPriceGenie AG (CHE-162.685.045), Sumpfstrasse 18, 6312 Steinhausen, Switzerland (Provider) and any customer subscribing for the use of the Solution (as defined below) whether an individual or a legal entity (Customer; and together with Provider, the Parties).
1. Scope and Acceptance
1.1. 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 Solution specified in the Subscription Plan purchased by Customer (the Solution) and the services made available through or in connection with it (together with the provision of the Solution, the Services), with the functionalities, modules and limitations specified in the Subscription Plan .
1.2. Users Categories. The Solution may be used by Customer and its Authorized Users (the Users). Except as otherwise specified, the provisions of these GTC apply to all the Users.
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.
1.4. Acceptance. By subscribing for, setting up an account or logging in for the use of the Solution, Customer expressly agrees to be bound by the terms hereof.
For the avoidance of doubt, if Customer is a legal entity, 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. General. Subject to Customer’s compliance with these GTC, in particular the timely payment of the applicable Fees in accordance with Section 9, Provider grants to Customer during the Term a limited, revocable, non-exclusive and non-transferable right to access and use the Solution as well as the content displayed on the Solution or generated through its use by Customer (the Content together with the Solution, 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, Customer shall use the Licensed Products through its own employees, agents and/or duly authorized representatives having a need to access the Licensed Products only (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 the documentation provided by Provider, Customer must use the Licensed Products strictly in accordance with such restrictions.
2.4. Trial License. if so specified in the Subscription Plan and always subject to Customer’s compliance these GTC, the Licensed Products may be made available for free for a limited period of time – at which time the license shall automatically be converted into a fully paying license – exclusively for the purpose of the Solution’ evaluation in view of the acquisition of a full licence, to the exclusion of any commercial use (the Trial License).
2.5. No Delivery. The Solution is provided as a SaaS offering (Software as a Service); Provider shall only grant to Customer a right to access and use the Solution and shall not deliver any copy of the Solution.
2.6. Changes. Customer acknowledges that Provider may implement modifications to the Solution or Content which may include modifications to the layout or functionalities of the Solution, and Provider will have the unfettered right to remove any Content from the Solution or change its functionalities at its sole discretion.
3. Account and Credentials
3.1. Account. In order to access and use the Solution, Users shall create a personal account (the Account) and log-in to such Account. To create an Account, any User must:
a) be and remain (i) an employee, agent or representative of Customer and (ii) authorized by Customer to access and use the Solution;
b) have received from Customer or Provider initial credentials for registration of their Account;
c) if the Account is created for a legal entity, be duly authorized to do so; and
d) provide the information required during registration.
Customer warrants that all information provided in the registration process or otherwise is true and accurate. Customer shall keep such information up to date at any time.
3.2. 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.
3.3. 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 warrant that they will be available all the time.
4.2. 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).
4.3. Training Services. Provider may provide initial training to the Users if provided for in the Subscription Plan. Customer remains solely responsible for adequate further training of its personnel in how to use the Licensed Products.
4.4. 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). Services of development, adaptation or improvement of the Licensed Products (evolutive maintenance), support services, as well any additional services, do not form part of this Agreement and are subject to the conclusion of a separate agreement.
4.5. Maintenance Windows. As a rule, Maintenance Services are deployed once a week during maintenance windows during which the Licensed Products may be fully or partly unavailable. Provider shall use its best efforts to inform reasonably in advance Customer if Maintenance Services have to be performed outside of such timeframe and/or for a duration leading to a foreseeable full or partial extended unavailability of the Licensed Products.
5. Customer’s Obligations
5.1. Payment of Fees. Customer shall pay the Fees as indicated in the Subscription Plan 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 – comply at all times 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 shall not, without the prior consent of Provider, 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 Solution or its infrastructure; (v) access the Solution’s code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solution or its 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.
5.4. Licenses and Authorization. Customer shall maintain all permits and licenses that are required for the use of the Services.
5.5. Customer Default. In case of default by Customer to comply with its obligations set forth in these GTC or in the Subscription Plan, 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 Solution (Customer Materials).
6.2. Ownership. Subject only to Section 7.2, 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 Materials. 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, publicly perform, display, translate, sublicense and transfer 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. For the avoidance of doubt, Provider will not sell or otherwise commercialize the Customer Materials.
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 (i) 60 days after termination or non-renewal of the Agreement or (ii) if an account has been inactive for 12 months or more.
7. 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 Solution, 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. Notice of Infringement. 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.
7.3. 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.
7.4. 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. 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 on a yearly or monthly basis (except as otherwise specified in the documentation), and non-refundable in case of termination.
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. Credit Card. In case of payment by credit card, Customer authorizes the card issuer to pay all such amounts and authorizes Provider (or its billing agent) to charge the credit card account until the Agreement is terminated as set forth herein. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including administrative and attorney’s fees and costs, on any outstanding balance. In certain instances, the bank or the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
9.5. Payment Providers. Payment via Stripe or another payment provider is subject to this provider’s terms and conditions.
9.6. 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 Solution and/or any user credentials issued to Customer, if applicable, if Customer is in default for payment of any Fees due.
9.7. No Offset. Customer shall not offset any amounts owed by Provider to Customer against any Fees due to Provider.
9.8. Changes. Changes of the Fees and/or the subscription models, if applicable, shall become effective as of the next Renewed Term, subject to a prior written notice of 2 months by Provider. If Customer’s subscription model is no longer available, the subscription shall automatically be transformed into a subscription under the next closest subscription model existing as of its Renewed Term, as advised by Provider in its notice to Customer.
9.9. Reconnection Fee. If a customer cancels their subscription and then resubscribes, the Provider has the right to charge a 250 EUR (or equivalent) fee for account reconnection.
10. Data Protection
10.1. Provider Privacy notice. Provider has issued a privacy notice, accessible at https://roompricegenie.com/privacy-policy (the Privacy Notice), which describes how personal data is collected through the Solution 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 any personal data forwarded by Customer or of Customer’s Authorized Users (Customer 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.
10.4. Provider’s Obligations. Provider undertakes to comply with Swiss data protection legislation. If the European General Data Protection Regulation (GDPR) is applicable, Provider shall in addition comply with the obligations set out in Art. 28(3) GDPR.
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 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.
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 Solution, the Content and the Services 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. Relief. 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
13.1. The Services (including for the avoidance of doubt the Solution 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 Solution, 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.
15.1. 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 any of the following events, whichever occurs first: Customer’s subscription for the use of the Solution or first use of the Services.
16.2. Term. The Agreement shall remain in effect for the initial term indicated in the Subscription Plan or by any other appropriate means by Provider, as applicable, and in the absence of a term specified, for a initial duration of 1 month or 1 year, depending on applicable the Subscription Plan, subject to non-renewal or termination in accordance with this Section 16 (the Initial Term).
16.3. Renewal. Subscriptions shall be automatically renewed upon expiry of the Initial Term, or then current renewed term (each a Renewed Term, and together with the Initial Term, the Term), for consecutive Renewed Term of the same duration as the Initial Term, subject to prior cancellation by either Party with no prior notice.
16.4. Cancellation. Customer may cancel its Subscription Plan at any time via the dedicated tool on the Solution web interface, or by sending an email to [email protected] in which case its Subscription Plan will terminate at the end of the then current Initial Term or Renewed Term. Provider may cancel a Customer’s Subscription Plan at any time with a 15 days prior notice.
16.5. 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 a 20 day prior written notice to cure such breach at Provider’s 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.
16.6. Effects of Termination. Upon cancellation of a Subscription Plan or 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 2.1) shall cease. All access to the Solution and credentials shall be deactivated and suppressed;
c) Customer shall permanently delete any part of the Solution and/or Content stored or installed on its IT systems, if any;
d) Confidential Information shall 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.
17.1. 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. Provider reserves the right to amend these GTC by written notice to Customer at least 6 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 16.3. 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 together with the End-user Documentation 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, the End-user Documentation, or any schedule), the GTC shall prevail, subject to express and specific deviations, deletions or additions contained in in such other document, citing the section(s) of these GTC it shall amend .
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. 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.
17.9. 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 Solution, without Customer’s consent.
17.10. 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 any Subscription Plan.
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.
Updated 19 October, 2022