Systemorph Standard General Terms and Conditions

These general terms and conditions (“General Terms and Conditions”) together with the other documents listed in the Offer Details (the “Offer Details”) forming a part of the Agreement, govern your subscription of the Application (as defined below) (the “Subscription”). This Agreement is entered into by the entity you represent (“you”, “your” and “Customer”), and Systemorph AG (“we”, “us”, “our”, and “Supplier”).  Customer and Supplier are collectively referred to as a “Party” and together as the “Parties”. 
Use of the application 
1.	Supplier commitment. On the terms set out in this Agreement, we will from the agreed start date, as set out in the Offer Details, provide the Application for your organization with the Supplier’s partner Microsoft Azure (collectively the “Application”) for the term of this Agreement. Access to the Application will be provided in a mutually agreed manner. The Supplier shall at all times ensure that the Application has adequate IT-security protection, at least equivalent to those recommended by Microsoft or otherwise in line with good market practice.
2.	License. You are granted a non-exclusive, non-transferable, revocable right to access and use the Application for your internal use. All intellectual property rights in the Application belong to or are disposed of with license by us. Nothing in this Agreement shall be construed as a transfer of any intellectual property rights in the Application. You are only given the limited license as described in this Agreement. We reserve all other rights in the Application. We warrant that that the use of the Application and any other deliverables developed, procured or supplied under this Agreement is not infringing any patents or any other industrial or intellectual property rights belonging to Customer or any third parties. 
3.	Acceptable use. Customer may use the Application only in accordance with this Agreement. The Customer may not, or by giving permission to a third party, copy or otherwise transfer the Application, or parts thereof, except as expressly permitted by this Agreement. Customer may not reverse engineer, decompile, disassemble, or work around technical limitations in the Application, except to the extent applicable law permits it despite these limitations. Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Application.  Customer may not rent, lease, lend, resell, transfer, or host the Application, or any portion thereof, to or for third parties except as expressly permitted in the Agreement. For the avoidance of doubt and notwithstanding anything to the contrary herein, the Customer may at any time extract the output and results created in the Application (as used in accordance with this Agreement) and will be the sole owner of any such results and information.
4.	End Users. Customer controls access by users authorized by Customer to use the Application in accordance with this Agreement (“End Users”) and is responsible for ensuring that End Users understand and comply with the content of this Agreement.
5.	Customer Content Data. Customer is solely responsible to ensure that it has the necessary rights to any content data which it uploads to and processes in the Application (“Customer Content Data”). For the avoidance of doubt, the Customer retains all rights in data uploaded to the Application (“Customer Content Data”). Customer shall ensure that the Customer Content Data uploaded shall not contain viruses or otherwise have a negative impact on the Supplier or any partner of Supplier. Customer will secure and maintain all rights in Customer Content Data necessary for Supplier to provide the Application without violating the rights of any third party or otherwise imposing obligations on us, our affiliates or partners.  Supplier and its partners do not and will not assume any obligations with respect to Customer Content Data or to Customer’s use of the Application other than as expressly set forth in this Agreement or as required by applicable law. The processing of personal data shall be governed by a Data Processing Agreement between the Parties.
6.	Responsibility for your accounts. Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Application.  Customer must promptly notify your Identity and User Access Management team if any possible misuse of your accounts or authentication credentials or any security incident related to the Application. Such information shall be forwarded by the Identity and User Access Management to Supplier through notices in accordance with Section 32.
7.	Other Customer obligations. Customer shall have and maintain access to such software, equipment and communication services that the Supplier has reasonably instructed Customer in writing to have and maintain from time to time or that the Customer otherwise reasonably could have expected is needed to access and use the Application in accordance with the Agreement. Customer shall further provide any information and/or documentation as the Supplier reasonably request as well as provide any other assistance reasonably requested by the Supplier in order for Supplier to fulfill its obligations under the Agreement.
8.	Security. The Supplier shall comply with its internal policies unless otherwise is set out in the Agreement. Relevant internal Supplier policies will be made available upon request. The Supplier is entitled to continuously updates on internal policies in accordance with Section 21.
Support, Availability and Maintenance
9.	We shall perform support and maintenance services in accordance with the Service Agreement, unless otherwise is set out in the Agreement.
10.	The Parties have agreed on a service level for the Application as provided for in the Service Agreement.
11.	Where we deem it necessary for e.g. technical, maintenance, operations or security reasons, we may make changes in the Application. We will perform such measures as quickly as possible with the aim of introducing as little interference in your use of the Application as possible, and will to the extent commercially and reasonably possible, make such changes outside of Business Hours as defined in the Service Agreement. The applicable notice requirements are set out in Section 21.
12.	Supplier will back up the Application and data stored in the Application through replication to an alternate, geo-redundant data center within the EU. Such backup and log files will be generated at least daily and have a retention time of forty-eight (48) hours. From the available backups, Supplier may conduct recovery activities, including (a) hosting infrastructure and environment recovery processes, (b) application recovery processes, and (c) data backup storage. Disaster recovery restore testing is not provided as a back-up service but is available upon request as an Additional Service. 
Purchasing Services
13.	Limited Offering.  Supplier may agree that Customer uses the Application without charge or to a reduced price for a limited period (“Limited Offering”). Provisions in this Agreement with respect to pricing, cancellation fees, payment, support and maintenance and data retention do not apply to such Limited Offering unless otherwise is expressly set out in this Agreement.
14.	Ordering. By ordering a Subscription, the Customer agrees to the Offer Details for your chosen Subscription. The Customer may request to adjust its Subscription during the term of this Agreement. Supplier shall inform the Customer of how such changes affect this Agreement (pricing, support and maintenance etc.). If Customer chooses to accept the new terms, if any, such changes shall be incorporated into this Agreement and become binding upon the Parties.
15.	Pricing and payment. Payments are due and must be made in accordance with the provisions set out in the Offer Details. 
16.	In case of late payment, the Supplier is entitled to interest in accordance with Swiss law.
17.	The agreed price for the Application will not be changed for a period of twelve (12) months from the first day of your Subscription (the “Initial Term”), except:
a.	where prices are defined as temporary in the Offer Details;
b.	after a Limited Offering has ended;
c.	if the Supplier’s hosting partner significantly changes their pricing model for hosting; or
d.	where changes in applicable mandatory laws and regulations result in substantial increases in cost for providing the Application.
18.	After the Initial Term, prices for the Application may be changed on the basis of the prices and matrix regarding turnover and number of employees set out in the Offer Details, with a notice period of forty-five (45) days in advance. If the Customer does not agree to such changes, the Customer may terminate this Agreement with thirty (90) days’ notice.
19.	The subscription fee for the Application applies per year.
20.	Taxes. Prices are exclusive of any taxes.  Customer must pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to the content of this Agreement and which Supplier is required to collect from Customer under applicable law. Customer will be responsible for any applicable stamp taxes and for all other taxes that Customer is legally obligated to pay including any taxes in Switzerland that arise on the distribution or provision of the Application to the Customers Affiliates.  Supplier will be responsible for all taxes based on Supplier net income or property ownership.  If any taxes are required to be withheld on payments Customer make to Supplier, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority; provided, however, that Customer promptly secure and for those withholdings and other documents the Supplier reasonably request to claim a foreign tax credit or refund.  
21.	Changes. The Supplier has the right to make changes and updates to the Application. We will inform you of any substantial changes to the Application in writing at the latest twenty-five (25) Business Days before an adjustment enters into force or is implemented, unless such notice reasonably could not be given, in time or at all.  If you do not accept such change, you have the right to terminate the Agreement upon twenty-five (25) Business Days written notice, or if the notice period is shorter than twenty-five (25) Business Days, with such notice period as given you in relation to the change in the Application.
Term and Termination
22.	Agreement Term and Termination. This Agreement will come into effect on the date of signing and remains in effect until the termination of the same.
23.	Customer may terminate the Agreement at any time. The termination period is thirty (90) days upon written notice.  No cancellation fee is payable by Customer.
24.	The Parties may terminate this Agreement with immediate effect if the other Party is in material breach of this Agreement that, in case it is possible to remedy such breach, has not been remedied within thirty (30) days upon written notice by the other Party requesting correction of such breach.
25.	If Customer breaches this Agreement, the Supplier may by written notice request the Customer to correct such breach within thirty (30) days. If such correction has not been made by Customer, Supplier shall be entitled to terminate this Agreement upon thirty (30) days’ written notice. Supplier may furthermore terminate this Agreement for convenience with ninety (90) days prior written notice.
26.	Effect of Termination. Upon termination of the Agreement, Supplier will export the Customer Data and return a copy of the Customer Data to the Customer or a third party appointed by Customer.  Supplier shall make such return without undue delay and in accordance with the Customer’s reasonable instructions. This obligation applies mutatis mutandis to any confidential information provided by Customer to Supplier.
Disclaimer of Warranty
27.	The Application is provided ‘as is’ without warranties of any kind other than it being fit for the stated purpose and free from viruses. Warranties in relation to the Supplier Support Services may be set out in the Service Agreement.  Other than this, we provide no warranties, whether expressed, implied, statutory, or otherwise, including warranties of merchantability, availability or fitness for a particular purpose. These disclaimers will apply to the extent permitted by applicable law.
Limitation of liability
28.	Limitation. The aggregate liability of a Party for all claims under this Agreement is limited to direct damages up to the amount paid (or payable, as applicable) under this Agreement for the Subscription, the Supplier Support Services and any Additional Services during the two (2) years before the cause of the claim arose.  
29.	In case the Subscription has not lasted two (2) years prior to the cause of the claim arose, the amount will be limited to twenty-four (24) times the fee for the Subscription at the time when the cause for the claim arose and the fees paid for the Supplier Support Services and Additional Services up until that point.
30.	EXCLUSION. For the avoidance of doubt, except in case of a breach of warranty relating to the intellectual property rights in Section 2, Section 31 (Confidentiality) and damage under the Personal Data Processing Agreement (as defined in the Offer Details) or in case of the Supplier’s willful misconduct, gross negligence or fraud (where the limitations in Sections 28 and 29 do not apply) the Supplier will not be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the Supplier was aware of such possibility or if it was reasonably foreseeable (“Excluded Damages”). Customer shall not be liable for Excluded Damages except in case of willful misconduct, gross negligence or fraud.. 
Miscellaneous
31.	Confidentiality. Except as be required by law or regulation, each Party agrees to keep and procure to be kept strictly confidential and not disclose to any third party all information in any form or medium whether disclosed by the other Party orally or in writing before or after the execution of this Agreement which relates to the business, affairs, products, developments, trade secrets, know-how, personnel, sub-contractors, customers and suppliers of the other Party, including the terms of this Agreement, as well as any information which may otherwise reasonably be regarded as confidential information. For the avoidance of doubt confidential information shall not be used by either Party for any purpose other than fulfilling its obligations and complying with the terms and conditions of this Agreement, as required by mandatory applicable law or regulations of administrative bodies or to the extent required by the rules of any relevant stock exchange.
Each Party may reveal the confidential information only to those of its employees or other persons engaged to whom disclosure is necessary for them to perform their duties for the purpose of this Agreement. Each Party shall in writing impose the above obligation of confidentiality on its employees and other persons to whom confidential information is disclosed.
The provisions of this Section 31 shall not apply to any confidential information which the receiving Party can demonstrate:
a.	is or becomes public knowledge other than by breach of this Agreement;
b.	is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;
c.	is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; 
d.	is required to be disclosed under relevant laws or stock exchange rules; or
e.	is independently developed without access to the confidential information.
The disclosure of information (including personal data) does not confer on the receiving party any right or license relating to the copyright, trademarks and any other intellectual property rights contained in the information. 
32.	Notices. Notices from Customer to Supplier as well as from Supplier to Customer must be sent by mail or email and reception of notices are required to be confirmed. 
33.	Other than in relation to notices regarding the Agreement, Customer agrees to receive electronic notices from Supplier, which will be sent by email to the account administrator as specified by the Customer. Notices are effective on the date on the return receipt or, for email, when receipt is confirmed.  Customer is responsible for ensuring that the account administrator email address that Customer specify to Supplier is accurate and current.  Any email notice that Supplier send to registered account administrator email address will be effective when sent, whether or not Customer actually receive or read the email.
34.	Assignment and Subcontracting. Neither Party may assign this Agreement either in whole or in part. Supplier may not subcontract its obligations hereunder and nor assign the Agreement in whole or in part, except with the prior written consent of Customer (such consent not to be unreasonably withheld).
35.	Customer Examination, Monitoring and Audits Rights. To enable Customer to meet its examination, oversight and control, and audit requirements Supplier will provide the Customer, or the Customers Regulator, with a direct right to examine the Application, including the ability to conduct an on-premises examination; to meet with Suppliers personnel and to access any related information, records, reports and documents. Such activities may take place at the Supplier’s offices or at other locations where activities relating to the Application are performed. Customer will be responsible for its own costs and costs associated with any of the activities described in this Section 36 exceeding eight (8) hours of included support by the Supplier.
36.	Severability. If any part of this Agreement is held unenforceable, the rest remains in full force and effect.
37.	Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. 
38.	No agency. This Agreement does not create an agency, partnership, or joint venture.
39.	No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.
40.	Applicable law and venue. This Agreement and all related legal matters shall be exclusively governed by and construed in accordance with the substantive laws of Zürich, Switzerland. 
41.	Entire agreement. This Agreement is the entire agreement concerning the Subscription and use of the Application and supersedes any prior or concurrent communications.  
42.	Force majeure.  Neither Party will be liable for any failure in performance due to causes beyond that Party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of online services)).  This Section will not, however, apply to Customer’s payment obligations under this Agreement. The Party subject to a force majeure event shall without undue delay notify the other Party of the force majeure event. In case the force majeure event remains after a period of thirty (30) days, the Party that is not subject to the Force Majeure event shall be entitled to terminate the Agreement with immediate effect upon written notice.
43.	Contracting authority. If you are an individual accepting these terms on behalf of an entity (Customer), you represent that you have the legal authority to enter into this Agreement on that entity’s behalf.
44.	Survival. The terms in Sections 21 (Changes), 28, (Limitation of Liability) 30 (Exclusion of Indirect Damages), 31 (Confidentiality) and 32 and 33 (Notices) will survive termination of this Agreement. Termination of this Agreement shall not affect any rights or liabilities that the Parties have accrued under or in respect of it prior to termination or may have in respect of any breach by any Party of any continuing provision of this Agreement.