GENERAL TERMS AND CONDITIONS OF DATA MIGRATION SOLUTIONS AG FOR SOFTWARE LICENSES 1. SCOPE 1.1 These General Terms and Conditions (hereinafter „GTC“) shall apply to all software of Data Migration Solutions AG, Kreuzlingen, Switzerland (hereinafter „Data Migration Solutions“), as well as its accompanying documentation (together hereinafter the „Software“) for which third parties have acquired a right of use from Data Migration Solutions or one of its distributors by executing a license annex (hereinafter „Licensee“). 1.2 Under these GTC in combination with a respective license annex Data Migration Solutions is granting to Licensee the non-exclusive, non-transferable right to use the Software in accordance with the provisions of the license annex for its own internal purposes, subject to full payment of the applicable license fees. No further rights to the Software are transferred or granted to the Licensee. 1.3 The Licensee shall be expressly prohibited from leasing the Software to third parties or sharing the Software with third parties. The transfer to an outsourcing supplier of the Licensee for the sole purpose of operating the Software for the benefit of the Licensee shall require Data Migration Solutions‘ prior written consent. Data Migration Solutions shall grant such consent upon having been furnished a written confirmation of the respective outsourcing supplier acknowledging compliance with the provisions contained herein and in the respective license annex regarding the use of the Software and confidentialty. 2. EXTENT OF USE 2.1 The Licensee shall be authorized to use the Software in the form as installed at the Licensee based on the right of use granted under these GTC. 2.2 The right of use shall expressly be limited to the use on the system set out in the respective license annex. Additional licenses shall be acquired for other systems on which the Software will be installed. 2.3 The Licensee may make the required amount of copies of the Software for backup purposes and for compliance with any legal duties regarding records management and archiving. All copies shall be marked as such and shall include the copyright notice of the original media. Licensee shall be prohibited from removing or altering any copyright notices of Data Migration Solutions. 2.4 The reproduction of the Software for other systems or program areas shall be prohibited. The Licensee may change or enhance the Software solely to the extent expressly allowed by mandatory law (namely Art. 21 Swiss Copyright Act). The rights to such changes and enhancements shall be governed by the provisions of these GTC. 2.5 Prior to any decompilation, the Licensee shall request from Data Migration Solutions, in writing and by granting a reasonable period to do so, the provision of the information and documentation required to establish the interoperability of the Software. Licensee shall be entitled only after unsuccessful expiration of such period to decompile the Software within the limitations of Art. 21 Swiss Copyright Act and Art. 17 Swiss Copyright Ordinance. 3. INTELLECTUAL PROPERTY RIGHTS 3.1 Licensee acknowledges any intellectual property rights, namely copyrights, of Data Migration Solutions or the respective rights holder to the Software and shall refrain from challenging or infringing in any way the existence or extent of such rights for the duration of the right of use granted to Licensee. Licensee will take any measures requested by Data Migration Solutions to protect the rights of Data Migration Solutions or the respective rights holder to the Software and will support Data Migration Solutions to a reasonable extent with the defense of its intellectual property rights. 4. DUTIES OF COOPERATION 4.1 Licensee shall take any required organizational and technical measures to safeguard the Software from any unintended disclosure as well as any unauthorized access, theft or misuse. Particularly, Licensee shall permanently delete any Software or parts thereof stored on systems or media prior to any transfer thereof. 4.2 Licensee shall ensure the verifyability of the amount of backup copies of the Software required for normal use and their location. 4.3 Licensee shall provide to Data Migration Solutions in writing the name of a contact person, including postal and e-mail addresses under which the availability of such contact person is warranted. Such contact person must be authorized to make any required decisions by Licensee or to immediately procure such decisions. The contact person shall arrange for a good cooperation with the contact person of Data Migration Solutions. 4.4 Licensee shall thoroughly test the Software for defects and the usability of the Software for the specific uses prior to the commencement of productive use of the Software. The same shall apply regarding Software provided to Licensee as part of remediation or maintenance. 4.5 Licensee shall take reasonable precautions for instances where the Software may not operate properly (e.g. data backups, fault analysis, periodic monitoring of the results). 5. REIMBURSEMENT 5.1 The license fees to be paid by Licensee shall be set out in the respective license annex. 5.2 All prices shall be net, excl. VAT. Invoices shall be paid within 30 days of the invoice date. 5.3 Licensee may only offset outstanding amounts with claims accepted by Data Migration Solutions or claims finally awarded by a court of law. 6. EXCESSIVE USE 6.1 Data Migration Solutions shall be entitled to audit the actual use on an annual basis and to retrospectively charge the reimbursement for any detected excessive use. If a significant excessive use is foreseeable (e.g. merger and acquisition or extension of business areas), such excessive use shall be notified to Data Migration Solutions even during the year. 6.2 Furthermore, Data Migration Solutions shall be entitled to assure itself, at the premises of the Licensee or any other location where the Software is being used, of the compliance with the provisions of these GTC and the respective license annex, particularly the terms of use and the protection of the Software. Data Migration Solutions may employ a third party (e.g. a consulting firm) for such purposes, provided that the confidentiality of the Licensee’s business and trade secrets is ensured. 6.3 If an audit results in the detection of a use of the Software exceeding the respective license annex, Licensee shall reimburse Data Migration Solutions any costs for the respective audit as well as compensation for the excessive use in relation to its actual extent and duration according to the financial terms at the time of conclusion of the affected license annex. 7. LIMITED WARRANTY 7.1 Data Migration Solutions‘ warranty shall cover any characteristics of the Software which have been warranted in writing. However, Data Migration Solutions does not warrant the uninterrupted or error-free operation of the Software or that it can be used under any and all use conditions. 7.2 If reproducible and documented defects are reported immediately after their detection, Data Migration Solutions shall – at its own discretion – either correct such defects, provide Licensee with an improved version of the Software or furnish to Licensee a reasonable work around. 7.3 If Data Migration Solutions is unable to remedy a properly reported, reproducible defect despite repeated efforts and if such defect is severely diminishing or abolishing the usability of the Software compared with the description contained in its documentation, Licensee shall twice grant Data Migration Solutions in writing a reasonable grace period and after their unsuccessful expiration, Licensee shall be entitled to rescind from the license annex in regards to the affected Software. For any other defects, Licensee shall be entitled to a decrease or a partial refund of the license fees for the affected Software in relation to the diminished value of such Software. Any further warranty by Data Migration Solutions shall be expressly excluded. 7.4 The warranty period shall be six months upon installation of the Software by Data Migration Solutions (or any of its distributors) or, if no such installation is ordered, upon delivery of the Software. 7.5 If a reported defect is not verifiable or not caused by Data Migration Solutions, Licensee shall reimburse Data Migration Solutions for its efforts incurred due to the defect analysis. Licensee shall also reimburse any additional effort of the defect analysis resulting from a breach of the Licensee’s duties of cooperation, from improper use of the Software or from the omission of procuring Solutions recommended by Data Migration Solutions. 7.6 Data Migration Solutions warrants the absence of third party rights conflicting with the usage rights granted to the Licensee under these GTC and the respective license annex. If a third party makes any claims opposing the exercise of the contractually granted rights of use, Licensee shall immediately notify and comprehensively brief Data Migration Solutions thereof in writing. If Licensee is discontinuing its use of the Software for reasons of mitigation of damages or other material reasons, Licensee shall inform the third party that the discontinuation of use does not constitute acceptance of the alleged breach of intellectual property rights. Licensee hereby authorizes Data Migration Solutions to solely control the dispute with such third party in or out of court. If Data Migration Solutions is exercising such authority, Licensee may not acknowledge any third party claims without prior written consent by Data Migration Solutions and Data Migration Solutions shall defend any such claims at its own costs. Data Migration Solutions shall then indemnify Licensee from any costs and damages finally awarded by a court of law. The provisions of this paragraph shall continue to apply after expiration of the warranty period pursuant to Section 7.4. 7.7 In case of a proven breach of a third party’s intellectual property rights, Data Migration Solutions shall provide remedy by obtaining for Licensee the legal right to use to the delivered Software or – at its own discretion – to deliver an equivalent exchanged or modified software. If the aforementioned remedies are not attainable with reasonable efforts by Data Migration Solutions, Data Migration Solutions is entitled to take back the affected components of the Software and to refund to Licensee the paid reimbursements, subtracting a reasonable compensation for the actual use. Licensee shall accept any new version of the Software, unless this would lead to unreasonable problems regarding customization and adjustments. 8. LIMITED LIABILITY 8.1 Data Migration Solutions shall only be liable to Licensee for damages resulting from this contractual relationship in cases of gross negligence and intent. However, Data Migration Solutions’ liability for death and bodily harm shall be unlimited. To the extent allowed by law, any liability of Data Migration Solutions for indirect and consequential damages, such as inter alia loss of profits, loss of savings, loss of operations, third party claims or loss of data, shall be excluded. 9. SOFTWARE MAINTENANCE 9.1 By signing the license annex, the Licensee obliges itself to also execute a software maintenance agreement allowing to maintain the operability of the Software. The maintenance Solutions shall commence with the installation of the Software by Data Migration Solutions (or any of its distributors) or, if no such installation is ordered, upon delivery of the Software. The aforementioned obligation to execute a maintenance agreement shall not apply in regards to the licensing of „JIVS History“ for legacy data and decommissioning of legacy systems. 10. CONFIDENTIALITY AND DATA PROTECTION 10.1 Licensee shall treat any knowledge of confidential information and commercial secrets of Data Migration Solutions, particularly the Software, strictly confidential and make us of them only within the scope of using the Software in accordance with these GTC and the respective license annex. This duty of confidentiality shall be valid indefinitely, as long as there is an interest of confidentiality. 10.2 Licensee may only make the Software accessible to its employees and other third parties to the extent necessary to exercise the usage rights granted in these GTC and the respective license annex. Except as stated in this subsection, the Licensee shall keep the Software confidential and inform any persons to whom access to the Software is granted about the rights of Data Migration Solutions to the Software and the duty of confidentiality, by having them acknowledge their compliance with this duty of confidentiality in writing. 10.3 Data Migration Solutions’ contractual relationship with Licensee may require the collection and processing of personal data pursuant to the Swiss Federal Data Protection Act. Licensee hereby agrees thereto and authorizes Data Migration Solutions to have such data processed anywhere within its corporate organization and to transfer and/or transmit such data for the purpose of performing its contractual duties abroad and/or to third parties, subject to any confidentiality obligations. 10.4 Data Migration Solutions shall be authorized to include Licensee in its official list of customers. Any other references shall require the prior consent of the Licensee. 11. VIOLATION OF CONFIDENTIALITY AND EXTENT OF USE 11.1 If Licensee, or any of its employees or contractors, is breaching the provisions of these GTC or a license annex regarding the use and protection of the Software in an intentional or grossly negligent manner, Licensee shall pay to Data Migration Solutions for each such breach the amount equivalent to three times the gross license fee. Any further claims shall remain reserved. 11.2 Payment of such contractual penalty shall not release the Licensee from any contractual duties. Data Migration Solutions shall be authorized to request the elimination of the illegal condition and/or contract breach or, in case of repeated violations of the usage terms, to revoke the usage rights of the Licensee without refunding already paid license fees by giving written notice thereof. In case of such revocation of the right of use, the Licensee shall immediately cease to use the Software and shall return any copies thereof to Data Migration Solutions or destroy such copies. 12. FINAL PROVISIONS 12.1 Any rights under a license annex or these GTC may only be assigned by Licensee with the prior written consent of Data Migration Solutions. Data Migration Solutions shall be free to transfer the agreement in full or in parts to a third party. 12.2 Any modifications and amendments to a license annex shall only be valid if they are agreed in an supplemental written agreement making specific reference to the affected license annex. 12.3 In case of deviations or contradictions the provisions of the license annex shall have precedence over the provisions of these GTC. 12.4 Should any provision of these GTC or a license annex be held as being unenforceable or void, the remaining provisions shall nevertheless continue in force and the ineffective or void provision shall be replaced by mutual consent with a valid and enforceable provision that is commercially as similar to the original provision as legally possible 12.5 These GTC and the license annexes shall be governed by Swiss Law. The courts at the domicile of Data Migration Solutions shall have exclusive jurisdiction, provided, however, that Data Migration Solutions shall be entitled - at its own discretion - to take actions against Licensee at Licensee’s domicile. GENERAL TERMS AND CONDITIONS OF DATA MIGRATION SOLUTIONS AG FOR THE SERVICE AND MAINTENANCE OF SOFTWARE 1. SCOPE OF APPLICATION 1.1 The conditions of these General Terms and Conditions (hereinafter the "T&Cs") apply to all service and maintenance Solutions of Data Migration Solutions, which are purchased by a beneficiary (hereinafter the “Customer”) from Data Migration Solutions or a sales partner of Data Migration Solutions by concluding a service agreement (hereinafter “service and maintenance Solutions”). The service and maintenance Solutions refer exclusively to the software listed in the corresponding service agreement (hereinafter the (“Object of service”). 1.2 In these T&Cs or the service agreement the following definitions should be used for the respective terms: "Defect" or “Error” describes a problem which means that the software cannot work to a large extent in accordance with the product specifications; "Updates" is the term used to denote supplies of error corrections (also in the form of work-arounds or patches) and/or smaller functional expansions, which largely correspond to the replaced release. An update is marked with a number after the decimal point (e.g. Vx.1, Vx.2 or Vx.2.2); "Version" denotes a specific new issue of the software, which contains substantial improvements or functional expansions. A version is marked with a number in front of the decimal point (e.g. V1.x or V2.x). 2. PREREQUISITES 2.1 The following prerequisites form the basis for the service and maintenance of the software within the scope of the service agreement. 2.2 The Customer must have a valid licence from Data Migration Solutions for the use of the software. 2.3 The Customer is obliged to use the software changed or amended by Data Migration Solutions using work-arounds, patches or updates and in accordance with the conditions of the software licence. Software which no longer corresponds to the current version or release, is only supported by Data Migration Solutions for the specified period of time. 2.4 The Customer shall specify, in writing, a contact partner for Data Migration Solutions, including the postal and e-mail addresses, at which is to be ensured that the contact partner can be reached. This person is the responsible business partner for dealing with problems associated with the use of the software. The contact partner must be able to make the necessary decisions for the Customer or to immediately bring about decisions. The contact partner shall ensure good cooperation with the contact partner at Data Migration Solutions. 2.5 In the event of defects, the Customer shall allow the specialists of Data Migration Solutions physical and, if agreed, remote access to the system for the purpose of rectifying the problem. 2.6 Data Migration Solutions reserves all industrial property rights, in particular the copyright, on the documents transferred to the Customer within the scope of the performance of service and maintenance Solutions. 3. SCOPE OF SOLUTIONS 3.1 Provided nothing else has been agreed in the service agreement, the service and maintenance Solutions comprise the following. 3.2 The Solutions comprise: a) Telephone consultation and support with software defects reported by the Customer, which represent a specific danger to the company’s operations; b) The rectification of the software errors described in detail by the Customer, and which can be reproduced, by supplying work-arounds, patches or updates, depending on availability, by Data Migration Service or the respective software manufacturer; c) The rectification of smaller program errors shall be done, at the discretion of Data Migration Solutions, by suppling work-arounds, patches or later updates. 3.3 The support Solutions comprise: a) The general updates provided (changes to the program developed for all customers) and the associated documentation, whereby there is no obligation to develop them further and Data Migration Solutions decides solely about the type, scope and frequency of updates; b) The supply of a description of new features in the software; c) Provided nothing else is specified in the corresponding service agreement, the following shall be deemed as the standby time: working days from 8:30am – 12pm and from 1pm-5pm, excluding official and regional public holidays at the place the software is installed, as well as at the site of the responsible technical service centre of Data Migration Solutions (Solutions performed outside of these hours are invoiced separately); d) Provided nothing else is specified in the corresponding service agreement, a service specialist shall be in contact within max. two (2) working days after the receipt of the specific defect notification by Data Migration Solutions. 3.4 The service does not include: a) Rectifying software errors at the site the software is installed; b) The consultation and support in association with software which has been developed or expanded by the Customer, by third parties commissioned by the Customer or by Data Migration Solutions specifically for the Customer; the consultation and support for modified or non-standard versions of the software; adjustments to changes in the browser or operating system software; troubleshooting in interfaces to hardware and operating system software, if the cause of the problem does not lie with Data Migration Service; c) Support in connection with software products, which are not listed in the specified configuration; d) Support with the rectification of defects caused by interventions of third parties or the Customer; e) The installation of updates, work-arounds and patches; f) The delivery and installation of new versions. 3.5 If the Customer explicitly demands, or requests, an extra service, Data Migration Solutions shall perform the service and invoice it on a time and material basis. 3.6 Data Migration Solutions can assume no guarantee that the software it maintains can be used without interruption and free of errors, or that the occurrence of other errors can be excluded by corrective measures. In the event of defective service and maintenance work the Customer only has the right to free rectification of the defect by Data Migration Solutions. 3.7 Data Migration Solutions is permitted to involve specialist third parties to perform Solutions. 4. CUSTOMER’S DUTY TO COOPERATE 4.1 The Customer shall report defects, errors and damage immediately. The notification can initially be made verbally, although it is to be repeated in writing by e-mail, fax or letter at the latest on the next working day. Together with the notification, Data Migration Solutions is to be provided with demo data about the error, from which the error is evident. The notification has to describe the symptoms of the error so exactly, that Data Migration Solutions is able to meet the obligation to offer targeted error rectification. 4.2 The Customer shall only let service work be performed by Data Migration Solutions specialists or people who have been authorised in writing to do so. 4.3 For security reasons it is necessary that an employee of the Customer, who is familiar with the software, is present during the service work by Data Migration Solutions software specialists. 4.4 The Customer hereby assures that the supplied or provided resources such as data carriers, documentation etc. are present. All resources provided by Data Migration Solutions remain the property of Data Migration Solutions, even if they are stored at the place of installation. 4.5 The Customer shall provide Data Migration Solutions with the necessary resources for the maintenance (e.g. machine time, terminal, remote access, if agreed, etc.). The employees of the Customer have to be prepared to issue any information required for the service. 5. COMPENSATION 5.1 The Customer shall pay Data Migration Solutions the service fees listed in the service agreement for the performance of the agreed service and maintenance Solutions, plus the VAT valid at the time of invoicing. 5.2 Flat rates are invoiced in advance and are due for payment within 14 days of the invoice date. 5.3 If Data Migration Solutions incurs extra expenses, due to the failure of the Customer to meet its duty to cooperate, due to incorrect operation or an incorrect software environment, during the performance of its contractual service and maintenance Solutions, these expenses can be invoiced separately. The Customer has to be notified of Solutions of this kind in advance. 6. LIABILITY 6.1 Data Migration Solutions is liable to the Customer exclusively for damage arising from this contractual relationship in the event of wilful intent or gross negligence. This restriction excludes liability for wilfully-caused personal damage. If legally permitted, Data Migration Solutions hereby excludes liability for indirect and consequential damage caused by defects, as well as other consequential damage such as lost profits, lost savings, operating failure, third party claims or a loss of data. 7. TERM AND TERMINATION 7.1 The contractual relationship begins upon the signing of the service agreement and is concluded for a term of at least two years. 7.2 The contractual relationship can be terminated at the earliest with a period of notice of three months to the end of this term. If it is not terminated, or it is not done on time, the contractual relationship is extended automatically by one year, without requiring a special declaration from the contract partners. In the extended term, the contractual relationship can also be terminated with a period of notice of three months to the end of the term. 8. FINAL PROVISIONS 8.1 The Customer hereby acknowledges that the performance of the contract can comprise the collection and processing of personal data, in accordance with the Federal Law on Data Protection, and that Data Migration Solutions can perform a data transfer abroad within the scope of the contract execution. 8.2 The Customer is only permitted to assign rights from the service agreement or these T&Cs with the prior written consent of Data Migration Solutions. Data Migration Solutions is free to transfer the contract fully, or in part, to third parties. 8.3 Changes or supplements to the service agreement are only valid if they have been specified in a written supplementary agreement, which explicitly refers to the respective service agreement. 8.4 If there are differences or contradictions, the provisions of the service agreement take priority over the provisions of these T&Cs. 8.5 Should a provision of the service agreement or these T&Cs be void or legally ineffective, the other provisions shall remain in effect. In this case, the void or legally ineffective provision should be replaced by an effective provision whose economic outcome comes as close as legally possible to that of the ineffective provision. 8.6 The service agreement and these T&Cs are governed by Swiss law. THE SOLE PLACE OF JURISDICTION is the ordinary courts at the registered office of Data Migration Solutions in Switzerland. Data Migration Solutions can also prosecute the Customer at the Customer's registered office.