These GT&C are concluded by and between the Provider and the Customer and are integrated by reference in the Order Form. The Order Form is either (i) signed electronically or in wet ink by (a) the Customer or (b) the reseller reselling the Services to the Customer, as applicable, or (ii) accepted and submitted via the Provider's website subscription portal by clicking the "subscribe"-button.

Please carefully read all the terms and conditions of the Agreement.

BY SIGNING OR SUBMITTING AN ORDER FORM, CLICKING THE “BUY SUBSCRIPTION”-BUTTON OR TICKING A RESPECTIVE BOX DISPLAYED IN CONNECTION WITH THE SUBSCRIPTION AND/OR BY USING THE PROVIDER'S SERVICES IN WHOLE OR IN PART, THE CUSTOMER ACKNOWLEDGES HAVING READ, UNDERSTOOD AND ACCEPTED THE AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO RESTRICTIONS OF USE, EXCLUSION/LIMITATION OF WARRANTY/LIABILITY, CHOICE OF LAW AND CHOICE OF FORUM.

If a person enters into the Agreement on behalf of another person, such person represents and warrants that he/she/it has full authority to bind that other person to the Agreement.

Without prejudice to the Customer's obligations and the Provider's rights under the Agreement, the Provider shall have no obligation towards the Customer until the Provider has either (i) signed the Order Form or, (ii) when the Order Form is submitted via the Provider's website subscription portal, confirmed the order to the Customer by electronic means.

1. DEFINITIONS

"Agreement" means the documents set out in Section 2.2, which together form the agreement between the Parties.

"Confidential Information" means any proprietary and/or non-public knowledge, information or materials, including any intellectual property disclosed by the disclosing Party to the receiving Party. Knowledge, information and materials will be considered Confidential Information regardless of the form or manner of disclosure and whether or not marked as "confidential" or with words of similar import. Confidential Information shall also be deemed to include any information generated by a Party using Confidential Information.

"Consulting Services" means consulting or professional services additionally ordered by the Customer in or included in the subscription according to the Order Form, as further described in the SOW.

"Customer" means the customer as set out in the Order Form.

"DPA" means the data processing agreement available at https://kvant.cloud/en/terms/data-processing-agreement/

"Force Majeure Event" means each of the following events: strikes, labor disputes, embargos, pandemics, epidemics, quarantine restrictions, natural disasters, unusually severe weather, floods, earthquakes, fire, explosions, power surges, acts of God, or the public enemy, war, civil unrest, riots, acts or threats of terrorism, transport problems, communication network breakdowns, restrictions on import, export and transit, exchange restrictions on international payments, shortage in raw materials and energy, breakdown of operations or other events which arise from circumstances beyond the reasonable control of the Provider, as well as other force majeure events commonly recognized under applicable law.

"GT&C" means these general terms and conditions.

"Memberships" means a bundle of Services offered by the Provider as further described in Section 3.1

"Party" means either the Provider or the Customer individually.

"Parties" means the Provider and the Customer collectively.

"Privacy Policy" means the Provider's privacy policy available at https://kvant.cloud/en/privacy-policy/

"Provider" means Phoenix Systems AG, Hardturmstrasse 103, 8005 Zürich, Switzerland.

"Open-Source Software" means third-party open-source software included in the Services.

"Order Form" means the order form or reseller order form (as applicable) for Services.

"Remuneration" means the fees and other costs as set out in the Order Form to be paid by the Customer in consideration for the Services.

"Services" means the services purchased, directly or indirectly via a reseller, by, or on behalf of, the Customer as set out in the Order Form and further described in the contractual documentation mentioned in Section 2.2.

"SLA" means the service level agreement available at https://kvant.cloud/en/terms/service-level-agreement/

"SOW" means the statement of work attached to the Order Form, provided Consulting Services have been stipulated in the Order Form.

"Special Terms" means special terms governing certain services to be provided as part of the Services.

"Start Date" means the start date set out in the Order Form.

"Term" means the end of the fixed Agreement period as set out in the Order Form or such other period in case of renewal in accordance with Section 13.1.

"ToS" means the terms of service of the Provider governing the access and use of the Provider's website subscription portal available at https://kvant.cloud/en/terms/terms-of-service/

"Vendor" means a third party providing services, products or other offerings to be provided as part of the Services.

"Vendor Products" means any services, products or other offerings to be provided by a Vendor to be provided as part of the Services.

"Vendor Terms" means third-party terms governing certain services, products or other offerings to be provided as part of the Services, as required by the Vendor.

2. SCOPE

2.1 Content and purpose

The subject matter of the Agreement is the provision by the Provider of the Services for use by the Customer in accordance with the terms and conditions of the Agreement during the Term.

2.2 Contractual documentation

The contractual relationship between the Parties is exclusively composed of the documents and annexes set out below, which together form the Agreement between the Parties. Any conflict or discrepancy between these documents, shall be resolved according to the following order of priority:

• the applicable Special Terms and/or Vendor Terms;
• the Order Form;
• the SOW (if any);
• these GT&C;
• the SLA; and
• the DPA.

3. IMPLEMENTING PROVISIONS

3.1 Memberships

The Provider offers so-called "Memberships". These are bundled Services that are offered by the Provider at an attractive package price. The different Membership levels, the Services they include and their respective price are described on the Provider's website. These offerings may change from time to time. If the Customer wishes to subscribe for such Membership, the Services included and the Membership fee are described in detail in the Order Form.

All Services included in the Membership are, unless otherwise provided in the Order Form, valid for the duration of the Membership, which is usually one year. If "kvant AI Credits" are part of the Membership, these credits may be used during twelve months following the Customer's subscription to the respective Memberships. Credits that are not used within these twelve (12) months expire automatically by the end of the twelve months period and may not be used thereafter to purchase Services.

If not terminated in writing by observing a notice period of three months, the Membership the Customers has subscribed to will be automatically renewed for an additional twelve (12) months' period.

3.2 Services

The Provider shall provide the Services purchased by the Customer, as set out in the Order Form, against payment of the Remuneration until the Term as of the Start Date, and undertakes:

• to make the Services available to the Customer for use via a data network (dedicated Internet line, dial-up Internet connection, Virtual Private Network [VPN] or GSM mobile services) to the agreed extent (e.g. number of users, accesses per time period, number of processors, working memory capacity, storage capacity, etc.) in accordance with Section 3.3; for this purpose, the Provider shall, as applicable, make available the agreed IT infrastructure, which essentially consists of a server platform and related computing power, which the Customer can access and use via one of the data networks specified in accordance with Section 3.2;
• in accordance with Section 3.4, to provide support services to assist the Customer in the event of problems in the regular use of the Services; and
• to store and secure the Customer-specific data generated during use in accordance with Section 3.6.

The Provider is entitled to have all or individual services, to which it is obligated under the Agreement, provided by a third party. The Customer may request information from the Provider about the third parties involved in the provision of the Services.

Any additional services, in particular training, shall be additionally invoiced to the Customer in accordance with the Provider's applicable rates, insofar as they are offered by the Provider.

3.3 Technical usability and requirements

The owed availability, i.e. the technical usability of the Services and the data at the handover point for use by the Customer, is regulated in the Order Form.

The technical requirements for the Customer's use/network connection are described in the Order Form. The technical requirements specified therein, which are valid at the time of the conclusion of the Agreement, may be unilaterally adjusted by the Provider at any time; however, the Provider shall observe a notification period of one month.

3.4 Rights of use

The Customer is granted a worldwide, non-exclusive, non-transferable, non-sublicensable and remunerated right to use the Services for its own purposes during the Term and the customary intended use for the Services. The provisions of this Section 3.3 govern the rights of use of the Customer conclusively. The Services shall be used solely by the Customer authorized users.

The Provider shall provide the Customer with the number of user names and user passwords agreed in the Order Form. The Customer shall immediately change the passwords to passwords known only to the Customer. The Customer is solely responsible for the administration of user profiles and passwords and these are to be kept secret by the Customer as well as protected from unauthorized access.

The right of use exclusively includes the right to use the Services by remote access via a data line for the Customer's own purposes during the usage times and to the extent specified therein. Under no circumstances may the use be made in an unlawful manner or for unlawful purposes (including infringement of third-party intellectual property rights or use of unlawfully obtained or processed data). The Customer shall indemnify the Provider against all costs, expenses and liability incurred by the Provider as a result of such unlawful use. The Provider is entitled to delete illegal data without further ado.

The costs of remote access by the Customer (in particular for the required end devices and the connection costs of the Customer) and the costs for usage rights for software used by the Customer in connection with the Services (in particular application software, database software, middleware) shall be borne by the Customer and the Customer alone shall be responsible for the lawful licensing of this software as well as for the availability of the telecommunication connection. The transfer point for the use of the Services, and the associated data is the router exit of the Provider's data center.

The Customer undertakes to comply at all times with the requirements for the use of the Services as defined in the Agreement and in particular the Order Form. The Customer shall take the necessary precautions to ensure that third parties do not have access to the Services. In case of unauthorized access of a third party to the Services, the Customer shall immediately report this to the Provider. The Customer shall support the Provider in taking all permissible means to protect his interests. 

Insofar as documentation is agreed in the Order Form as part of the Services, the use thereof is part of the granted right of use of the Services, and is provided by the Provider in electronic form. Insofar as a download of the documentation is made possible by the Provider, the Customer may download the documentation via data line from the Provider's server and, while maintaining existing property right notices, store it, print it and reproduce it in an appropriate number for the purposes of the Agreement. The Customer has no right to a printed version of the documentation.

Unless permitted under applicable mandatory law and solely to the extent permitted by such law, the Customer shall not, without the Provider's prior written authorization, in particular (i) remarket, commercialize, sell, sublicense, rent, lease, loan, supply and/or distribute the Services and/or provide commercial IT, hosting or timesharing services in connection thereto; (ii) use the Services for a purpose other than for its own purpose; (iii) use the Services in breach of any applicable law, the Agreement and/or the Provider's reasonable instructions; (iv) allow third parties other than its authorized representatives to access and/or use the Services; (v) modify, alter, copy, transfer, emulate or create any derivative works of the Services or of any part thereof; (vi) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt any of the foregoing or to derive source code, designs, or otherwise discover the underlying intellectual property of the Services or any part thereof; (vii) remove, alter or obscure any copyright, trademark or other attribution notice, on or in, the Services and/or the documentation (as applicable); (viii) use the Services in any manner that would cause the Software to become subject to an Open-Source Software and/or could harm the reputation of the Provider; and (ix) use the Services if failure or interruption thereof, in whole or in part, could lead to death, serious bodily injury, or property or environmental damage.

3.5 Support

Unless different support services are agreed in the Order Form, the Provider undertakes to provide the following support services regarding the Services within the scope of the Remuneration agreed for the Services in accordance with the SLA and the support plan/service level purchased by the Customer:

• Helpdesk (telephone information service) for the Customer in case of application problems concerning the Services during the business hours specified in the SLA;
• Receiving and checking error messages from the Customer during said business hours;
• Troubleshooting and fault clearance regarding the Services according to availability;
• Updating of the documentation and provision of the documentation in electronic form, if such documentation is agreed in the Order Form.
• The fee for these support services is included in the Remuneration for the Services in accordance with Section 4.

Any additional maintenance or support services that go beyond the aforementioned support services shall be additionally invoiced to the Customer in accordance with the Provider's applicable rates, insofar as they are offered by the Provider.

3.6 Updates

The Provider is entitled to further develop and adapt the Services, in particular the performance features of the Services, in order to take into account technical progress and changes in the legal framework. The Provider shall inform about such updates of the Services with reasonable notice (usually one month in advance), by email or on a suitable support portal. If such further developments or adjustments significantly and unreasonably alter the use case of the Services, the Agreement may be terminated by the Customer at any time in writing with a notice period of 20 days to the end of a calendar month.

Notwithstanding the foregoing, the Provider reserves the right to modify the Services to the extent necessary to comply with any applicable law (including, without limitation, further to any change in such applicable law), without prior notice and liability towards the Customer.

3.7 Data storage and backup

The Provider shall provide the Customer with storage capacity in accordance with the Order Form for the storage of data in connection with the use of the Services, as applicable.

The data uploaded/input by the Customer belong to the Customer, even if they are stored locally in the Provider's infrastructure. The Customer is exclusively responsible for the storage and processing of the data. In particular, the Customer shall strictly comply with the provisions of the applicable data protection law when collecting and processing personal data.

The Provider enables the Customer to download its data stored in connection with the Services during the Term and within 30 calendar days after expiry or termination of the Agreement in a standardized procedure provided by the Provider. However, the Provider does not assume any warranty for the usability of downloaded data on other infrastructures. 

The Provider is entitled to delete the Customer's data stored with the Provider, as well as the software installed by the Customer on the Services, as applicable, 30 calendar days after termination of the Agreement, unless the Provider is obliged to store the data for a longer period according to mandatory law. 

The Provider shall take suitable precautions to prevent unauthorized access to the Customer's data by third parties. For this purpose, the Provider shall check the Services for viruses or other malware and shall protect the Customer's access data stored on the server against unauthorized access by suitable means in line with the state of the art.

3.8 Cooperation obligations of the Customer

The Customer is responsible for the provision and maintenance of the end devices required for the use of the Services, the data line for the access to the Services (e.g. hardware and operating system, network devices, rental or Internet connection, etc.) and ensures that their configuration and technical status comply with the respective current specifications of the Provider.

As applicable, when a software installed by the Customer on the Services is used by the Customer or by users determined by the Customer, the Customer shall observe the specifications of the respective current terms of use and documentation of the Provider as well as of the software supplier of the Customer and protects the access data against unauthorized access. 

The Customer is further responsible for providing the Provider with reasonable assistance and information to facilitate scheduling and performance of the Services.

Before transmitting data and information to the Provider and installing software, the Customer shall check it for viruses and other malware and use state-of-the-art virus protection programs.

The Customer shall back up data that the Customer transmits to the Provider and make backup copies of them in order to enable reconstruction of the data and information in case of loss or corruption. As far as the Customer is provided with the technical possibility to do so, the Customer shall regularly download and backup the data stored on the Provider's server.

In the event of material breach of the terms and conditions of use of the Services (by the Customer itself or by users designated by the Customer) and/or of the Customer's obligations to cooperate, the Provider is entitled to restrict or suspend the Customer's access to the Services. In the event of unauthorized use, including, without limitation, further to unauthorized transfer of the right to use, the Customer must immediately provide the Provider, upon request, with all information necessary to assert claims against the user, in particular the name and address of the user.

3.9 Consulting services

With respect to any Consulting Services ordered from the Provider, Customer agrees to provide the Provider with reasonable assistance and information to facilitate scheduling and performance of the Consulting Services. Consulting Services (including any deliverables agreed) are deemed accepted by the Customer with performance/delivery unless otherwise agreed in the Order Form or the SOW.

The Customer agrees that the Provider may engage qualified subcontractors to provide the Consulting Services. The Provider remains responsible for any subcontractor’s compliance with the Parties' Agreement.

4. REMUNERATION AND INVOICING

4.1 Remuneration

In consideration for the Services, the Customer shall pay the Remuneration. The Remuneration shall be paid upfront. The fees set out therein are based on the Provider's current prices at the Start Date. In the event that the amount of the fees and/or other costs are amended in accordance with this Section 4, the Remuneration to be paid under the Agreement shall be computed in accordance with the amended prices and/or costs.

Unless explicitly stipulated otherwise in the Order Form, the Remuneration and any amount due under the Agreement are exclusive of any export, transit and import clearance formalities, and related applicable duties, taxes and other costs, as well as value-added-taxes, stamp duties, levies, fees or equivalent taxes levied on account of sales in or upon exportation from Switzerland, which shall be paid additionally by the Customer.

The Provider is entitled to unilaterally adjust the prices set out in an Order Form at the beginning of a new calendar year with four months' notice. If (i) the price increase is larger than the changes in the Swiss consumer price index (reference: December 2020 = 100); (ii) the Customer does not agree with the price adjustment; and (iii) the Provider insists on the price adjustment larger than the changes in the Swiss consumer price index, the Customer has the right to terminate the Agreement prematurely at the time of the price adjustment, whereby the termination must be made in writing and with a notice period of three months for the end of a calendar month.

Furthermore, the Provider reserves the right to adjust the energy prices at any time if the electricity market prices changes.

4.2 Invoicing

All invoices are to be paid by the Customer net within 20 calendar days of the invoice date to the account specified by the Provider.

Invoices that are not objected to in writing within the payment period shall be deemed accepted.

The Provider is entitled to charge the statutory interest on arrears on all outstanding payments after expiry of the payment deadline without a reminder.

5. INTELLECTUAL PROPERTY

All intellectual property rights to the Services, in particular to any basic software present in parts of the Services, as well as pertaining to any modifications, enhancements, improvements, updates, upgrades, and derivative works thereof (irrespective of whether they originate or have been learned or derived from the use of the Services or feedback, information or suggestion of the Customer) are the exclusive property of the Provider and/or the joint owners thereof or its licensors, as applicable.

In particular, the Customer does not acquire any rights to the basic software itself contained in the Services (documentation included), to developments and the know-how of the Provider, unless this is expressly agreed otherwise in the Order Form. 

The Customer shall remain the owner of the data and any intellectual property rights thereon uploaded/input in and/or used in connection with the Services. The Customer hereby grants to the Provider a worldwide non-exclusive, non-transferable, sublicensable (including, without limitation, to any subcontractor and/or subprocessor of the Provider) and non-remunerated right to use such Customer's data for the purpose of performing the Agreement.

The Customer represents and warrants to the Provider that the upload/input and/or use of data in connection with the Services by Customer does not breach any third party rights. The Customer shall indemnify and hold harmless the Provider and any of its affiliates, and its and their respective representatives, against any claims arising out of or in connection with any such breach. If any such data could be subject to governmental regulation or may require security measures beyond those specified by the Provider, as applicable, the Customer shall not upload/input such data for processing in Services or provide or allow access to the Provider (or its subcontractors or subprocessors) unless specifically permitted by the Provider in writing.

6. WARRANTY AND LIABILITY

6.1 Warranty

The Provider guarantees during the Term that (i) the Services comply with the contractually agreed specifications and shall be available in accordance with the SLA; and (ii) it is the owner and holder of the rights to the Services or authorized to operate the Services for use by the Customer in accordance with the Agreement.

SUBJECT TO THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PROVIDER (AND ITS THIRD PARTY SUPPLIERS, INCLUDING THEIR AFFILIATES, CONTRACTORS AND SUPPLIERS) PROVIDES THE SERVICES "AS IS" WITHOUT REPRESENTATION AND WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, SECURITY, ABSENCE OF DEFECTS OR ERRORS, NONINFRINGEMENT, COMPATIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF OR IN RELATION TO THE USE OF THE SERVICES, AND THE RESULTS THEREOF, REMAINS WITH THE CUSTOMER.

The Provider neither guarantees that the Services are error-free or malware-free nor that they can be used without interruption. The Provider is entitled to suspend access for urgent maintenance work even outside the agreed maintenance windows.

In the event of defects during the Term, which the Provider is notified of in detail by the Customer immediately upon their discovery, the Provider shall take the appropriate measures required to remedy the defects within a period of time that is reasonable under the circumstances. Unless stipulated otherwise in the Order Form and subject to the support services described herein, the Provider is under no obligation to correct other defects or errors in and/or update the Services.

The above warranty applies only to the hardware and software configuration recommended by the Provider. The flawless operation of the Services in connection with third-party software is not guaranteed.

In case of modifications of the Services or interventions in the Services not made by or on behalf of the Provider, incorrect operation, as well as changes of operating conditions and/or terms of use, the warranty expires automatically.

The Provider is obliged to provide the Services carefully and professionally. In the event of complaints, the Provider shall take the commercially reasonable measures necessary to remedy the defect without any cost consequences for the Customer, provided that the Provider is responsible for the defect and the Customer (and its representatives) are not at fault.

If a third party disputes the ownership and/or the rights of use of the Services provided by the Provider to the Customer for use on the basis of the Agreement, the Customer shall immediately inform the Provider of the claim raised by the third party. The Customer authorizes the Provider to conduct and settle the legal dispute on its own, in particular also by means of settlement. The Customer shall support the Provider in this regard and follow the Provider's instructions.

The present provision exhaustively regulates the warranty granted by the Provider and any further warranty of the Provider is expressly excluded.

6.2 Liability

THE LIABILITY OF THE PROVIDER FOR CULPABLY CAUSED PERSONAL INJURIES IS UNLIMITED. THE LIABILITY FOR DIRECT DAMAGE TO PROPERTY AND FINANCIAL LOSSES CULPABLY CAUSED BY THE PROVIDER IN THE PERFORMANCE OF THE AGREEMENT IS LIMITED TO THE AMOUNT PAID BY THE CUSTOMER TO THE PROVIDER IN THE FRAMEWORK OF THE AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE CLAIM. 

ANY LIABILITY OF THE PROVIDER OR ITS REPRESENTATIVES, THIRD PARTY SUPPLIERS, INCLUDING THEIR AFFILIATES, CONTRACTORS AND SUPPLIERS, AND THEIR RESPECTIVE REPRESENTATIVES, FOR OTHER OR FURTHER CLAIMS AND DAMAGES, IN PARTICULAR CLAIMS FOR COMPENSATION FOR INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST USE, UNREALIZED SAVINGS, LOSS OF EARNINGS, REVENUES, BUSINESS OR PRODUCTION, DAMAGE TO GOODWILL OR REPUTATION, AS WELL AS LOSS OR CORRUPTION OF DATA), AS WELL AS ANY DAMAGES ARISING OUT OR IN CONNECTION WITH A FORCE MAJEURE EVENT, IS EXPRESSLY EXCLUDED, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The Provider (and its third party suppliers, including their affiliates, contractors and suppliers, and its and their respective representatives) is in no case liable for illegal content of the data stored with the Provider or their improper use (including, without limitation, any use in breach of the Agreement and/or any applicable law) by the Customer. The Customer shall indemnify and hold harmless the Provider and any of its affiliates as well as its third party suppliers (including their affiliates, contractors and suppliers), and its and their respective representatives, against any claims arising out of or in connection with any such improper use.

This limitation/exclusion of liability applies regardless of the legal basis of the liability (i.e., e.g., contract, tort, legal obligation). Any further mandatory legal liability, e.g. for fraud, gross negligence or unlawful intent, shall remain reserved.

7. CONFIDENTIALITY

7.1 Principle

The Parties may exchange Confidential Information. The receiving Party undertakes, unless specifically provided otherwise by the Agreement (i) to keep confidential at any time and not to disclose, in whole or in part, to any third party any Confidential Information of the disclosing Party; (ii) not to publish, disclose or divulge any Confidential Information of the disclosing Party; (iii) not to use any Confidential Information of the disclosing Party for any purpose other than fulfilling the Agreement; (iv) to take reasonable and appropriate measures to safeguard any Confidential Information of the disclosing Party from theft, loss or disclosure to others; and (v) not to copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of any Confidential Information of the disclosing Party, including after the expiry or termination of the Agreement for whatever reason and indefinitely.

The receiving Party agrees that a breach of this Section 7 may cause the disclosing Party irreparable damage impossible of calculation and that, in addition to all other remedies, legal or contractual, the disclosing Party shall be entitled to obtain preliminary or permanent injunctions, or such other form of equitable relief as a court of competent jurisdiction might impose, to enjoin a breach or threatened breach of the Agreement.

7.2 Exceptions

The aforementioned obligations shall not apply to Confidential Information which the disclosing Party can demonstrate by documentary evidence: (i) was in the public domain at the time of its receipt by the receiving Party; (ii) was at the time of its receipt already in the receiving Party's possession, or known to the receiving Party, without restriction on use or disclosure; (iii) becomes part of the public domain after its receipt by the receiving Party, but not through a breach of the Agreement by the receiving Party and/or its representatives; (iv) is rightfully given to the receiving Party by a third party authorized to make such disclosure and on a non-confidential basis; (v) was independently developed by the receiving Party without reliance upon Confidential Information of the disclosing Party ; and/or (vi) is approved for release and/or use by prior written consent from the disclosing Party, solely to the extent of such approval.

The receiving Party shall have the right to disclose to the relevant authority any Confidential Information of the receiving Party which is required by law, a competent court or a governmental entity to be disclosed, provided however that receiving Party shall advise the disclosing Party in advance of such disclosure to the extent practicable and permissible by such law and afford the disclosing Party, where reasonably possible, to counter such disclosure and take action to obtain a protective order or other appropriate measures precluding or limiting the disclosure of said Confidential Information. The receiving Party shall exercise reasonable efforts to ensure that any Confidential Information so disclosed will be accorded confidential treatment. The Confidential Information that is disclosed pursuant to this paragraph shall remain Confidential Information of the disclosing Party for all other purposes.

Confidential Information shall always remain the property of the disclosing Party, and the receiving Party will not obtain any rights, express or implied, in such Confidential Information.

7.3 Return or destruction

Upon the end or termination of the Agreement for whatever reason, or at the earlier request of the disclosing Party, the receiving Party shall, at the election of the disclosing Party, return or destroy all originals and copies of the Confidential Information of the disclosing Party, or, in case of Confidential Information of the disclosing Party stored in electronic, magnetic or digital media, shall erase or render unreadable all materials furnished (including working papers containing any such Confidential Information or extracts therefrom) which contain such Confidential Information.

8. VENDOR TERMS

The Provider and/or a Vendor may require the Customer to accept Vendor Terms governing the access to and/or use of Vendor Products, which shall apply in addition to these GT&C with respect to the relevant Vendor Products, without prejudice to this Section 8 and to the obligations of the Customer and the rights of the Provider under the Agreement.

TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, THE PROVIDER PROVIDES THE VENDOR PRODUCTS "AS IS" WITHOUT REPRESENTATION AND WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

THE ENTIRE RISK ARISING OUT OF OR IN CONNECTION WITH THE ACCESS TO AND/OR USE OF ANY VENDOR PRODUCTS REMAINS WITH THE CUSTOMER. In particular, the Provider makes no representation and provides no warranty that the Vendor Products are free of defects or errors, or that they adequately perform the functions they are intended to perform. The Provider is under no obligation to update or correct defects or errors in any Vendor Products and/or provide any related support service.

TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, THE PROVIDER SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER FOR ANY DAMAGE, INCLUDING ANY PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, AND LOSS OF OR CORRUPTION TO DATA), ARISING OUT OF OR IN CONNECTION WITH THE USE OF ANY VENDOR PRODUCTS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

The Customer shall indemnify and hold harmless the Provider and any of its affiliates, and its and their respective representatives, against any claims arising out of or in connection with any use of any Vendor Products by the Customer and/or its representatives in breach of the applicable Vendor Terms.

9 OPEN SOURCE SOFTWARE

The Services may include Open-Source Software. The Customer acknowledges and agrees that the access and/or use by the Customer of the Open-Source Software shall be governed by the open-source licensing terms applicable to the relevant Open-Source Software, without prejudice to this Section 9 and to the obligations of the Customer and the rights of the Provider under the Agreement.

To the extent required by the applicable open-source licensing terms, a list of the Open-Source Software included in the Services, the open-source licensing terms applicable thereto and information for obtaining the source and/or object code of the relevant Open-Source Software, as applicable, are provided in the copyright and/or other attribution notices included in the Services and/or the documentation (as applicable).

Upon reasonable notice to the Customer, the Provider has the right to replace any Open-Source Software included in the Services with software that has similar functionality or purpose.

TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, THE PROVIDER PROVIDES THE OPEN-SOURCE SOFTWARE "AS IS" WITHOUT REPRESENTATION AND WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

THE ENTIRE RISK ARISING OUT OF OR IN CONNECTION WITH THE ACCESS TO AND/OR USE OF THE OPEN-SOURCE SOFTWARE REMAINS WITH THE CUSTOMER. In particular, the Provider makes no representation and warranty that the Open-Source Software are free of defects or errors, or that they adequately perform the functions they are intended to perform. The Provider is under no obligation to update or correct defects or errors in Open-Source Software and/or provide any related support service.

TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, THE PROVIDER SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER FOR ANY DAMAGE, INCLUDING ANY PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, AND LOSS OF OR CORRUPTION TO DATA), ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE OPEN-SOURCE SOFTWARE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

The Customer shall indemnify and hold harmless the Provider and any of its affiliates, and its and their respective representatives, against any claims arising out of or in connection with any use of the Open-Source Software by the Customer and/or its representatives in breach of the applicable open-source licensing terms.

10 DATA PROTECTION

The Parties are aware that entry into and performance of the Agreement may lead to processing of personal data about the Parties, their employees, subcontractors, etc. In such cases, the Party receiving personal data shall ensure data protection in accordance with the applicable law through appropriate organizational, technical and contractual precautions.

Each Party shall comply with all applicable data protection laws in the performance of the Agreement, including, without limitation, as applicable, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as amended from time to time and the Federal Act on Data Protection (FADP) of 25 September 2020.

The Parties acknowledge that the Provider is to be seen as a processor and the Customer as a controller under the applicable data protection laws and that such relationship shall be governed by the DPA.

11 EXPORT CONTROL

The Customer is aware that the Services may be subject to the export control, trade sanctions or embargoes laws and regulations of various countries and undertakes not to export and/or otherwise use the Services to countries or to natural or legal persons or to permit access by persons to whom an export ban applies under the relevant legislation.

The Customer shall indemnify and hold harmless the Provider and any of its affiliates, and its and their respective representatives, against any claims arising out of or in connection with the Customer's and/or its representatives' breach of any such laws and regulations.

The Provider is entitled to restrict or suspend the Services and/or to terminate the Agreement with immediate effect, without liability towards the Customer, in the event that the Customer's access to and/or use of the Cloud Service due to provisions applicable to it with respect to export control, trade sanctions or embargoes laws and regulations.

12 FORCE MAJEURE

The Provider shall not be in default by reason of its delay in the performance of, or failure to perform, any of its obligations under the Agreement if such delay or failure is caused by a Force Majeure Event.

13 TERM AND TERMINATION

13.1 Term

The Agreement shall enter into force on the Start Date and shall expire at the end of the Term set forth in the Order Form or at the end of such other Term in case of renewal in accordance with Section 3.1 (for Memberships) or the following paragraph.

Unless otherwise provided in the Order Form, the Agreement shall be automatically renewed for a further year in each case, unless it is terminated in writing by one of the Parties giving three months' notice before the expiry of the current Term.

13.2 Termination

Either Party may terminate the Agreement for material breach of the Agreement by the other Party upon 20 calendar days' written notice specifying the nature of the breach, if such breach has not been cured within such 20-calendar day period.

Either Party may terminate the Agreement with immediate effect in case of insolvency, assignment for the benefit of creditors, bankruptcy of, or any similar proceedings affecting the other Party.

The Provider may terminate the Agreement with immediate effect in case its providers of products and/or services (such as its subprocessor, as applicable) restrict or suspend the Provider's access and/or use to such products and/or services that are necessary for the purpose of providing the Services.

13.3 Consequences of expiry or termination

In case of termination of the Agreement by the Customer for material breach thereof by the Provider, the Customer shall be entitled as sole and exclusive remedy to claim for the reimbursement of the part of the Remuneration (provided paid by the Customer) covering the Services that have not been duly performed by the Provider in the six months preceding the termination.

In case of termination of the Agreement by the Provider for material breach thereof by the Customer, the Provider shall be entitled, without prejudice to any other remedy available to it under the Agreement, at law, in equity or otherwise, to claim for the payment of the Remuneration in full, including for the Services that have not been yet performed by the Provider until the end of the Term. Any rights to claim damages incurred by the Provider in connection with the Customer's material breach remain reserved.

In the event of expiry or termination of the Agreement for any reason whatsoever, the Customer shall cease, and shall cause its representatives, to cease using any rights granted under the Agreement, and accordingly, inter alia, cease, directly or indirectly, using the Services (including, without limitation, the products and/or services embedded in the Services). The Customer shall, at the Provider's option, destroy or return all copies of each program embedded in the Services.

13.4 Survival

The expiry or termination of the Agreement for whatever reason will not relieve the Parties of any obligation accrued prior to such expiry or termination. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.3, 13.4, 14 and 15, as well as any Section which by its nature shall survive the expiry or termination of the Agreement, shall remain in full force and effect after such expiry or termination for whatever reason.

14 MISCELLANEOUS

14.1 Entire agreement

The Agreement and its annexes conclusively regulate the relations between the Parties with regard to the subject matter of the Agreement and replace the negotiations and correspondence conducted prior to the conclusion of the Agreement, without prejudice to the ToS and the Privacy Policy.

14.2 Amendment

The Provider reserves the right to amend these GT&C and/or any of its annexes. In such case, and provided that the Provider has informed the Customer of such an amendment and the Provider has not received a written notice of objection within 30 calendar days of informing the Customer, the amended GT&C and/or annexes, as applicable, shall be deemed approved by the Customer without reservation and apply to the Agreement. In the event that the Customer has objected to the amendment, the Agreement already entered by the Parties at the date the GT&C and/or its annexes are amended shall remain subject to the version of the GT&C and/or its annexes, as applicable, that was in force at the date the relevant Agreement was entered. Unless explicitly stipulated otherwise, all agreement for services provided by the Provider entered thereafter shall be subject to the latest version of the GT&C, including its annexes. Without prejudice to the foregoing, the Agreement, including this Section 14.2, its annexes as well as any amendments and supplements, may be amended or modified only by a written instrument duly executed by both Parties (including via electronic signature or via the procedure set out on the Provider's website subscription portal). For the avoidance of doubt, this Section 14.2 is without prejudice to other specific amendments rights of the Provider set out in the Agreement, including, without limitation, the right set out in Section 4.1.

14.3 Electronic signature

Each Party agrees that the Agreement (including any attachments hereto) or any amendment or supplement thereto may be executed by electronic signature or via the procedure set out on the Provider's website subscription portal and that any electronic signatures appearing on the Agreement and any execution thereof via said procedure shall be equivalent in validity, enforceability and admissibility to handwritten signatures.

14.4 Communications

Notices intended for the exercise of rights and obligations under the Agreement shall be given in writing, (i) if given by the Provider, by registered letter, special courier and/or email and (ii) if given by the Customer, by registered letter or by email followed by a confirmation by registered letter or special courier, to the addresses of the Parties indicated in the Order Form or any other address communicated by the relevant Party in accordance with this Section 14.4.

14.5 Severability

Should individual provisions or parts of the Agreement prove to be void or ineffective, this shall not affect the validity of the remainder of the Agreement. In such a case, the Parties shall adapt the Agreement in such a way that the purpose intended by the void or ineffective part is achieved as far as possible.

14.6 Assignment and transfer

The Agreement may be assigned or transferred to third parties only with the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. In the event that the Customer assign or transfer the Agreement, it shall be jointly and severally liable with the assignee or transferee for any obligation of the Customer under the Agreement.

14.7 No waiver

The failure of the Provider to enforce any of the provisions of the Agreement or any rights with respect thereto shall in no way be considered as a waiver of such provisions or rights or in any way affect the validity of the Agreement or excuse the Customer from any of its obligations under the Agreement. The waiver of any breach of the Agreement by the Provider shall not operate to be construed as a waiver of any other prior or subsequent breach. No single or partial exercise of any right, power, privilege or remedy by the Provider shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

15 APPLICABLE LAW AND DISPUTE RESOLUTION

15.1 Applicable law

The Agreement shall be governed by the laws of Switzerland, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 and excluding its conflict of law provisions.

15.2 Dispute resolution

Both Parties undertake to strive in good faith for an amicable settlement in the event of any disagreement in connection with the Agreement.

15.3 Place of jurisdiction

If, despite the efforts of the Parties, no agreement is reached by amicable means, the ordinary judge at the Provider's registered office shall be exclusively competent to decide all disputes arising from or in connection with the Agreement, subject to the Provider's right to sue the Customer at the latter's registered office.