This Software as a Service Licence Agreement (the «Agreement») is made on the date specified on the front page (the «Effective Date») between the Provider and the Customer.
Terms not otherwise defined herein shall have the meanings set forth below.
«Subscription fee» refers to the monthly fee payable by the customer for access to and use of the software, including the infrastructure and routine maintenance of the software, excluding support and any professional services.
«Claim» denotes any claim for performance or payment, including for the supply of goods, provision of services, payment of damages or other claims for compensation, regardless of whether such claims are based on or derived from statutory or contractual provisions, torts, unjust enrichment or any other legal institution.
«Applicable data protection laws shall mean, in each case in its applicable version, (i) in the case of conclusion of the agreement by the Swiss Group Company, the Swiss Federal Act on Data Protection and its associated ordinances; (ii) in the case of conclusion of the agreement by the German Group Company, the EU General Data Protection Regulation 2016/679 («GDPR») as well as all German laws and regulations on data protection; (iii) in the case of conclusion of the agreement by the Italian Group Company, the GDPR as well as all Italian laws and regulations on data protection, in each case, unless otherwise agreed on a case-by-case basis.
«Authorised User» refers to the customer's employees and auxiliary personnel who are authorised to access the software.
«Services» refers to the provision or delivery of the software, infrastructure, maintenance, support, and any related professional services by the Provider, as described in Sections 3 and 4.
«Third-party provider» refers to external service providers commissioned by the provider, including providers of hosting/infrastructure services (including backup services) and encryption services.
«Fees» refers to the fees and charges payable by the Customer to the Provider, including but not limited to the subscription fee and fees for professional services rendered by the Provider pursuant to this Agreement, and, where applicable, all expenses listed in Section 5.
«Force Majeure» means any event or circumstance beyond the reasonable control of the Provider which prevents, unreasonably hinders or delays the performance of its obligations under this Agreement. Such events include, but are not limited to: natural disasters (e.g. earthquakes, floods, hurricanes), acts of war, acts of terrorism or civil unrest, governmental actions or regulations (e.g. new laws, sanctions, regulatory or enforcement changes), global, regional or local health crises (e.g. pandemics, epidemics), cyber-attacks or widespread technical failures, disruptions or malfunctions by third parties, power outages, strikes, labour lockouts or slowdowns, supply chain disruptions, unavailability of essential goods or utilities, fires, explosions or other catastrophic events, or other unforeseen circumstances.
«Customer data» refers to all electronic data, content and information entered by the customer via the software, including personal data, where applicable (i.e. provided that this is entered via the software).
«Personal data» refers to all information relating to an identified or identifiable natural person.
«Intellectual property rights» refers to all intellectual property rights, titles and interests in relation to the Software, whether registered or unregistered, including but not limited to copyright and moral rights, patents, designs, trademarks, trade secrets, database rights, know-how, and all other proprietary rights relating to intangible assets. This includes all corresponding applications, registrations, renewals, extensions, and restorations that are currently in force or will come into force worldwide now or in the future.
«Service Level Agreement» refers to the availability, support, and maintenance commitments defined in this agreement, as described in sections 4.4, 4.5, and 4.6.
«Software» refers to the cloud-based ERP software provided by the vendor on a Software-as-a-Service model, and all elements contained within or related to such software, including associated manuals and other documentation, in their currently updated or amended versions.
«Standard configuration» refers to the limited configuration options available to the customer within the software, explicitly excluding any individual development or module differentiation.
The annexes to this agreement are an integral part of the agreement. In the event of discrepancies, the annexes shall take precedence over the main body of this agreement.
This Agreement is available in English, German, and French. In the event of any discrepancies between the different versions, the version signed by the parties shall prevail.
Subject to the Customer's compliance with this Agreement, including payment of the subscription fee, the Provider grants the Customer a limited, non-exclusive, non-transferable, and non-sublicensable right for Authorised Users to access and use the Software in the Customer's country of establishment.
The customer has the right to designate new Authorised Users or to change existing Authorised Users. By adding or removing Authorised Users, the customer accepts the corresponding adjustment to the subscription fee in accordance with the parameters listed in Appendix 2. Appendix 2 will be adjusted accordingly. The final applicable number of Authorised Users shall be determined by the provider. Any objections to this final determination must be raised by the customer within 30 days of this determination, with corresponding evidence.
The customer may only use the software for their internal business purposes, for the purpose intended by the provider, which can be further specified, and in accordance with all requirements of this agreement.
A breach of the foregoing provisions shall entitle the provider to terminate this agreement in writing with immediate effect for good cause. All further rights of the provider are reserved.
The software is provided as a standardised cloud-based ERP solution. The Customer acknowledges and agrees that the Software is provided AS IS with a standard configuration and only minimal configuration options; no bespoke developments, customisations, or module-based differentiations will be provided unless expressly agreed otherwise in Annex 2.
Customers are forbidden from:
The software was developed by employees of the provider in Switzerland, and all intellectual property rights are and remain the sole property of the provider. The customer acquires no rights to the software (even if individual developments were made at the customer's request) and may not remove, alter, or obscure any intellectual property designations.
No provision of this Agreement aims to transfer intellectual property rights to the Customer, nor does the Provider grant the Customer any rights other than those expressly stated in this Agreement.
The provider may, at their own discretion, amend and/or update the features and functionalities of the software as they become available. Possible updates may include bug fixes, patches, and new features. The customer accepts such amendments and updates as part of the licence.
If essential changes, updates, or upgrades lead to an increase in the subscription fee, the provider will inform the customer 60 days in advance, stating the implementation date. Continued use of the software after the implementation of such essential changes, updates, or upgrades will be considered the customer's agreement to the correspondingly increased subscription fee. If the customer does not agree to such an increase, they must terminate the agreement in writing 30 days prior to the implementation date.
The provider is at all times entitled to commission third parties to provide services under this agreement. The provider is exclusively responsible for the careful selection, instruction, and supervision of such third parties.
The software is hosted on servers provided by third parties, and the provider relies on the hosting and infrastructure of these third parties. They will provide the following server infrastructure, including racks, redundant power supply, and internet connectivity, from the effective date as follows:
The provider is entitled to change the aforementioned locations and/or providers at any time, provided that the total number of redundant servers is not reduced. The provider shall not be liable for any failures, interruptions or operational disruptions caused by or attributable to such third-party providers.
Software training shall be agreed by the parties on the basis of the schedule submitted by the provider.
The provider shall make commercially reasonable efforts to achieve high availability of the software with a targeted annual availability objective of >99% on a 24/7 basis, excluding the following circumstances:
The provider offers the above availability within commercially reasonable endeavours. It does not guarantee uninterrupted service and accepts no liability for outages.
The provider offers support services during the following business hours:
08:00-11:30 hrs; 13:30-16:30 hrs CET (GMT + 01:00), unless otherwise agreed in Annex 2, on working days, i.e. Monday to Friday, with the exception of public holidays listed in Annex 2.
The target response times for support requests are as follows:
The classification of the severity of the disruption is carried out by the provider and can be changed at any time during the support process.
For the calculation of response times, only hours falling within Swiss business hours and working days are counted. Support requests will not be processed outside of these times and days. Exceptions require express agreement between the parties; in this case, the surcharges stipulated in Appendix 2 shall apply.
The times stated above refer solely to the response time for initiating support services. No commitment is given regarding the resolution time; this depends on various factors.
The provider offers the aforementioned services at a commercially reasonable cost. They do not guarantee a response within the stated times and are not liable for delayed responses.
The provider is not obliged to provide support and is not responsible for any consequences arising from the failure to provide support.
Support requests can be submitted via the communication channels agreed in Appendix 2, which may include online helpdesk ticketing systems and/or dedicated hotlines.
Only the Authorised Users specified in Annex 2 may request support.
The customer provides a contact person who is reachable to answer the provider's queries regarding support.
Any changes to the information originally submitted must be reported immediately.
The provider performs all standard maintenance required for the software, including:
Scheduled maintenance windows will, where reasonably practicable, take place during the following times: Friday from 10:00 PM to Monday 4:00 AM at the latest. Extraordinary maintenance works may be carried out at any time.
The provider implements and maintains a disaster recovery and business continuity plan, which is regularly tested to ensure rapid restoration of operations in the event of disasters or disruptions and to guarantee the ongoing operation of critical functions. This plan includes procedures for backing up, restoring, and maintaining critical functions, as well as for minimising downtime. Specific measures may also be agreed upon in Annex 2.
The provider implements this plan to the extent it is economically feasible and does not guarantee swift restoration or continuous operation, nor shall it be liable for any failed or delayed restorations or service interruptions.
For the avoidance of doubt, there shall be no breach of the Service Level Agreements if they are not met due to actions or omissions attributable to the Customer, third-party providers, other third parties, or an event of Force Majeure.
The customer is to pay the subscription fee specified in Schedule 2. The subscription fee is directly determined by the number of Authorised Users and covers all reasonably necessary maintenance and updates.
The subscription fee may be increased semi-annually on 1 January and 1 July of each calendar year, with a notice period of at least 60 days, unless otherwise agreed in Appendix 2. If the subscription fee is increased by more than 5 % compared to the previous year, the customer may terminate this agreement in writing with a notice period of 30 days prior to the effective date of the increase. If no timely termination is received prior to the effective date of the increase, the increase shall be considered approved by the customer.
The subscription fee can also be adjusted at any time in accordance with Section 3.5.
The subscription fee applicable on the cut-off date is listed in Appendix 2.
Other services besides the software, including services related to software configuration, support and assistance as per section 4.5, additional or extraordinary maintenance work caused by the customer, training of the customer's personnel, and delivery of additional copies of printed documentation, shall be provided on a time and materials basis according to the provider's current hourly rates, which are determined according to the expertise and experience of the personnel involved («Hourly Rates»).
The hourly rates can be changed and updated at any time with 30 days' notice. The updated hourly rates apply to all services (excluding software) provided after the effective date of the new hourly rates.
The hourly rates applicable on the reference date are listed in Appendix 2.
The submission of a request for services (by telephone or email) constitutes an instruction to the provider for the relevant services and establishes an obligation to pay the resulting fees.
The fees for training include the provision of the necessary training materials to the customer.
In addition to the fees, the provider may charge the customer for all expenses incurred in the provision of the services. These expenses are listed in Appendix 2. The customer agrees to reimburse the provider for these expenses in accordance with section 5.4.
The fees will be invoiced monthly in arrears, due and payable within 14 days of the invoice date («payment period»). Payment shall be made to the bank details provided by the supplier to the customer.
Any objections to invoices must be communicated to the supplier within seven days. After this period, the invoices will be considered approved by the customer.
The Customer's obligation to pay fees is not subject to set-off and any counterclaims, claims for reimbursement, rights of retention, or other objections that the Customer may have against the Provider or third parties are not effective. All payments to be made by the Customer under this Agreement shall be made without any deductions or retentions.
Late payments (i.e. any fees not settled by the due date) shall bear interest at the lower of the following rates, unless the provider waives it in individual cases, from the due date: (i) 1.5% per month or (ii) the maximum interest rate permitted by applicable law.
Amounts that are more than one month overdue may, at the provider's discretion, also lead to the suspension of services with 7 days' notice until all outstanding invoices have been settled in full. The provider shall not be liable for any damages incurred by the customer as a result of such suspension.
As long as any amounts are overdue, the provider reserves the right to demand advance payments for all services.
All fees are exclusive of all taxes, including VAT. The customer shall bear all applicable taxes, duties and governmental charges, except for the provider's income taxes.
The customer shall comply with all applicable laws and regulations, including all usage, security, and other applicable guidelines provided by the provider and applying to the use of the software, and shall obtain and maintain all permits, licences, and agreements with third parties that are required or recommended for the procurement of services.
The customer furthermore complies with all reasonable general or specific instructions from the provider regarding access to and use of the software.
The customer shall cooperate in good faith with the provider to facilitate the provision of the Services by the provider. This obligation includes, but is not limited to, the following:
The provider is responsible for the infrastructure required to enable access to the software from their side.
The customer provides the infrastructure required to access and use the software and to obtain other services, including premises, equipment, communication infrastructure, hardware, and software, including the operating system («Customer Infrastructure») in accordance with the required or recommended specifications and/or the configuration recommended by the supplier. The customer is solely responsible for the procurement, operation, and maintenance of the Customer Infrastructure.
The customer shall ensure that access to the software is exclusively granted to suitable experienced, qualified, competent, and trained personnel, with due care, and in accordance with reasonable specifications and instructions from the provider.
The customer refers to a Single Point of Contact («SPOC») who is available to the supplier for all matters and has the competence to make the necessary decisions. The SPOC on the reference date is listed in Annex 2. Any change of SPOC must be communicated immediately.
The customer is solely responsible for the accuracy, quality, legality, integrity, and completeness of the customer data entered into the software.
The Customer shall ensure that only Authorised Users gain access to the Software. The Customer is responsible for the management and security of the confidential access credentials of Authorised Users. In the event of misuse of the access credentials, the Customer shall bear all costs and damages incurred by the Provider as a result.
The customer shall take all economically reasonable technical and organisational measures to protect the software against unlawful or unintentional disclosure or unauthorised access, theft or misuse. In particular, Authorised Users may only use devices managed and issued by the customer – on which current security updates are installed according to the latest state of the art – to access the software.
Any failure by the customer to comply with the obligations set out in this Section 6 shall release the provider from its obligations under this agreement. The customer shall bear all associated risks and all costs and damages incurred by the provider as a result. The provider shall not be liable for any damages suffered by the customer due to its non-performance.
The customer acknowledges that the software is provided exclusively for B2B use. They therefore guarantee not to advertise or make the software available to consumers, as defined under applicable law.
Both parties shall process personal data in accordance with the Applicable Data Protection Laws. The terms used in this Section 7 shall have the meanings attributed to them in the Applicable Data Protection Laws.
For personal data that the provider receives outside of the software (e.g. contact details of employees or representatives of the customer), the provider acts as the controller. The processing of personal data is then subject to the privacy policy available here.
For personal data contained within the customer data («customer personal data»), the provider acts as a processor and the customer as the controller. For this, the parties agree that a separate order data processing agreement will be concluded, i.e. Annex 3 as of the effective date, which governs the processing of customer personal data.
Annex 3 may be amended from time to time; material changes will be notified to the customer with at least 60 days' notice. If the customer does not object to the notified changes for valid reasons within 30 days of notification, the order data processing agreement in the amended version shall be deemed accepted and Annex 3 shall be replaced accordingly. In the event of an objection, the provider shall consider the customer's stated reasons and either submit an amendment proposal acceptable to the customer or grant the customer an extraordinary right of termination as of the date the amendment takes effect. If the customer does not exercise their extraordinary right of termination, the order data processing agreement in the amended version shall be deemed accepted and Annex 3 shall be replaced accordingly.
The customer assures and guarantees that all individuals whose customer personal data relates have been sufficiently informed about the processing of their personal data by the provider in accordance with Annex 3 and have consented to such processing whenever such consent is required.
The customer may at any time request disclosure and release of customer personal data. In this respect, the customer assures and guarantees that any access by the provider to and any evaluation of internet and e-mail log files, emails, documents, and other information of natural persons contained in the customer data, shall comply with all applicable legal and regulatory requirements.
The customer undertakes to indemnify the supplier against all claims and expenses arising in connection with the aforementioned representations and warranties.
Customer personal data will fundamentally be stored exclusively within Europe, and the provider shall ensure that it does not transmit any customer personal data outside of Europe without the customer's consent or instruction, unless the provider takes the necessary precautions for cross-border transfers to countries without an adequate level of data protection (from a Swiss perspective). Where necessary, the customer agrees to conclude the relevant standard contractual clauses approved by the EU Commission and adapted to the requirements of Swiss law.
The provider shall take appropriate technical and organisational measures to protect customer personal data from unauthorised access, disclosure, loss, deletion, destruction or modification, and shall inform the customer of any data security breach affecting the customer personal data.
The measures include industry-standard security checks and audits, as further elaborated in the technical and organisational measures in Annex 2 to Appendix 3.
The provider ensures that third parties have also taken and maintain appropriate technical and organisational measures and inform the provider in the event of data security breaches.
The third-party providers for hosting and infrastructure also meet specific industry standards and guidelines; by Q1 2025, these include, among others, DIN EN ISO/IEC 27001:2017 for the redundant servers in Germany and Finland, and ISO 9001:2015, ISO/IEC 207001:2013, and ISO 22301:2012 for the backup server in Switzerland, with the provider each time relying on the certifications provided by its third-party providers.
The backup concept applicable on the cut-off date is described in Appendix 2 to Annex 3. The Customer agrees that the Provider may amend this backup concept, as well as all other provisions of Appendix 2 to Annex 3, at any time without the Customer's consent, provided that the general level of security / level of the backup concept is maintained. The Provider shall then amend Appendix 2 to Annex 3 accordingly. The latest communicated version of Appendix 2 is the current and applicable Appendix 2.
The provider ensures the encryption of customer personal data AT REST and IN TRANSIT using encryption software provided by a third party, employing industry-standard encryption methods.
The decryption key shall be securely stored in a designated safe with one of the third parties providing the hosting/infrastructure as per Section 4.2.
The provider shall take all commercially reasonable measures in advance to ensure that customer data can be sorted out and made available to the customer in the event of insolvency proceedings being opened against the provider or its third-party providers. The provider shall further take all commercially reasonable measures in advance to ensure that customer data is excluded from realisation in insolvency proceedings.
For good reason, the customer may, upon request, verify the provider's compliance with its obligations concerning the processing of customer personal data, provided that the customer assumes the confidentiality obligations presented by the provider. Such an audit may be carried out at most once per year with at least 90 days' written notice. All costs incurred by the provider in connection with the customer's audit shall be borne by the customer.
The provider reserves the right to audit the customer at any time regarding compliance with this agreement, with reasonable prior notice.
The audits performed by one party must not unduly interfere with the business operations of the other party.
The provider warrants that the software, when used as intended, will in all material respects perform the functions described in the current version of the documentation and will not infringe the intellectual property rights of any third party.
The foregoing warranty shall not apply if:
The warranty is valid for the duration of this agreement and shall expire immediately upon the termination of this agreement becoming effective.
Unless expressly stated in Section 9.1, all services are provided AS IS, and all warranties, express or implied, of any kind, including but not limited to warranties of merchantability, fitness for a particular purpose, and achievement of a particular result, are disclaimed. The responsibility for the customer's use of the results generated by the Software lies solely with the customer.
A breach of warranty must be notified to the supplier in writing without delay.
The sole remedy available to the customer for a breach of warranty is that the vendor shall use commercially reasonable efforts to restore the non-infringing condition. All other statutory remedies are hereby expressly excluded.
Should the Provider, despite commercially reasonable efforts, be unable to restore the non-infringing state within 90 days, each party shall be entitled to terminate this Agreement upon written notice, effective immediately. The Provider may waive the 90-day restoration period if it becomes apparent that the Provider cannot restore the non-infringing state.
Each party shall be liable for direct damages suffered by the other party as a result of a breach of its obligations under this agreement.
The total annual liability of the Provider arising out of or in connection with this Agreement shall be limited to the lower of the following amounts: (i) 50% of the fees paid by the Customer to the Provider in the 3 months prior to the claim, or (ii) CHF 25,000.
The provider shall not be liable under any circumstances for:
The provider shall also not be liable if it is prevented from fulfilling its contractual obligations in a timely or proper manner for reasons beyond its control, in particular for reasons attributable to an act or omission of the customer or a third party, or an event of force majeure.
The provider shall indemnify the customer against third-party claims (including reasonable legal costs) asserting an infringement of third-party intellectual property rights, which arise solely from the customer's authorised use of the software. However, patent infringements shall be excluded from this indemnification.
The prerequisite for the foregoing indemnification is that the Customer (i) promptly notifies the Provider of such claims, (ii) grants the Provider sole control over legal actions and/or proceedings upon request, (iii) assists the Provider as requested and (iv) complies with all obligations under this Agreement.
The customer shall indemnify the provider against third-party claims (including reasonable legal costs) arising from the abusive use of the software, breach of this agreement, or other violations, legal infringements, non-compliances, or defaults caused by or attributable to the customer.
A party may receive confidential (i.e., non-public) information from the other party, directly or indirectly, in writing, orally, or by inspection. This includes business plans, training materials, technologies, business, operating, and manufacturing secrets, and protected software components («Confidential Information»). Confidential Information includes information, ideas, know-how, concepts, and procedures, particularly concerning data processing and process organisation, which are contained in or relate to the software.
The receiving party undertakes:
The confidentiality obligations under Section 12.2 do not apply to information that:
This agreement shall come into effect on the effective date and shall remain in force until terminated in accordance with the provisions of this agreement.
Either party may terminate this agreement at any time for any reason by giving six months' written notice.
Each party may terminate this Agreement in writing at any time without notice for good cause, provided that the other party fundamentally breaches this Agreement, unless the terminating party has notified the other party in writing of the breach, and the other party has not cured the breach within 60 days, if the breach can be cured. If a cure is not possible, no cure period shall apply.
Each party may terminate this agreement at any time for good cause by giving 30 days' written notice if a force majeure event prevents the other party from fulfilling its material obligations for a period exceeding 60 days.
Each party may terminate this agreement in writing with immediate effect at any time for good cause if the other party becomes insolvent (or is on the verge thereof), insolvency proceedings are opened against the other party, insolvency administration is appointed for the other party, or a court approves restructurings, settlements or similar measures of the other party.
Under the following circumstances, the provider may terminate this agreement at any time for good cause with immediate effect in writing (or block access to the software at its discretion with or without notice), with the customer bearing all costs associated with the termination or blocking:
If the customer terminates the agreement in breach of Section 13.2 or 13.3, the agreement shall be deemed to have been terminated accordingly, but the provider shall be entitled to charge the customer the subscription fee and all expenses that would have been incurred up to the next possible ordinary termination date in accordance with Section 13.2.
Following the termination of the agreement, the provider will support the customer in retrieving their customer data for a period of 30 days as follows: The customer can purchase a micro-PC from the provider at a reasonable price, on which the software is pre-installed and runs in a read-only mode (i.e. customer data can be copied and downloaded, but no new customer data can be entered or existing customer data modified). The associated expense incurred by the provider (in particular, setup work) will be invoiced to the customer at the provider's currently valid hourly rates.
Upon expiry of this period, customer data will be irretrievably deleted, unless their continued retention is prescribed by laws or regulations, or the customer data is part of normal operational back-ups, and can no longer be accessed by the customer.
It is the customer's responsibility to retrieve all customer data required for compliance with applicable laws or regulations within this period, and the customer shall indemnify the provider against all related claims and expenses.
Beyond this section 13.5, the provider shall not be obliged to support the customer after termination for any reason, unless otherwise agreed separately between the provider and the customer.
Upon termination of the agreement, the Customer's access to the Software and its rights to use the Software shall immediately cease (save for the right to retrieve Customer Data in accordance with Clause 13.5).
Upon termination of the agreement, the customer shall return or destroy all of the provider's confidential information, and upon the provider's request, confirm in writing that all such information has been returned or destroyed.
The termination of this Agreement: (i) shall not release either party from any liability or obligation incurred under this Agreement prior to the effective date of termination; (ii) shall not prevent either party from asserting any rights or remedies to which it is entitled in respect of any breach of this Agreement occurring prior to the effective date of termination, whether under this Agreement or by law; (iii) shall not prejudice either party in enforcing any obligation incurred under this Agreement prior to the effective date of termination or which survives termination by virtue of the provisions of this Agreement.
Notwithstanding any contrary provisions in this agreement, this and any other provision of this agreement that, by its nature, is reasonably intended to survive the termination of this agreement, or the continuation of which was intended (including Sections 9-12, 15, and 16), shall remain in effect even after the termination of this agreement.
All notices required or permitted under this agreement shall be in writing. If this agreement requires a written notice, it shall be in writing in accordance with the Swiss Code of Obligations.
Notices shall be deemed to have been duly given if (i) delivered personally, (ii) transmitted by electronic mail (and receipt is confirmed), (iii) delivered by a reputable courier service (and delivery is confirmed) or (iv) sent by registered mail (and delivery is confirmed), in each case to the addresses set out in Schedule 1 (or to such other addresses as a party may have notified to the other in accordance with this provision).
This agreement shall be governed by and construed in accordance with Swiss substantive law, to the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods.
For all disputes arising from or in connection with this agreement, the ordinary courts in Solothurn, Canton of Solothurn, Switzerland, shall have exclusive jurisdiction.
This Agreement and all other documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements between the parties.
Subject to the provisions below, any amendments to this agreement must be in writing and signed by duly authorised representatives of both parties.
The provider may amend Annex 2 on January 1st and July 1st of each calendar year with at least 60 days' notice. If the customer does not object in writing based on valid grounds within 30 days of notification, Annex 2, as amended, shall be deemed accepted and Annex 2 shall be replaced accordingly. In the event of an objection, the provider will review the customer's grounds and either propose an amendment acceptable to the customer or grant the customer an extraordinary right of termination on the effective date of the amendment. If the customer does not exercise their extraordinary right of termination, Annex 2, as amended, shall be deemed accepted and Annex 2 shall be replaced accordingly. An increase in subscription fees shall be governed by Section 5.1.
Changes to Annex 3 are governed by Section 7.1.
The failure to enforce a provision shall not constitute a waiver of the future enforcement of that or any other provision. A provision of this agreement may be waived only by a document signed by the party waiving that provision.
Should any provision of this Agreement (or part thereof) or its application be found to be unlawful, void or unenforceable, such provision (or relevant part) shall be deemed severable and shall not affect the lawfulness, validity or enforceability of the remainder of the provision or the remaining provisions of this Agreement or their application.
The unlawful, void or unenforceable provision (or the corresponding part) shall be replaced by a new or amended provision which is lawful, valid and enforceable and corresponds as closely as possible to the original economic intentions of the parties.
Without the prior written consent of the Provider, the Customer may not assign or transfer this Agreement or its rights and obligations hereunder, in whole or in part. The Provider may assign or transfer this Agreement and its rights and obligations hereunder, in whole or in part, to an affiliate of the Provider. Upon any permitted assignment or transfer, this Agreement or any such portion thereof shall be binding upon and inure to the benefit of the parties and their respective permitted assignees and successors. Any assignment or transfer in contravention of this Section 16.5 shall be void.
Neither party shall be liable for any delay or failure in performing its obligations under this Agreement due to an Event of Force Majeure. The party affected by an Event of Force Majeure shall promptly notify the other party of the occurrence of the Event of Force Majeure, take reasonable steps to mitigate the effects, and resume performance of its obligations as soon as reasonably practicable. For the avoidance of doubt, an Event of Force Majeure shall not relieve the Customer of its obligation to pay the Fees. However, the Customer’s subscription fee shall be reduced for the duration of the Event of Force Majeure if an Event of Force Majeure prevents access to the Software.
Unless expressly stated otherwise in this agreement, this agreement does not confer any rights on third parties.
No provision of this Agreement or its termination shall result in the transfer of an employment contract, employment relationship, collective bargaining agreement or liability concerning (i) employees of a party, its affiliates or its subcontractors («employees») or (ii) any other persons to the other party.
If an employee claims that as a result of the commencement, continuation or termination of services, their employment relationship or any obligation related to their employment relationship has transferred to the other party, the party to which the employee belongs shall indemnify the other party against all claims and expenses arising therefrom, including those resulting from a dismissal by that other party.
This Agreement does not create an employment or agency relationship, a joint venture, or a partnership between the parties, and the relationship between the parties is that of independent contractors. Each party shall be solely responsible for its obligations set forth in this Agreement. Neither party shall have the authority to act as an agent for the other party, nor shall either party enter into any contract, make any warranty or representation on behalf of the other party, without the express prior written consent of the other party. Neither party shall be bound by the other in any matter or make any promises, representations, or warranties on behalf of the other party, and neither party shall be bound by the acts or omissions of the other party unless it has expressly authorised it in writing in advance.
All claims arising out of or in connection with this Agreement may only be brought against the parties. No claims may be brought directly against persons who are not parties, including former, present or future officers, directors, employees, agents, shareholders, affiliates, representatives or agents of a party or its affiliates. Each party shall defend against all such claims against such persons by it.
