General Terms and Conditions ALCOLM AG Cloud Services – April 2020

By registering to use the ALCOLM Cloud Services of Alcolm AG (ALCOLM), the customer (“Customer”) unconditionally submits to the following General Terms and Conditions (“General Terms and Conditions” or “GTC”). ALCOLM reserves the right to change these terms and conditions at any time. The amended terms and conditions shall enter into force upon publication on the website. ALCOLM shall make all necessary efforts to send the Customer the amended Terms and Conditions by e-mail or to notify the Customer thereof on the Website.

I. Software as a Service (SaaS) – Contract

  1. ALCOLM provides its customers with SaaS services via the Internet in the field of business software.
  2. Subject of the contract:
    • the provision of ALCOLM software for use via the Internet, and
    • the storage of the customer’s data (data–hosting)

II. software transfer

  1. ALCOLM shall provide the customer with the software solution “Alcolm Business Software” in the respective current version via the Internet for use against payment for the duration of this agreement. For this purpose, ALCOLM runs the software on a server that is accessible to the customer via the Internet.
  2. ALCOLM is continuously developing the software and will improve it through ongoing updates and upgrades.
  3. ALCOLM continuously monitors the functionality of the software and eliminates software errors to the extent technically possible. An error exists in particular if the software does not fulfill the functions specified in the performance description, delivers incorrect results or does not function properly in any other way, so that the use of the software is impossible or considerably restricted.

III. Rights of use to the software

  1. ALCOLM grants the customer the non-exclusive and non-transferable right to use the software “Alcolm Business Software” for the duration of the agreement within the scope of the SaaS services as intended.
  2. The customer may neither duplicate nor edit the software. In particular, it is prohibited to install the software, even temporarily, or to store it on data carriers (hard disks or similar) of the hardware used by the customer (with the exception of main memory).
  3. The customer is not entitled to make this software available to third parties for use, either for a fee or free of charge. The customer is expressly prohibited from making the software available to third parties in any form.
  4. The customer undertakes to structure any contractual relationships with third parties in such a way that any gratuitous use of the software by third parties is excluded.
  5. ALCOLM provides the customer with an interface (API) for communication with third-party software. Notwithstanding any assurances to the contrary, ALCOLM shall in any case have the right to partially or completely restrict access to this interface at any time for good cause.

IV. Data Hosting

  1. ALCOLM provides the customer with a defined storage space on a server for storing his data. If the storage space is not sufficient to store the data, the Provider will inform the Customer in due time. Unless the customer subsequently orders further storage space against payment, data exceeding the available storage space will no longer be stored.
  2. ALCOLM shall ensure that the stored data can be accessed via the Internet within the scope of technical possibilities.
  3. The customer is not entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge.
  4. The customer undertakes not to store any content on the storage space whose provision, publication and use violate applicable law or agreements with third parties.
  5. ALCOLM is obligated to take appropriate and reasonable precautions against data loss and to prevent unauthorized access by third parties to the customer’s data within the scope of technical possibilities. To this end, ALCOLM shall make regular backups, check the customer’s data for viruses and install firewalls.
  6. In any case, the customer shall remain the sole owner of the data and may therefore demand that ALCOLM surrender individual or all data during the term of the agreement, without any right of retention on the part of ALCOLM. The data shall be surrendered at the customer’s discretion either by handing over data carriers or by sending them via a data network. The customer is not entitled to the software suitable for the use/application of the data.
  7. After termination of the contract, the customer is still entitled for one month (from the date of termination) to demand the release of his data under the provisions of para. 6 above to demand. ALCOLM shall not be obligated to store customer data beyond this period. Should a customer request the surrender of data after the expiry of the one-month period and should such data still be available at ALCOLM, ALCOLM shall surrender the data to the customer after payment of the costs actually incurred for this purpose.

V. Support & Customer Service

  1. ALCOLM shall process requests (by e-mail or telephone) from the Customer regarding the “Alcolm Business Software” and other SaaS services within the deadlines specified in the Support Agreement. Customers who do not have a current support contract are not entitled to technical support.

VI. impairment of accessibility

  1. Adjustments, changes and additions to the contractual SaaS services as well as measures serving to determine and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is required for technical reasons.
  2. Monitoring of the basic functions of the SaaS services is performed on a daily basis. Maintenance of SaaS services is generally performed from Monday to Friday 08:00 – 19:00. In case of serious errors, where the use of SaaS services is no longer possible or significantly restricted, maintenance is usually performed within 2 hours of knowledge or notification by the customer. The Provider shall notify the Customer about the maintenance work in due time and perform it as soon as possible.
  3. The availability of the individual SaaS service is 99.5% on an annual average.

VII Obligations of the customer

  1. The customer is obliged to prevent unauthorized access to the software by third parties by taking appropriate precautions. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law. In particular, the customer shall instruct its employees not to make any copies of the software or to pass on access data to third parties.
  2. The customer itself shall be responsible for entering and maintaining its data and information required to use the SaaS services, without prejudice to ALCOLM’s obligation to back up data.
  3. The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
  4. The customer is obliged to keep “User ID” and password secret and not to make them accessible to third parties.
  5. Customer shall immediately notify ALCOLM of any unauthorized use of “User ID” and password or any other attacks on security. In such cases, ALCOLM shall change the customer’s “User ID” and password in agreement with the customer.
  6. The customer shall take all measures that ALCOLM deems necessary to maintain or improve the security of the data, software and network connections. For example, the user undertakes to change the password regularly, but at least every sixty (60) days.

VIII Remuneration

  1. The customer undertakes to pay ALCOLM the agreed fee for the provision of software and data hosting in accordance with the customer’s subscription plus VAT. VAT at the statutory rate.
  2. ALCOLM shall send the customer a statement of the fee owed under the contract.
  3. ALCOLM shall be entitled to adjust the fees and service contents by notifying the customer in writing as of the next possible termination date. Reasons for such a change in performance are in particular technical progress and further development of the software. If the customer does not wish to continue the contract at the changed rates, he is entitled to extraordinary termination with a notice period of 14 days to the date of the change.

IX. Warranty/Liability

  1. ALCOLM warrants the functionality and operational readiness of the SaaS Services in accordance with the provisions of these GTC.
  2. The customer undertakes to indemnify ALCOLM against all claims of third parties based on the data stored by him and to reimburse ALCOLM for all costs incurred by the latter due to possible infringements of rights.
  3. ALCOLM shall be entitled to immediately block the storage space if there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. The Provider shall immediately notify the Customer of the removal and the reason for it. The suspension shall be lifted as soon as the suspicion has been fully rebutted.
  4. To the extent permitted by law, ALCOLM excludes any liability to the customer (or any third party) in particular for the performance of its contractual and non-contractual obligations and for loss of data and loss of profit (including for negligence). This disclaimer also applies to the damage caused directly or indirectly by the use of the software “Alcolm Planner”. In all cases, regardless of the basis of liability, the mutual liability of the contracting parties shall be limited to the amount of the monthly access fees in the last twelve months before the damage occurred.

X. Term / Termination / Dissolution

  1. The contractual relationship begins with the signing of the contract by the customer. Currently, customers are free to choose between monthly and annual subscriptions. In addition, there is the purchase option which provides for a one-time payment and maintenance costs.
  2. Monthly subscriptions are concluded for an indefinite period of time and can be terminated by either party at the end of a month by giving one month’s notice.
  3. Annual subscriptions are concluded for the period of one year. Unless the customer cancels the subscription at least 90 days before the end of the one-year period, the subscription will be automatically extended for another year. The annual subscription is invoiced annually in advance.
  4. In case of the purchase option, the customer commits to pay the maintenance in the amount of 18% of the total license cost annually.
  5. Form of termination: The notice of termination must be in writing. Following the cancellation, ALCOLM sends a confirmation email to the customer. Once this confirmation is received, the customer account will be terminated after the cancellation period.
  6. The parties are free to terminate the contract immediately for good cause. An important reason for the immediate termination of this contract exists for ALCOLM in particular,
    • if the customer falls into bankruptcy or the bankruptcy proceedings have been discontinued for lack of assets;
    • if the customer is in default with payment obligations arising from this contractual relationship to the extent of at least one month’s fees and has been reminded unsuccessfully by setting a grace period of two weeks and threatening to terminate the contract;
    • if the customer culpably violates legal regulations or interferes with copyrights, industrial property rights or name rights of third parties when using the contractual services;
    • in case of use of the Distributed Services for the purpose of promotion of criminal, unlawful and ethically questionable actions by the Customer.

XI. Data protection/secrecy

  1. ALCOLM undertakes to maintain secrecy with regard to all confidential processes, in particular business or trade secrets of the customer, which come to its knowledge in the course of the preparation, execution and performance of this contract, and not to disclose such information to outside third parties without the customer’s authorization. This applies to any unauthorized third parties, unless the disclosure of information is necessary for the proper performance of ALCOLM’s contractual obligations.
  2. ALCOLM shall be entitled to publicly name the customer as a reference – subject to the customer’s written objection – and to use general information about the agreed contract in a suitable manner for marketing and sales purposes.
  3. ALCOLM is authorized, within the scope of legal provisions, to store and evaluate user data for operational purposes (esp. market research). The customer hereby expressly agrees to this.

XII. Intellectual property rights

  1. All intellectual property rights to the Services, the “Alcolm Business Software”, the Website and the documentation relating to the Services shall remain the property of ALCOLM AG.

XIII Communications

  1. All notices shall be given in writing to ALCOLM, unless a stricter form is mandatorily provided for in this Agreement or by law. The transmission via e-mail satisfies the written form requirement in each case. Notifications sent by ALCOLM to the e-mail address provided by the customer when signing the contract shall in any case be deemed to be written notifications.
  2. The contracting parties shall be obliged to notify the other contracting party of any changes of address (including e-mail) without delay, failing which notifications shall be deemed to have been received with legal effect at the address last notified in writing.

XIV Severability Clause

  1. In the event that individual clauses of this Agreement are wholly or partially invalid, any invalid provisions shall be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued by the invalid provision is achieved. The same applies in the event that there are any gaps in this agreement.

XV. Jurisdiction & Choice of Law

  1. With regard to all legal relationships arising from this contractual relationship, the parties agree that the law of the Swiss Confederation shall apply, to the exclusion of the provisions of international private law (IPR) and the Uniform UN Sales Law (CiSG).
  2. Zurich is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the execution of this contractual relationship.

Zurich, April 13, 2020

Alcolm Business Software is a cloud service that:

Hohlstrasse 489
8048 Zurich