General Terms and Conditions ALCOLM AG Cloud Services – April 2020
By registering to use the ALCOLM Cloud Services from 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 conditions at any time. The changed conditions come into force with the publication on the website. ALCOLM will make all reasonable efforts to e-‐mail the changed conditions to the customer or to make the customer aware of them on the website.
I. Software as a Service (SaaS) Agreement
- ALCOLM provides its customers with SaaS services via the Internet in the field of business software.
- The subject of the contract is:
- the provision of ALCOLM software for use via the Internet and
- the storage of customer data (data hosting)
II. Software Licensing
- For the duration of this contract, ALCOLM provides the customer with the software solution "Alcolm Business Software" in the current version via the Internet for use against payment. For this purpose, ALCOLM operates the software on a server that can be accessed by the customer via the Internet.
- ALCOLM is constantly developing the software and will improve it through ongoing updates and upgrades.
- ALCOLM continuously monitors the functionality of the software and eliminates software errors according to the technical possibilities. An error is present in particular if the software does not fulfill the functions specified in the service description, delivers incorrect results or does not work properly in any other way, so that the use of the software is impossible or significantly restricted.
III. Rights to Use the Software
- ALCOLM grants the customer the non-‐exclusive and non-‐transferrable right to use the “Alcolm Business Software” software as intended for the duration of the contract as part of the SaaS services.
- The customer may neither reproduce nor edit the software. In particular, even temporary installation or storage of the software on data carriers (hard disks or similar) of the hardware used by the customer (with the exception of main memory) is prohibited.
- The customer is not entitled to make this software available to third parties for use against payment or free of charge. Any form of making the software available to third parties is expressly prohibited for the customer.
- The customer undertakes to structure any contractual relationships with third parties in such a way that free use of the software by third parties is excluded.
- ALCOLM provides the customer with an interface (API) for communication with third-party software. Irrespective of any assurances to the contrary, ALCOLM has the right to partially or fully restrict access to this interface at any time for good cause.
IV. Data Hosting
- ALCOLM gives the customer a defined storage space on a server to store his data. If the storage space is not sufficient to store the data, the provider will inform the customer in good time. If the customer does not then order additional storage space for a fee, data that exceeds the available storage space will no longer be stored.
- ALCOLM ensures that the stored data can be accessed via the Internet within the scope of technical possibilities.
- The customer is not entitled to allow a third party to use this storage space in whole or in part, for a fee or free of charge.
- The customer undertakes not to store any content on the storage space whose provision, publication and use violates applicable law or agreements with third parties.
- ALCOLM is obliged 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. For this purpose, ALCOLM will make regular backups, check the customer's data for viruses and install firewalls.
- In any case, the customer remains the sole authorized user of the data and can therefore demand that ALCOLM hand over individual or all data during the term of the contract, without ALCOLM having a right of retention. The data is released at the customer's choice either by handing over data carriers or by sending it via a data network. The customer is not entitled to the software suitable for the use of the data.
- After termination of the contract, the customer is still entitled to request the surrender of his data for one month (from the date of termination) under the provisions of Section 6 above. ALCOLM is not obliged to store customer data beyond this period. If a customer requests the release of data after the one-month period has expired and ALCOLM still has the data, ALCOLM will release the data to the customer after payment of the costs actually incurred for this.
V. Support & Customer Service
- ALCOLM will process customer inquiries (by e-mail or telephone) regarding the "Alcolm Business Software" software and other SaaS services within the deadlines specified in the support contract. Customers who do not have an ongoing support contract are not entitled to technical support.
VI. impairment of accessibility
- Adaptations, changes and additions to the contractual SaaS services as well as measures that serve to identify and rectify malfunctions will only lead to a temporary interruption or impairment of availability if this is necessary for technical reasons.
- The basic functions of the SaaS services are monitored on a daily basis. The maintenance of the SaaS services takes place from Monday to Friday 08:00 - 19:00. In the case of serious errors in which the use of the SaaS services is no longer possible or is significantly restricted, maintenance is usually carried out within 2 hours of the customer becoming aware of it or notifying it. The provider will inform the customer about the maintenance work in good time and carry it out as quickly as possible.
- The availability of the individual SaaS service is 99.5% on an annual average.
VII. Customer Obligations
- The customer is obliged to prevent unauthorized third party access to the software by taking suitable precautions. For this purpose, the customer will, if necessary, inform his employees about compliance with copyright law. In particular, the customer will instruct its employees not to make any copies of the software or to pass on access data to third parties.
- The customer is responsible for entering and maintaining the data and information required to use the SaaS services, notwithstanding ALCOLM's obligation to back up data.
- 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.
- The customer is obliged to keep the "User ID" and password secret and not to make them accessible to third parties.
- The customer must inform ALCOLM immediately of any unauthorized use of "User ID" and password or other attacks on security. In such cases, ALCOLM will, in agreement with the customer, change the customer's "User ID" and password.
- The customer must take all measures that ALCOLM deems necessary to maintain or improve the security of the data, the software and the network connections. For example, the user undertakes to change the password regularly, but at least every sixty (60) days.
- The customer undertakes to pay ALCOLM the agreed fee plus statutory VAT for the software transfer and data hosting.
- ALCOLM will send the customer an invoice for the contractually owed payment.
- ALCOLM is entitled to adjust the fees and service content 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 the further development of the software. If the customer does not want to continue the contract at the changed tariffs, he is entitled to extraordinary termination with a notice period of 14 days at the time of the change.
- ALCOLM guarantees the functionality and operational readiness of the SaaS services in accordance with the provisions of these GTC.
- The customer undertakes to indemnify ALCOLM against all third-party claims based on the data stored by him and to reimburse ALCOLM for all costs incurred due to possible legal violations.
- ALCOLM is 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. There is a justified suspicion of illegality and/or a violation of the law if courts, authorities and/or other third parties inform the provider of this. The provider has to inform the customer of the distance and the reason for it immediately. The ban must be lifted as soon as the suspicion has been completely refuted.
- Within the framework of the statutory provisions, ALCOLM excludes any liability towards the customer (or any third party), in particular for the fulfillment of its contractual and non-contractual obligations and for the loss of data and loss of profit (including for negligence). This exclusion of liability also applies to damage that occurs directly or indirectly through the use of the "Alcolm Planner" software. In all cases, regardless of the basis of liability, the mutual liability of the contracting parties is limited to the amount of the monthly access fees in the last twelve months before the damage occurred.
- The contractual relationship begins with the signing of the contract by the customer. Customers are currently able to choose between monthly and annual subscriptions. In addition, there is the purchase option which provides for a one-time payment and maintenance costs.
- Monthly subscriptions are concluded for an indefinite period and can be canceled by either party at the end of the month, subject to one month's notice.
- Annual subscriptions are concluded for a period of one year. If the customer does not cancel at least 90 days before the end of the one-year period, the subscription is automatically extended by a further year. The annual subscription is billed annually in advance.
- With the purchase option, the customer undertakes to pay annual maintenance in the amount of 18% of the total license costs.
- Form of termination: The termination must be in writing. Following the cancellation, ALCOLM will send a confirmation email to the customer. Once this confirmation has been received, the customer account will be terminated after the notice period has expired.
- The parties are free to terminate the contract immediately for important reasons. An important reason for the immediate termination of this contract exists for ALCOLM in particular if
- if the customer goes bankrupt or the opening of bankruptcy proceedings has been suspended due to a lack of assets;
- if the customer is in arrears with payment obligations from this contractual relationship to the extent of at least one monthly fee and he has been unsuccessfully reminded of a grace period of two weeks and threatened to terminate the contract;
- if the customer culpably violates legal regulations when using the contractual services or encroaches on copyrights, industrial property rights or third-party naming rights;
- if the customer uses the distributed services for the purpose of promoting criminal, illegal and ethically questionable activities.
- ALCOLM undertakes to maintain secrecy about all confidential transactions, in particular business or trade secrets of the customer, which it has become aware of in the course of the preparation, implementation and fulfillment of this contract and not to pass this information on to external third parties without the authorization of the customer. This applies to any unauthorized third party, provided that the disclosure of information is not necessary for the proper fulfillment of ALCOLM's contractual obligations.
- ALCOLM is entitled to publicly name the customer – subject to their written objection – as a reference and to use general information about the agreed contract in a suitable manner for marketing and sales purposes.
- ALCOLM is authorized to store and evaluate user data for operational purposes (in particular market research) within the framework of the statutory provisions. The customer hereby expressly agrees to this.
XII. intellectual property rights
- All intellectual property rights to the services, the "Alcolm Business Software" software, the website and the documentation relating to the services remain the property of ALCOLM AG.
- Unless a stricter form is required by this Agreement or by law, all notices shall be given to ALCOLM in writing. The transmission via e-mail satisfies the written form requirement. Messages from ALCOLM to the e-mail address provided by the customer when signing the contract are always considered written messages.
- The contracting parties are obliged to inform the other contracting party of any changes of address (including e-mail) immediately;
XIV. Severability Clause
- In the event of the total or partial ineffectiveness of individual clauses of the present agreement, any ineffective provisions are to be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued with the ineffective provision is achieved. The same applies in the event that there are any loopholes in this agreement.
XV. Jurisdiction & Choice of Law
- With regard to all legal relationships arising from this contractual relationship, the parties agree on the application of the law of the Swiss Confederation to the exclusion of the regulations of private international law (IPR) and the uniform UN sales law (CiSG).
- Zurich is agreed as the exclusive place of jurisdiction for all disputes that arise within the framework of the execution of this contractual relationship.
Zurich, April 13, 2020
Alcolm Business Software is a cloud service that: