General Terms and Conditions of Comitas AG

1. Software usage

1.1 Subject

1.1.1. The LICENSOR grants the LICENSEE the right to use the contractually agreed licensed products in accordance with the provisions of these General Terms and Conditions (GTC).

1.1.2 The terms "Software" and "Licensed Products" refer to all products, services, and other materials provided or to be provided to the LICENSEE by the LICENSOR or at the LICENSOR's instigation, including names, trademarks, documentation, software, manuals, instructions, other know-how, etc. It is clarified that, in particular, all other products, materials, etc., provided or to be provided to the LICENSEE during the term of the agreement automatically form or become part of the Licensed Products.

1.2. Licensee's Right of Use

1.2.1. The right of use is understood as a simple, non-exclusive and non-transferable license, with use at the contractually agreed location, on the computer system(s) of the LICENSEE between the partners.

1.2.2. The licensed products, including documentation, etc., constitute trade secrets and are protected by copyright. They may only be used on the systems agreed upon between the partners. The software may only be copied with the inclusion of all copyright and proprietary notices and only for use on the LICENSEE's computer system. The use of the licensed products by companies affiliated with or cooperating with the LICENSEE, partner companies, etc., requires the LICENSOR's prior written consent in every case.

1.2.3. The software may not be distributed, copied, translated, disassembled, decompiled, reverse engineered, combined or merged with other software, adapted, modified, or altered. All manuals and documentation are the property of the LICENSOR and may not be distributed, copied in any way, converted into any electronic form, translated, or otherwise reproduced, in whole or in part.

1.2.4. If a limited-term license has been agreed upon, the LICENSEE may no longer use the licensed products or any directly or indirectly related items and rights upon termination of the contract. The LICENSEE must return all products to the LICENSOR without being requested to do so no later than the last day of the contract term. Furthermore, the LICENSEE guarantees that all software copies and installations will be deactivated and deleted no later than the last day of the contract term.

1.2.5. The software and licensed products may under no circumstances be installed outside the territory of the country in which the location agreed upon in this contract (1.2.1) is situated. Multiple installations are prohibited.

1.3. Warranty obligations of the LICENSOR

1.3.1. The LICENSOR guarantees the functionality of the LICENSED PRODUCTS in accordance with the current manuals and technical specifications of the LICENSOR, provided that the software is professionally installed, taking into account the technical specifications and instructions of the LICENSOR, and excluding any claim to further features and services.

1.3.2 The LICENSOR undertakes, at the LICENSOR's discretion, to rectify any software errors that occur at the LICENSEE's premises, provided they are reported without delay and are reproducibly documented, or to provide the LICENSEE with measures to circumvent or bridge such errors. A software error exists if the software, when professionally installed and used in accordance with the contract, fails to provide the agreed services or provides them only to a significantly reduced extent, taking into account the current manuals and technical specifications of the LICENSOR, and excluding any claims to further features and services.

1.3.3. The warranty period is 30 days. It begins with the delivery of the software and is not extended as a result of services provided by the LICENSOR under the warranty.

1.3.4. Any further claims by the LICENSEE are excluded, including liability for direct, indirect, incidental, consequential or incidental damages, lost data or programs, etc.

1.3.5. If the reason for the reported error or other problems does not lie with the LICENSOR or its products, the expenses incurred by the LICENSOR and the services provided for troubleshooting and rectification shall be charged to the LICENSEE, in accordance with the applicable LICENSOR tariffs.

2. Software maintenance

2.1. Subject matter and definitions; commencement, duration and termination of maintenance

2.1.1. The LICENSOR shall support the LICENSEE with the contractually agreed support and update services, in accordance with the provisions of the SOFTWARE USAGE AND MAINTENANCE AGREEMENT, at the contractually agreed location.

2.1.2. The terms “software” and “products” refer to the entirety of the software products provided or to be provided to the LICENSEE by the LICENSOR or at the LICENSOR’s instigation.

2.1.3. All services provided to the LICENSEE and all products made available or to be made available to him are subject to the ownership and protection provisions described in the License section. The same applies to the rules regarding termination of the contract.

2.1.4 Unless otherwise agreed in writing, the maintenance agreement begins on the date of delivery of the software, with a fixed maintenance period of 12 months. The contractual relationship is automatically renewed for a further period of 12 months unless it is terminated in writing with 90 days' notice prior to the start of a new maintenance period.

2.2. Maintenance, support and update rights of the LICENSEE

2.2.1. THE LICENSOR assumes responsibility for the maintenance of the software described in the contract.

2.2.2. The LICENSEE is not entitled to request the latest version of the software and the latest changes to existing versions from the LICENSOR free of charge. Special conditions apply in this regard, for which the LICENSEE with an active maintenance agreement receives a 50% discount. The LICENSEE with a "Full Service Agreement" has the right to request the latest version of the software and the latest changes to existing versions from the LICENSOR free of charge during an ongoing maintenance period.

2.2.3. The LICENSOR supports the LICENSEE with relevant information.

2.2.4. The LICENSOR will provide telephone support to the LICENSEE for any software problems that may arise, provided that these are described precisely by the LICENSEE in accordance with the LICENSOR's handling procedures.

2.2.5. The LICENSOR undertakes, at its discretion, to rectify any software errors that occur at the LICENSEE's premises, provided they are reported without delay and are reproducibly documented, during the contractual support period, or to provide the LICENSEE with measures to circumvent or bridge such errors. A software error exists if the software, when professionally installed and used in accordance with the contract, fails to provide the agreed services or provides them only to a significantly reduced extent, taking into account the current manuals and technical specifications of the LICENSOR and excluding any claim to further features and services.

2.2.6. The LICENSOR will also offer the LICENSEE the current services according to the applicable tariffs. The LICENSOR will inform and keep the LICENSEE up-to-date about the current offerings and the development of the services.

2.3. Warranty obligations of the LICENSOR

2.3.1. The LICENSOR's performance obligations are related to, or limited to, the software versions officially supported by the LICENSOR.

2.3.2. If the LICENSOR fails to provide the contractually agreed services despite two written warnings with a reasonable deadline, the LICENSEE is entitled to terminate the maintenance agreement without notice. Maintenance fees will be calculated pro rata, effective from the date of valid termination.

2.3.3. If the reason for the reported error or other problems does not lie with the LICENSOR or its products, the expenses incurred by the LICENSOR and the services provided for troubleshooting and rectification shall be charged to the LICENSEE, in accordance with the applicable LICENSOR tariffs.

3. SaaS solutions

Access to the online products/SaaS solutions is password-protected via the internet. The customer is obligated to keep their login credentials and password confidential and to protect them from misuse by third parties. In this context, we would like to point out that our employees are not authorized to request passwords by telephone or in writing. When choosing a password, generally accepted rules should be observed (length, complexity of the password). The customer must inform us immediately in the event of loss of login credentials or password, or in the event of suspected misuse of this data. Furthermore, we are entitled to block access to the online products/SaaS solutions in the event of misuse. The customer is liable for any misuse attributable to them.

4. General rules and final provisions

4.1. Liability

4.1.1. The LICENSOR's liability is in any case limited to proven damages to the LICENSEE caused intentionally or through gross negligence by the LICENSOR.

4.1.2 To the extent permitted by law, the LICENSOR excludes all liability for any direct and indirect damages (production and service downtime, data corruption and data loss, loss of income and lost profits, etc.).

4.2. Products

4.2.1. The LICENSEE acknowledges that all products distributed by the LICENSOR remain the property of Comitas AG, Wiesenstrasse 10A, CH-8952 Schlieren.

4.2.2. All performance obligations of the LICENSOR are related to or limited to the software versions officially supported by the LICENSOR.

4.3. Contractual partner

4.3.1. Insofar as several partners participate on the side of the LICENSEE or under the designation LICENSEE, there is joint and several liability between them with regard to the agreed obligations insofar as they are incumbent upon the LICENSEE / LICENSEE in accordance with Art. 143 et seq. of the Swiss Code of Obligations.

4.3.2. Any transfer, in whole or in part, of rights or obligations by the LICENSEE to third parties requires the prior written consent of the LICENSOR.

4.3.3. The LICENSOR may at any time transfer its contractual position, in whole or in part, to other legal or natural persons.

4.4. Annexes, contract priority, amendments, notices, partial invalidity

4.4.1. The General Terms and Conditions of Comitas AG, Wiesenstrasse 10A, CH-8952 Schlieren, as well as any appendices, form an integral part of the contract. The term "contract" is understood in this comprehensive sense.

3.4.2. Amendments or supplements to this agreement must be in writing to be valid. The LICENSEE's terms and conditions apply only with the express written consent of the LICENSOR.

4.4.3. Fax transmissions are recognized as legally valid, provided that receipt is confirmed in writing by the recipient.

4.4.4. Partial Invalidity: Should one or more provisions of this Agreement be or become wholly or partially invalid, ineffective, or otherwise unenforceable for any reason, the validity of the Agreement as a whole shall not be affected. In the event that the agreed procedure cannot be implemented in individual points or can only be implemented partially, or that ambiguities or gaps arise, the parties shall agree on a solution that achieves the same or as similar an economic result as possible.

4.5. Breach of contract, impossibility

4.5.1. A breach of contractual provisions by the LICENSEE, in particular an infringement of proprietary and intellectual property rights, entitles the LICENSOR to terminate the contract without notice. The right to claim damages remains reserved.

4.5.2. The LICENSOR's performance obligations are subject to the fulfillment of the contract, or delivery, by its contractual partner.

4.6. Remuneration, terms of payment, interest

4.6.1. Prices: All prices are net prices, excluding VAT. Maintenance fees are governed by the maintenance agreement. Maintenance fees may be changed no earlier than 12 months after the conclusion of the contract or after the last increase. The change will take effect no earlier than 30 days after written notification. Changes to maintenance fees must be reported no later than 30 days before a new maintenance period. The change may not exceed the increase according to the BIGA index.

4.6.2. Due date: All invoices are due 10 days from the date of invoicing, unless the invoices contain different terms.

4.6.3. Payment Default: In the event of payment default, the LICENSOR shall pay default interest of 1.5% per month from the due date without prior notice. Payment default entitles the LICENSOR to terminate the contract without notice in accordance with clause 4.5.1. In such a case, the LICENSEE is obligated to immediately return all software and documentation (unopened), as well as all product codes and related literature, to the LICENSOR.

4.6.4. Ownership: All software and licensed products delivered to the LICENSEE remain the property of the LICENSOR until full payment has been received.

4.6.5. The offsetting of claims of the LICENSEE against credits or claims of the LICENSOR is excluded in all cases, both during the term of the contract and upon termination of the contract.

4.6.6. Taxes, Expenses: Taxes, duties, fees, insurance, distribution costs, expenses, outlays, etc., associated with this contractual relationship shall be borne by the party in which they are incurred or to which they are legally required to be passed.

4.7. Cooperation, enforcement work, instruction of employees

4.7.1. The LICENSEE shall designate one or more contact persons employed by him who are responsible for the contractual processing.

4.7.2. The LICENSEE shall ensure that the employees involved are instructed appropriately and in a timely manner and shall issue the necessary instructions.

4.8. Third party

We offer collaborations with external partners. The customer concludes direct (license) agreements with these partners. The customer can find information about the possibilities for integrating third-party applications and partnerships on our website. partner siten inform.

5. confidentiality

The contracting parties are obligated to treat confidentially all information made available to them by the other party under this agreement, as well as any knowledge they acquire in the course of this cooperation concerning matters of a technical, commercial, or organizational nature relating to the other party. They are prohibited from using, exploiting, or disclosing such information to third parties during the term of this agreement and after its termination without the prior written consent of the other party. Disclosure to third parties subject to a legal obligation of confidentiality does not require consent. Disclosure to employees who require the information for their work in performing the services covered by this agreement also does not require consent. However, the parties shall ensure that such employees are bound by appropriate confidentiality obligations. Use of this information is limited solely to the performance of this agreement. Each party shall inform the other party immediately upon becoming aware of any unauthorized disclosure or potential loss of confidential information.

6. Changes to these terms and conditions

The validity of any conflicting or deviating terms and conditions is excluded, even if we do not expressly object to them or accept services without reservation. We reserve the right to amend these terms and conditions in accordance with the following provisions, provided that such amendment is reasonable for you, taking our interests into account. This is particularly the case if the amendment does not result in any significant legal or economic disadvantages for you, for example, changes to the registration process or changes to contact information. Furthermore, we will inform you of any changes to these terms and conditions with reasonable notice, but at least one month before the intended effective date. This information will be sent to the email address you provided. If you do not agree to an amendment we intend to make, you have the right to object to it within one month of receiving notification.

7. Applicable law, place of performance, place of jurisdiction

7.1. All legal relations between the parties are governed exclusively by Swiss law, including procedural and enforcement law. The applicability of the CISG is excluded.

7.2. The place of performance is in any case and for both parties the registered office of the licensor.

7.3. All disputes arising from or in connection with this contract shall be decided exclusively by the Commercial Court of the Canton of Zurich, provided that subject-matter jurisdiction and the prescribed value in dispute exist; otherwise, by the District Court of Zurich. However, the LICENSOR's right to sue the LICENSEE at their respective place of residence or registered office remains reserved in all cases.

Version September 2020