Intellyse SaaS Terms and Conditions

1. Services

1.1 General

1.1.1 The Provider operates a software (hereinafter “Software”) and an application (hereinafter “App” and together with the Software the “Product”) as described in the Order Form and in connection therewith provides to the Client certain Software-as-a-Service services (hereinafter “SaaS-Services”) as specified in the Order Form and in these ISTC.

1.1.2 As part of its SaaS-Services, the Provider:

1. sets up its Product as specified in Annex 1;
2. operates the Product and provides the support services according to the Service Level Agreements (“SLA”) in Annex 2 and Annex 3 (“Maintenance, Support and Storage Agreements”) (hereinafter the “Support Services”);
3. grants the Client access to the Software to use the Product and to receive the Support Services.

1.1.3 The SaaS-Services are subject to these ISTC and to the timely payment of the fees set forth in the Order Form (hereinafter the “Fees”) by the Client.

1.2 Support Services and Upgrades

1.2.1 During the Term (as defined below in Section 10 of the ISTC) the Provider will provide the Support Services to the Client and may apply Upgrades (as defined below in Section 5 of Annex 3) to the Product, in accordance with the SLA set out in Annex 2 and the Maintenance, Support and Storage Agreements outlined in Annex 3.

2. Client Rights and Obligations

2.1 Use of Services by Client

2.1.1 Subject to the Client's compliance with the Agreement and to the Client paying the Fees, the Provider grants to the Client a worldwide, non-exclusive, non-transferable, and limited licence to use the Product for the purposes specified in the Order Form (hereinafter the “Permitted Purpose of Use”) during the Term of the Agreement.

2.1.2 The use of the Product by the Client shall be subject to the following licensing provisions:

1. the Client may only use the Product for the Permitted Purpose of Use;
2. the Client must not and agrees not to:
   1. copy or reproduce the Product or any part of it other than in accordance with the licence granted in the Order Form and/or these ISTC;
   2. sell, sub-license, resell, rent, lease, loan, supply, distribute, redistribute, publish or re-publish the Product or any part of it;
   3. modify, alter, adapt, translate or edit, or create derivative works of the Product or any part of it;
   4. reverse engineer, decompile, disassemble the Product or any part of it (except as mandated by applicable law);
   5. use the Product other than in accordance with the Provider's instructions;
   6. use the Product in any way that is unlawful, illegal, fraudulent or harmful or use it in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
   7. use the Product in any way that causes, or may cause, damage to the Product or impairment of the availability or accessibility of it;
   8. circumvent or remove or attempt to circumvent or remove the technological measures applied to the Product for the purposes of preventing unauthorised use.
3. the Product may only be used by the employees, agents and sub-contractors of the Client;
4. the Client must not and agrees not to sub-license its right to access and use the Product or allow any unauthorised person to access or use the Product.

2.1.3 For the avoidance of doubt, the Client has no right to access the source code of the Product directly or indirectly, either during or after the Term.

2.1.4 The Client shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Product using the Client's account.

2.1.5 It is the Client's responsibility to ensure and comply with internal policies, union contracts as well as legal requirements of the respective countries regarding the privacy protection of individual employees.

2.1.6 The Client agrees to ensure that access to the Product is strictly restricted to persons authorised to use it.

3. Fees

3.1 The Client agrees to pay the Fees as set forth in the Order Form via wire/bank transfer.

4. Intellectual Property

All intellectual property rights pertaining to the SaaS-Services and the Product shall, as between the Parties, be the exclusive property of the Provider. This includes intellectual property rights in Customisations.

5. Data Ownership

5.1 The Client is the owner of the data and contents it processes via the Product.

5.2 The Client acknowledges that any data models and algorithms generated by the Provider based on the use of the SaaS-Service by the Client and on Client Data are the sole property of the Provider and that the Provider can use the anonymized data of the Clients at its free discretion for any purposes.

6. Warranties

6.1 The Client warrants to the Provider that:

1. it has the legal right and authority to enter into and perform its obligations under the Agreement;
2. it will use the SaaS-Services and the Product strictly in compliance with any law and the conditions set forth in the Agreement.

6.2 The Provider warrants to the Client that:

3. it has the legal right and authority to enter into and perform its obligations under the Agreement;
4. the Software will be accessible by and available to Client and their users, and will operate in accordance with, and conform to, this Agreement, the service levels set forth on Annex 2 and Annex 3, applicable Order Forms, and the Documentation.

6.3 The Provider does not warrant that the software will be uninterrupted, error-free, or free from security vulnerabilities, nor does it make any warranty regarding the results that may be obtained from the use of the software. Except as expressly set forth in this Agreement, the software and services are provided “as is,” including with respect to compatibility, and the Provider disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement, to the maximum extent permitted by applicable law.

7. Limitations and Exclusions of Liability

7.1 Nothing in the Agreement will:

1. limit or exclude the liability of a Party for death or personal injury resulting from negligence;
2. limit or exclude the liability of a Party for fraud or fraudulent misrepresentation by that Party;
3. limit any liability of a Party in any way that is not permitted under applicable law; or
4. exclude any liability of a Party that may not be excluded under applicable law.

7.2 The Provider will not be liable:

1. in respect of any loss of profits, income, revenue, use, production or anticipated savings;
2. for any loss of business, contracts or commercial opportunities;
3. for any loss of or damage to goodwill or reputation;
4. in respect of any loss or corruption of any data, database or software;
5. in respect of any special, indirect or consequential loss or damage; and
6. for any losses arising out of a Force Majeure Event, a “Force Majeure Event” meaning an event, or a series of related events, that is outside the reasonable control of the Party affected (including for instance failures of or problems with the Internet or a part of the Internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars etc.) and which by the exercise of reasonable diligence the Party affected was unable to prevent.

8. Data Protection

8.1 The Provider and the Client shall comply with the applicable data protection legislation in relation to the processing of personal data.

8.2 The Client warrants that it has the legal right to disclose all data protected by any applicable data protection legislation (hereinafter “Personal Data”) that it does in fact disclose to the Provider under or in connection with the Agreement.

8.3 The Provider warrants that:

1. it will act only on instructions from the Client in relation to the processing of any Personal Data performed by the Provider on behalf of the Client; and
2. it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Client.

8.4 Sub-Processors

Client consents to the Provider's use of sub-processors to provide aspects of the SaaS Services, and to the Provider's disclosure and provision of Client Data to those sub-processors.

The Provider publishes a list of its then-current sub-processors at: www.intellyse.com/subprocessors (“Sub-Processor List”).

The Provider may authorize new sub-processors by providing not less than thirty (30) calendar days' prior written notice to the Client and by updating the Sub-Processor List.

To exercise its right to object to the Provider's use of a new sub-processor, the Client shall notify the Provider promptly in writing within fourteen (14) calendar days after receipt of the Provider's notice.

In the event the Client objects to a new sub-processor, and that objection is not unreasonable, the Provider will use reasonable efforts to make available to the Client a change in the SaaS Services or recommend a commercially reasonable change to the Client's configuration or use of the SaaS Services to avoid processing of Personal Data by the objected-to new sub-processor, without unreasonably burdening the Client.

If the Provider is unable to make such a change within a reasonable time period, which shall not exceed thirty (30) calendar days, the Client may terminate the applicable Order Form(s) with respect only to those aspects of the SaaS Service which cannot be provided by the Provider without the use of the objected-to new sub-processor, by providing written notice to the Provider.

9. Confidentiality and Publicity

9.1 The Provider covenants to keep confidential and not disclose the Client information that is marked confidential (hereinafter “Client Confidential Information”) to any person save as expressly permitted by the Agreement.

9.2 The Client covenants to keep confidential and not disclose any information disclosed (whether in writing, orally or otherwise) by the Provider to the Client (hereinafter “Provider Confidential Information”) save as expressly permitted by the Agreement.

9.3 Confidential information of a Party may be disclosed by the other Party to that other Party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the confidential information disclosed.

9.4 The obligations set out in this Section shall not apply to:

1. confidential information that is publicly known (other than through a breach of an obligation of confidence);
2. Client Confidential Information that is in possession of the Provider prior to disclosure by the Client, and Provider Confidential Information that is in possession of the Client prior to disclosure by the Provider;
3. Client Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Client, from an independent third party who has a right to disclose the relevant confidential information; or
4. confidential information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the Party subject to such disclosure requirement must where permitted by law give to the other Party prompt written notice of the disclosure requirement.

9.5 Each Party will make any public disclosure relating to the conditions of the Agreement (including press releases, public announcements) only with the prior written consent of the other Party.

9.6 Throughout the Subscription Term of this Agreement, Client authorizes Provider to use Client's name and logo for Provider's website and marketing collateral, subject to any specific limitations or conditions defined in the applicable Order Form.

9.7 Notification of Breach Each Party shall immediately notify the other Party if it becomes aware of (i) any potential disclosure, access to or use of any Confidential Information in breach of this Agreement; (ii) any unauthorized intrusion into systems containing Confidential Information; and (iii) any disclosure of any Confidential Information where the purpose of such disclosure does not have any apparent correlation with the execution of this Agreement.

9.8 Survival of Termination The confidentiality obligations specified in this section will continue to apply even after termination of this Agreement.

9.9 Return of Confidential Information Unless otherwise agreed, each Party will upon request return to the other party or destroy all tangible and intangible copies of the Confidential Information in its possession or in the possession of its Subcontractors or its staff upon expiration or termination of the Agreement.

10. Term and Termination

10.1 The Agreement is entered into for the fixed term specified in the Order Form (hereinafter and heretofore the “Term”).

10.2 In case of a renewal term each Party can terminate the Agreement as set forth in the Order Form.

10.3 Either Party may terminate the Agreement immediately by giving written notice to the other Party if the other Party:

1. commits any breach of any term of the Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other Party fails to remedy the breach within thirty (30) days of receipt of a written notice requiring it to do so; or (iii) persistently breaches the terms of the Agreement.
2. the other Party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) an order is made for the winding up of the other Party.

11. Effects of Termination

11.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect: Sections 4, 8.4 and 11.2 of the ISTC.

11.2 Termination of the Agreement will not affect either Party's accrued liabilities and rights as at the date of termination.

12. Force Majeure Event

12.1 Where a Force Majeure Event gives rise to a failure or delay in either Party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

12.2 Neither Party shall be liable for any delay or non-performance under this Agreement caused by any event beyond its reasonable control provided that the Party affected gives prompt notice in writing to the other Party.

12.3 A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will: (a) immediately notify the other Party; and (b) will inform the other Party of the period for which it is estimated that such failure or delay will continue.

12.4 If the Force Majeure Event continues for at least twenty (20) days, the Party not subject to the Force Majeure Event may terminate this Agreement by notice in writing to the other.

12.5 The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.

13. Amendments and Applicable Laws

13.1 The Provider may change the format or nature of the Product at any time. The Provider shall use commercially reasonable endeavours to notify the Client of material functional changes to the Product, in writing, including by e-mail. If any such change deters the functionality of the Product, the Client may terminate this Agreement as set out in Section 10 of the ISTC.

13.2 The Client shall ensure that its use of the Product complies with all applicable laws, rules and regulations, including, but not limited to any data protection regulations.

14. Miscellaneous

14.1 No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.

14.2 Unless specifically provided otherwise, any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall only be deemed to have been duly served if hand delivered or sent by e-mail.

14.3 If a provision of the Agreement is determined by any court or other competent authority to be unlawful, invalid and/or unenforceable, the other provision of the Agreement will continue in effect.

14.4 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the Parties.

14.5 This Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.

14.6 Neither party may transfer or assign this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. However, either party may assign this Agreement without consent to a successor that acquires substantially all of the business related to this Agreement, provided that the assigning party gives at least thirty (30) days' prior written notice to the other party.

14.7 The Client hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any affiliate.

14.8 Neither Party will, without the other Party's prior written consent, either during the Term of the Agreement or within six (6) months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other Party who has been involved in the performance of the Agreement.

14.9 The Provider may, at its sole discretion, subcontract any of its rights and obligations under this Agreement to a third party. However, the Provider remains fully responsible and liable for any work performed by its subcontractors.

14.10 Each Party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that Party's power, which are necessary to enable the Parties to exercise their rights and fulfil their obligations under the Agreement.

14.11 This Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party.

14.12 This Agreement constitutes the entire agreement between the Parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of the subject matter.

14.13 This Agreement will be governed by and construed in accordance with the substantive laws of Switzerland excluding its conflict of law provisions and excluding the United Nations Convention on the International Sale of Goods (CISG); and the exclusive place of jurisdiction is Zurich (City), Switzerland. The Provider may chose as alternative place of jurisdiction any competent court of justice worldwide.