These general terms and conditions (GTC) form together with the terms of any signed order form (Order Form) referencing these GTC and any schedule thereto (Schedule) a legal agreement (Agreement) between ColabON AG (CHE-170.956.022), Sandmattstrasse 21, 4532 Feldbrunnen (ColabON) and any customer mentioned in an Order Form (Customer, and together with ColabON, the Parties) for the use of ColabON’s Quality Management System Application (the ColabON App) and Quality System Process Descriptions.
1.1. In General
These GTC govern Customer’s rights and obligations with respect to the access and use of the ColabON App, the services available through it (the Services), and the content made available by Provider through the ColabON App or the Services (the Content and together with the ColabON App, the Licensed Products), with the functionalities, modules and limitations specified in any an Order Form executed by Customer.
1.2. No Further Obligation
ColabON shall have no obligation to provide any service or software which are not expressly specified in these GTC or in the Order Form.
By subscribing for, setting up an account or logging in for the use of the ColabON App and/or signing an Order Form, Customer expressly agrees to be bound by the terms hereof.
3. Right to Access and Use
3.1. In General
Subject to Customer’s compliance with all terms and conditions of the Agreement, in particular, subject to its full payment of the applicable Fees in accordance with Section 9 of these GTC, ColabON, grants to Customer, during the Term (except as specified in Section 3.2), a revocable, non-exclusive and non-transferable right to access and use the Licensed Products strictly in accordance with these GTC and the documentation provided by ColabON, for its own internal business purposes only.
3.2. SOP and Templates
If as part of the Licensed Products, ColabON makes available standard operating procedures and the related templates (together the SOP and Templates), as must be specified in the Order Form, then in derogation to Section 3.1 (i) Customer’s right to access and use the SOP and Templates shall not be limited to the Term and shall continue thereafter for as long as Customer’s complies with the terms of these GTC (including without limitation section 5.2) and (ii) such SOP and Template may be shared with Customer’s employees, vendors and authorities to the extent strictly required for the operation of Customer’s own quality management business. Any other use of the SOP and Templates, such as reselling or sharing them with third parties to enable them to set up a quality management system, is not allowed.
3.3. Authorised Users
Always subject to the limits of the Order Form, Customer shall use the Licensed Products only through its own employees, agents/consultants, vendors and/or duly authorised representatives who have received named credentials for use of the Licensed Products (the Authorised Users), and shall take appropriate steps to ensure compliance with the GTC by such Authorised Users. Customer is expressly prohibited from using the Licensed Products on behalf or for the benefit of any third- parties, or to sublicense the Licensed Products to any third party, without ColabON’s express prior written consent. Customer shall maintain an up-to- date list of its Authorized Users, which shall promptly be made available to ColabON upon request.
3.4. User Credentials
User credentials for the use of the Licensed Products shall be delivered on a named user basis and shall be used exclusively by the individual Authorised Users for which they have been issued, on behalf and for the benefit of Customer.
If the use of the Licensed Products is subject to specific restrictions (e.g. limited number of concurrent users or devices, named users, or other limitations), as specified in the Order Form or the documentation provided by ColabON, Customer must use the Licensed Product strictly in accordance with such restrictions.
3.6. Limited Licenses
If so specified in the applicable the Order Form, and always subject to Customer’s compliance with all other terms and conditions of these GTC, ColabON may make the Licensed Products available under limited licences, subject to the following additional conditions and limitations:
a) Trial License: if so specified in an Order Form, the Licensed Products may be made available [at no cost/at a reduced rate] for a limited period of time – at which time the license shall automatically be converted into a full license – exclusively for the purpose of the Licensed Products’ evaluation in view of the acquisition of a full licence, to the exclusion of any commercial use (the Trial License).
b) Beta Services. From time to time, ColabON may make Beta Services available to Customer at no additional charge. Beta Services are new or different Licensed Products, Services, or Contents, or functionality thereof, made available to customers for testing and evaluation, such as pilot, limited release, early access, etc. and are clearly designated as beta or by a similar description. Customer may choose to use such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Customer. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, which are hereby disclaimed notwithstanding anything to the contrary in the Agreement. For the avoidance of doubt, all restrictions and Customer’s obligations in this Agreement shall also apply to Beta Services. ColabON may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
3.7. No Delivery
The Licensed Products are provided as a SaaS offering (Software as a Service); therefore, ColabON shall only grant to Customer a right to access and use the Licensed Products and shall not deliver any copy of the Licensed Products.
If, in connection with the Licensed Products and Services, ColabON customises, develops or makes available additional features for, respectively provides patches, bug-fixes, updates or upgrades to the Licensed Products (Developments) such Developments shall automatically become part of the Licensed Products, unless otherwise stipulated by ColabON.
Customer acknowledges that ColabON may implement modifications to the Licensed Products which may include modifications to the layout or functionalities of the Licensed Products as ColabON determines, and ColabON will have the unfettered right to change or remove any Content from the ColabON App or change its functionalities at its sole discretion.
4. Availability; Maintenance and Other Services
4.1. Availabilty of Licensed Products
ColabON shall use reasonable endeavours to maintain the availability of the Licensed Products, but does not guarantee their full availability.
4.2. Maintenance Services
As part of the providing of the Licensed Products, ColabON shall continuously seek to identify and attempt to resolve problems which may negatively affect the proper functioning and availability of the Licensed Products (the Maintenance Services). Such Maintenance Services comprises repairs (rectification of faults and errors to restore functionality) and servicing (maintenance to maintain functionality). Further development, adaptation or improvement of the Licensed Products (evolutive maintenance), support services as well as additional Services (as described in Section 4.4), do not form part of the Maintenance Services.
4.3. Maintenance Windows
As a rule, Maintenance Services are deployed once a week during maintenance windows (i.e. on weekdays between 6pm and 9am CET or during the weekend and no longer than 1 hour during which the Licensed Products may be fully or partly unavailable. ColabON shall inform reasonably in advance Customer if Maintenance Services have to be performed outside of such timeframe and/or for a duration leading to foreseeable full or partial unavailability of Services during more than 1 hour.
4.4. Additional Services
ColabON agrees to provide technical support to Customer for the Licensed Products, if and as described in the relevant Order Form. ColabON may also agree to provide additional Services for the Licensed Products (such as customisation, development and/or consulting services), subject to the Parties entering into an ad hoc agreement (which shall, unless specified otherwise, be governing by these GTC) pertaining to such Services and payment by Customer of the applicable fees. If, within the frame of such Services, ColabON provides or helps Customer to generate any Content useable in connection with the ColabON App, subject to express agreement to the contrary, such Content shall automatically become part of the Licensed Products governed hereunder.
4.5. Obligation of means
By default, ColabON is only bound by an obligation of means for the supply of Services. ColabON will supply the Services in accordance with standard professional practice, with the care and diligence required from a supplier of similar services.
5. Customer’s Obligations
5.1. Payment of Fees
Customer shall pay the Fees as indicated in the Order Form or by any other appropriate means (e.g. pricing schedules provided to Customer by ColabON) (the Fees), in accordance with the payment terms set forth in Section 9.
5.2. Proper Use
Customer shall – and shall cause its Authorised Users to – at all times comply with all laws and regulations applicable to the use of the Licensed Products, as well as the conditions and limitation of any license or other right granted, as set out in the Agreement or as otherwise specified in writing by ColabON. In particular, Customer or the Authorised Users shall not, without the prior consent of ColabON, and either during or after the Term: (i) use the Licensed Products for any illegal purposes (ii) republish or redistribute any Content or material from the Licensed Products; (iii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Licensed Products or of its infrastructure; (iv) make any alteration to the Licensed Products, or insert any malicious software into the ColabON App or its infrastructure; (v) access the ColabON App’s code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the ColabON App or its infrastructure (vi) access or use the Licensed Products for the purpose of building a competitive product or service or copying its features, contents, or user interface; (vii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Licensed Products or any part of their infrastructure available to any third party other than its Authorised Users.
5.3. Management of user credentials
Customer shall (i) verify the identity of each Authorized User; (ii) be fully responsible for the management and confidentiality of any user credentials issued for its Authorized Users; (iii) immediately notify ColabON of any loss or unauthorised disclosure of such user credentials, or if any named user to whom user credentials have been issued quits Customer’s organization, in which events such user credentials shall be deactivated and replaced (by Customer if the corresponding functionality is available; and otherwise by ColabON, in which case it may charge an appropriate fee for such activities).
5.4. Customer’s infrastructure
Customer shall procure and maintain at its costs an infrastructure that complies with the minimum requirements for the use the ColabON App, as specified from time to time by ColabON in the ColabON App’s documentation.
5.6. Licenses and Authorization
Customer shall maintain all permits and licenses that are required for its use of the Licensed Products.
Customer shall provide to ColabON the assistance and information reasonably required by ColabON for the proper performance of the Services, as may be relevant for the performance of the Services or Licensed Products.In particular, Customer shall :
a) spontaneously provides any information necessary or useful for the proper performance of the Agreement of which it is aware;
b) allows ColabON reasonable access to its premises and infrastructure, if such access is necessary or useful for the proper performance of the Agreement, respectively to verify such performance, and provides adequate means and resources (e.g. equipped offices, network, access, etc.); and
c) comply with any reasonable instructions and/or directions from ColabON in connection with the Services or Licensed Products.
The Licensed Products may contain tools allowing ColabON to verify Customer’s compliance with these GTC and ColabON shall have the right to temporarily or permanently suspend the access to the Licensed Products and/or deactivate any user credentials issued for the use thereof in case of none compliance with these GTC.
Additionally, ColabON shall have the right to audit Customer’s compliance with the Agreement once a year during usual office hours. Customer undertakes to provide all necessary assistance and information for the purposes of such audit, at no cost. If an audit shows that Customer has exceeded the metrics or other limitation specified in an Order Form, it shall pay the difference between the Fees actually paid (if any) and the Fees it would have had to pay for its actual use and/or access of the Licensed Products, plus 5% interest, from the first time it exceeded its rights. In this case, Customer shall further pay the costs incurred for the audit. The right of termination pursuant to Section 18.4 shall apply additionally.
5.10. Customer Default
In case of default by Customer to comply with its obligations set forth in these GTC or in the Order Form, ColabON shall be excused from the performance of its obligations under the Agreement and assume no liability in relation therewith (without prejudice to ColabON’s other rights under this Agreement).
6. Customer Materials
Customer and its Authorized Users may provide documents, information and other data through their use of the ColabON App (Customer Materials). As between the Parties, Customer Materials is and shall remain the sole and exclusive property of Customer and nothing herein shall be construed or interpreted as a transfer of ownership in any Customer Materials to ColabON.
6.2. Use of Customer Materials
Customer grants to ColabON a non-exclusive, worldwide, royalty-free, irrevocable license to use the Customer Materials for the sole and exclusive purpose of providing or improving the Licensed Products and/or the Services, including a license to collect, process, store, generate, use, modify, create derivate work of, publicly perform, display, and make available the Customer Materials to third parties (such as services providers or other users of the ColabON App). For the avoidance of doubt, ColabON will not sell or otherwise commercialize the Customer Materials, nor use it for marketing purposes.
Provider shall implement and maintain technical and organisational measures to secure Customer Materials in accordance with Provider’s information security policy and shall take appropriate measures to ensure compliance with such security measures by its employees and subcontractors.
Customer warrants that (i) it has valid grounds and, if required, it has obtained all authorisations and consents for the processing of any Customer Materials within the frame of these GTC and (ii) Customer Materials do not infringe on any law or regulation, these GTC, or any third party rights. ColabON may remove any User Materials which it considers infringes this warranty.
7. ColabON Intellectual Property
7.1. Licensed Products
As between ColabON and Customer, ColabON shall be and remain the sole owner of all rights, title and interest, registered or not, whether arising from Swiss or any other national or international legislation, in copyright, databases, trademark, domain names, designs and patents of invention, know-how, confidentiality and/or business secrets, and all other intellectual property or similar proprietary rights of whatever nature (Intellectual Property Rights) in and to the Licensed Products, the ColabON App and other Services provided in connection therewith, including any Development (except only for Customer Materials). Nothing in these GTC shall operate any assignment or transfer of any Intellectual Property Rights to Customer.
7.2. Notice of Infringement
Should Customer become aware of any infringement or imminent risk of any infringement of any Intellectual Property Rights pertaining to the Licensed Products or Services, Customer shall immediately inform ColabON and provide all useful information on such infringement or risk of infringement. ColabON shall have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. Customer shall, at its own costs, provide ColabON with all reasonable assistance required by ColabON to protect its Intellectual Property Rights, in accordance with its instructions.
7.3. Intellectual Property Rights Infringement
In the event that ColabON is enjoined from providing the Licensed Products or Services due to any third- party Intellectual Property Rights claims and such injunction is not dissolved within 30 calendar days, or in the event that Customer is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any third-party Intellectual Property Rights due to the use of the Licensed Products or Services as permitted hereunder, then ColabON shall, at its expense: (a) obtain for Customer the right to continue using such Licensed Products or Services; (b) replace or modify such Licensed Products or Services so that they do not infringe upon or misappropriate such Intellectual Property Rights and are free to be used by Customer; or, (c) in the event that ColabON is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, ColabON may terminate the Agreement, with immediate effect, reimbursing Customer any prepaid Fees for the period during which the latter is thus unable to use the Licensed Products or Services, as its sole and exclusive remedy.
Customer expressly acknowledges that any infringement of ColabON’s Intellectual Property Rights will cause irreparable harm to ColabON, for which monetary damages alone would be inadequate, and that ColabON may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.
8. Third-Party Content
8.1. In General
The Licensed Products and Services may contain Content and/or software components incorporated into the Licensed Products or provided therewith, developed, distributed and/or licensed by third parties (Third-Party Content). Such Third-Party Content shall be licensed, and Customer shall use such Third-Party Content under, and strictly in accordance with, the applicable terms and conditions by the respective third-party. ColabON shall use its best efforts to identify any Third-Party Content in the documentation of the Licensed Products.
Nothing in these GTC shall restrict, limit or otherwise affect any rights or obligations that Customer may have, or conditions to which Customer may be subject, under any applicable open source licenses to any open source software which may be incorporated in and/or provided together with the Licensed Products.
9. Financial Terms
Subscription Fees and “on-time payment” Fees shall be due and payable in advance of their respective terms, as indicated the Order Form, and non-refundable in case of termination. Additional Fees as incurred pursuant to the ColabON’s provision of Services, or through Customer’s use of the Licensed Products are invoiced in arrears, on a monthly basis.
Fees and rates indicated by ColabON shall be exclusive of all taxes (in particular, VAT) if and as applicable.
Payment of the Fees shall be made to ColabON’s bank account, as indicated from time to time to Customer.
9.4. Suspension of Services
The continued use of the Licensed Products and Services by Customer is subject to the timely payment of all the Fees. ColabON may temporarily stop providing the Services or suspend any right to access or use any Licensed Product and/or any user credentials issued to Customer, if applicable, if Customer is in default for payment of any Fees due.
Changes of the Fees and/or the subscription models, if applicable, shall become effective as of the next Renewed Term, subject to a prior written notice of 4 months by ColabON. If Customer’s subscription model is no longer available, the subscription shall automatically be transformed into a subscription under the next closest subscription model existing as of its Renewed Term, as advised by ColabON in its notice to Customer.
10. Data Protection
10.1. ColabON Privacy notice
ColabON has issued a privacy notice, accessible at [address] (Privacy Notice), which describes how personal data is collected through the ColabON App and for what purposes. That privacy notice, as amended from time to time, forms an integral part of these GTC.
10.2. Customer Personal Data
If the provision of the Licensed Products or Services implies the processing by ColabON of (i) any personal data forwarded by Customer or of Customer’s Authorised Users (Customer Personal Data), in particular as part of Customer Materials, ColabON and Customer shall fully comply with their respective obligations under applicable data protection laws and regulations.
10.3. Roles of the Parties
In such cases, ColabON shall process Customer Personal Data as data processor, exclusively for the purpose agreed in these GTC and only to the extent necessary to fulfil the obligations hereunder, in accordance with Customer’s instructions, which shall act as data controller.
10.4. Customer’s Obligations
Customer shall ensure, with respect to any Customer Personal Data processed by ColabON within the frame of the Licensed Products, if any, that such Customer Personal Data has been collected and transferred to ColabON in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, Customer shall:
a) have, and maintain at all times, valid grounds for the processing of such personal data;
b) have adopted and implemented appropriate technical and organisational measures to protect such personal data; and
c) have complied and comply with all registration and/or notification requirements, if and as required under applicable data protection or data privacy laws and regulations, prior to granting ColabON access to such Customer Personal Data within the frame of the Licensed Products.
Customer shall bear sole responsibility for the processing of Customer Personal Data, if any, within the frame of the Licensed Products. Customer acknowledges and accepts that ColabON shall deem any processing of any Customer Personal Data within the frame of the Licensed Products, as permitted under the Agreement, as well as any instructions by Customer with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.
By accepting these GTC, Customer expressly acknowledges and agrees that Customer Personal Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Customer’s jurisdiction.
10.7. Compliance Actions
Unless expressly prohibited in writing or pursuant to applicable law, ColabON may forward to Customer any request, investigation or other action by any supervisory authority and/or any third-parties (including data subjects), directed at ColabON with respect to the processing of any Customer Personal Data. If ColabON is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations, and/or to provide assistance to Customer, Customer shall fully indemnify ColabON for its effort and costs, including reasonable attorney’s fees, incurred in such context.
Confidential Information shall mean any information disclosed by either Party (as the context requires, the Disclosing Party) to the other (as the context requires, the Receiving Party), either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “confidential”, “proprietary”, or some similar designation or can reasonably be considered of confidential nature. Confidential Information includes the content of the Agreement, (but not the fact that the Parties are collaborating), all information about the Disclosing Party’s business and operations, and more generally all information relating to or owned or controlled by the Disclosing Party of which the Receiving Party shall acquire knowledge in the performance of their agreement. The Licensed Products, Services shall be deemed Confidential Information and the property of ColabON only, ColabON acting as Disclosing Party in relation to such data. Confidential Information shall not, however, include any information which: (i) was made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known without restriction after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records.
11.2. Obligation of Confidentiality
The Receiving Party shall not, and shall cause its employees, agents, subcontractors or representatives not to (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party, except to its employees, agents, subcontractors or representatives having a legitimate need to know such Confidential Information for the performance of the Receiving Party’s obligations under the Agreement (and only to such extent), and/or (b) use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary to perform its obligations hereunder.
All Confidential Information shall remain the Disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the Disclosing Party will be delivered to the Disclosing Party promptly upon the Disclosing Party’s written request.
11.4. Cooperation and Assistance
Each Party shall use its best efforts to assist the other Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each Party shall advise the other Party immediately in the event either Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to breach confidentiality and each Party shall cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
Nothing contained in the Agreement shall prevent ColabON or Customer from complying with applicable laws. The Receiving Party may disclose Confidential Information of the Disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
Customer acknowledges that breach of its obligation of confidentiality may give rise to irreparable harm to ColabON, which might not be adequately compensated in the form of monetary damages. Accordingly, ColabON may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, in contract or at law.
ColabON has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer provides to ColabON, and nothing in the Agreement or in the Parties’ dealings arising out of or related to the Agreement will restrict ColabON ‘s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. (Feedback’ refers to any suggestion or idea for improving or otherwise modifying any of ColabON’s Licensed Products or other products or services.)
12. Advertising and Publicity
ColabON may refer to Customer as a customer of ColabON for the ColabON App and Customer grants to ColabON a limited license to use its name, logos and trademarks for the sole purpose of referring to it within the frame of its marketing activities.
13. Limited Warranty
13.1. As IS/AS AVAILABLE
The Licensed Products and Services are provided AS IS and AS AVAILABLE. To the maximum extent permitted by applicable law, ColabON disclaims all warranties with respect to the Licensed Products or Services, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non- infringement of third-party rights.
In particular, ColabON does neither represent nor warrant that the Licensed Products or Services shall meet Customer’s requirements, that the operation of the Licensed Products or Services will be uninterrupted or error-free, that the Content will be error-free, that any errors in the Licensed Products will be corrected, that it will ensure continued compatibility of the Licensed Products or Services with any third-party products, even if they were compatible at any given moment, that the Licensed Products or Services will always be available and remain available unchanged or that certain subscription models for the Licensed Products or Services available at any given moment will remain available for renewal at the end of the applicable subscription period. The use of the Licensed Products and Services is entirely at Customer’s own risk, and ColabON expressly disclaims any warranties regarding Customer’s use thereof and/or any decisions taken by Customer based on the insights gained from its use of the Licensed Products or Services.
The use of the Internet involves risks, in particular that the data transmitted may be intercepted, altered or deleted. By using the ColabON App, Customer accepts these risks. ColabON declines all responsibility in this respect.
14. Limited Liability
14.1. Limited Liability
ColabON’s liability under the Agreement, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.
In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, ColabON disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether ColabON has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.
14.3. Limited Amount
In no event, ColabON’s total liability during any period of 12 months shall exceed the amount of the Fees actually paid by Customer during the 12 months preceding the events giving rise to Customer’s claims.
The exclusions and limitations under this Section 14 shall extend to ColabON’s directors, officers, employees, agents, representatives and auxiliaries.
Customer shall defend, hold harmless from, and indemnify ColabON, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney’s fees, resulting from (i) Customer’s use of the Licensed Products other than as permitted under these GTC and strictly in accordance with any documentation provided for the Licensed Products; or (ii) ColabON’s use of any Customer Materials as permitted hereunder.
15.2. Indemnification Procedures
In case of any claims or proceedings made against ColabON, its directors, officers, employees or auxiliaries in relation to Customer’s use of the Licensed Products or ColabON’s use of Customer Material, ColabON shall (i) inform Customer without undue delay; and (ii) allow Customer to assist ColabON in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.
16. Term and Termination
16.1. Entry into Force
The Agreement shall enter into force upon any of the following events, whichever occurs first: Customer’s subscription for the use of the ColabON App or first use of the Licensed Products or Services.
The Agreement shall remain in effect for the initial term indicated in the Order Form, and in the absence of a term specified, for a initial duration of 24 months, subject to non-renewal or termination in accordance with this Section 16 (the Initial Term).
The Agreement shall be automatically renewed upon expiry of the Initial Term, or then current renewed term (each a Renewed Term, and together with the Initial Term, the Term), for consecutive Renewed Term of the same duration as the Initial Term, subject to prior written notice of non-renewal by either Party with a 3 months prior notice.
16.4. Termination for Cause
ColabON may terminate the Agreement with immediate effect, in case of any material breach by Customer, provided that, if Customer’s breach may be cured, at ColabON’s sole judgement, ColabON shall first give Customer 20 days’ prior written notice to cure such breach at ColabON’s entire satisfaction. ColabON may further terminate the Agreement, in case of any infringement of third party rights or risk of infringement of such rights, through Customer’s use of the Licensed Products.
16.5. Effects of Termination
Upon termination of the Agreement, and in addition to the consequences described elsewhere in the GTC:
a) ColabON shall stop providing and Customer shall stop using the Licensed Products and Services;
b) all rights to use and access granted to Customer hereunder (inter alia under Section 3.1) shall cease. All access to the Licensed Products and credentials shall be deactivated and suppressed;
c) Customer shall permanently delete any part of the Licensed Products stored or installed on its IT systems, if any;
d) Provider shall within reasonable time following a written request by Customer, subject to the absence of a dispute between the Parties (including on the payment of the Fees), provide Customer with a final extract of the Customer Materials and permanently delete any copies of such Customer Materials still under its control. In any case, Provider shall be allowed to permanently delete Customer Materials 60 days after termination or non-renewal of the Agreement;
e) Except as stated in Section 16.5 (d), Confidential Information shall be returned to the Disclosing Party and/or permanently deleted from any support of the Receiving Party, at the Disclosing Party’s option, and Receiving Party shall cease using the Confidential Information;
f) all Fees already paid by Customer shall remain acquired to ColabON and are not reimbursable to Customer. Customer shall immediately pay all outstanding amounts due to ColabON; and
g) however, in derogation to sections 16.5 (a) to (c), provided all Fees have been fully paid, termination of the Agreement will not affect Customer’s right to use the SOP and Templates (as further specified in Section 3.2), unless Customer is in breach of its obligations hereunder, and these GTC will continue to apply to their use for as long as the Customer has access to such SOP and Templates.
All terms which are expressed or intended to survive, and any provisions of the Agreement necessary for its interpretation or enforcement will continue to apply regardless of the reason for termination or expiry of the Agreement.
17.1. Independent Contractors
The Parties acknowledge and agree that they shall be considered as independent contractors with no authority to contract for the other or in any way to bind or to commit the other or in a way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other. Under no circumstances shall either Party, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of the other. Neither Party shall pay any contributions to social security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, or provide any other contributions or benefits which might be expected in an employer-employee relationship.
ColabON may use subcontractors for the provision of the Licensed Products and Services. ColabON’s use of subcontractors shall not relieve ColabON of any of its duties or obligations hereunder, which shall be imposed on subcontractors.
17.3. Force Majeure
Neither Party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, such as natural catastrophes, war, strikes, black-outs, Internet failure, virus outbreaks, or similar events. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section, and inform the other Party of its plans to resume performance.
The Order Form may be amended only by written instrument signed by both Parties. ColabON reserves the right to amend these GTC by written notice to Customer at least 4 months prior to the end of the Initial Term or any Renewed Term, in which case Customer’s sole remedy shall be to terminate the Agreement in accordance with Section 16.3. In the absence of termination, such amendments shall become effective as of the beginning of the Renewed Term.
17.5. Entire Agreement
The Agreement constitutes, together with the End-user Documentation, the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between them, as to the subject matter hereof.
In the event of a conflict or contradiction between the provisions of the GTC and those of any other contractual documents such as the Order Form, any Schedule, or the End-user Documentation, the GTC shall take precedence, subject to express and specific deviations, deletions or additions contained in the proper section of the Order Form to that effect, citing the section(s) of these GTC it shall amend.
If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement shall remain valid and enforceable to the fullest extent possible.
17.8. Electronic Form
The words “execution”, “signature” and similar words in the Agreement shall be deemed to include unqualified electronic signatures (e.g. Docusign or any equivalent e- signature provider) which shall be of the same legal effect, validity or enforceability as a manually executed signature; while the term “in writing” shall include communications by email or other electronic forms.]
17.9. No Waiver
The failure of either Party at any time to require performance by the other Party of its obligations hereunder shall in no way affect that Party’s right to fully enforce the other Party’s obligations thereafter.
Except for transfers or assignments authorized pursuant to the terms of the GTC, Neither Party shall assign and transfer any or all of its rights and obligations hereunder, in whole or in part, to any third party without the other Party’s prior written consent; provided however, that ColabON may assign and transfer all of its rights and obligations hereunder to any third party acquiring all or substantially all of its business related to the Licensed Products or Services, without Customer’s consent.
17.11. No Third Party Beneficiaries
Except pursuant to Section 15 GTC, this Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of these GTC or any Order Form.
18. Governing Law and Jurisdiction
18.1. Governing Law
The Agreement and/or any use of the Licensed Products shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.
Any dispute or controversy arising out of or in relation to the Agreement and/or Customer’s use of the Licensed Products shall be subject to the exclusive jurisdiction of the competent ordinary courts at the place of the registered office of ColabON AG. Notwithstanding the preceding, nothing in these GTC shall prevent ColabON from seeking injunctive relief or any other remedy available at law in any jurisdiction in case of any infringement of its Intellectual Property Rights.
Last updated: 21.07.2021