1. Service

1.1 Access and Use. During the Subscription Period and subject to the terms of the Agreement, Customer may (a) access and use the System; and (b) use the included Software and Documentation only as needed to access and use the System, in each case, for its internal business purposes.

1.2 Service Level.  If the System does not meet the Service Level Agreement (“SLA”), Provider will provide the remedies outlined in the SLA and will not be responsible for any other remedies. Any credits earned under the SLA will only apply to future invoices and expire if the Agreement ends. In any event, if the System is temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of other causes beyond Provider’s reasonable control, no SLA remedies will accrue. Provider will try to inform Customer before scheduled service disruptions through the System or by email.

1.3 Support. During the Subscription Period, Provider will provide technical support as described in the Quote.

1.4 User Accounts. Customer is responsible for all actions on Users’ accounts and for Users’ compliance with the Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

1.5 Affiliates.  If authorized in the Quote, individuals from Customer’s Affiliates may access Customer’s account as Users under Customer’s Agreement and Customer will be responsible for its Affiliates’ compliance with the Agreement.

1.6 Feedback and Usage Data.  Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. All rights in the System, other than those expressly licensed herein, will remain with Provider and its licensors, including any and all improvements, developments or derivative works of the System suggested or made by Customer and/or User. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, and enhance Provider’s products and services without restriction or obligation. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.

1.7 Customer Content.  Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.

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2. Restrictions & Obligations

2.1 Restrictions on Customer.

(a) Except as expressly permitted by the Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product; (ii) provide, sell, transfer, sublicense, distribute or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product; (viii) use the Product with activity prohibited by applicable laws;(ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment;  (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights or (xi) use any outputs, results, visualizations, models, simulations, or other data generated by the System in any manner for the purpose of training, modifying or developing any artificial intelligence (AI) or machine learning (ML)technology, except as otherwise agreed upon by Provider in writing.

(b) Customer’s use of the Product must comply with all Documentation.

2.2 Suspension.  If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days after the Payment Period; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement or any applicable laws, then Provider may temporarily suspend Customer’s access to the Product with or without notice. Provider will reinstate Customer’s access to the Product if Customer resolves the underlying issue.

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3. Professional Services

Provider will perform the Professional Services as set forth in the Quote and Customer will reasonably cooperate with Provider to allow the performance of Professional Services, including providing Customer Content as needed. Provider is not responsible for any inability to perform the Professional Services if Customer does not cooperate as reasonably requested. Provider will use commercially reasonable efforts to meet dates specified in the Quote, and any such dates will be targets only but are not guaranteed.  Upon written notification from Provider that the Professional Services have been completed, Customer will have 15 days to notify Provider in writing of any deficiencies (including all details), following which period the Professional Services will be deemed accepted.

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Additional Quotes(s) will be deemed accepted and included in the Agreement by reference when Customer accepts additional Quote submitted by Provider.

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Changes . If Customer requests a change in any of the specifications, requirements, deliverables, or scope of the Professional Services, Customer will propose the changes by written notice to Provider.  Within a reasonable period after the receipt of the written notice, each party’s project leads will meet, either in person or via telephone conference, to discuss and agree upon next steps for the proposed changes.  Upon agreement between Customer and Provider about the execution of changes to the Software, Provider will prepare a new Quote describing the proposed changes and the applicable change in timelines, fees and expenses, if any. Any additional Quotes are not binding unless and until they are accepted by Customer.  Accepted additional Quotes will be deemed part of, and subject to, the Agreement.

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4. Privacy

4.1 Personal Data. Customer acknowledges and agrees that by using the System, Customer Content will be collected, stored, and processed by Provider or its subcontractors, which they will process solely to provide Customer and Users access to the System. Customer expressly represents and warrants that it has obtained all necessary consents and legal bases required under the EU General Data Protection Regulation (GDPR), the Swiss Federal Act on Data Protection(FADP) and other Applicable Data Protection Laws for the collection, storage, processing and transfer of Personal Data as contemplated herein. Each of Provider and Customer, whether as the data processor or as the data controller, willfully comply with their respective obligations under Applicable Data Protection Laws. Each of the Parties will take all appropriate technical and organizational measures to meet the general legal requirements, in particular regarding security and confidentiality. Provider’s Data Protection Policy is available under https://www.xplanis.com/privacy-notice.

4.2 Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized in writing by Provider.

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5. Payment & Taxes

5.1 Fees and Invoices.  All fees are in the currency stated in the Quote and exclusive of taxes. Except for the prorated refund of prepaid fees allowed with specific termination rights, fees are non-refundable. Provider will send invoices for fees applicable to the Product in advance starting on the Subscription StartDate. Invoices for Professional Services will be sent according to the milestones outlined in the Quote. Provider may increase the fees once per 12-month period by a percentage not exceeding 5% upon at least 3 months' prior written notice to Customer, justifying the rational for the price increase (e.g., inflation substantiated by the consumer price index).

5.2 Payment. Customer will pay Provider the fees and taxes in each invoice in accordance with the Payment Terms set forth in the Quote.

5.3 Taxes. Customer is responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.

5.4 Payment Dispute.  If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Provider about the dispute during the Payment Period and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement or applicable laws.

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6. Subscription Period & Termination

6.1 Subscription Period.  Each Quote will start on the Subscription Start Date, continue forth Subscription Period, and automatically renew for additional 12 months periods unless one party gives notice of non-renewal to the other party 90 days before the end of the initial Subscription Period or before the end of any 12 month period thereafter.

6.2 Termination. Either party may terminate the Agreement if the other party (a) fails to cure a material breach of the Agreement within 30 days after receiving notice of the breach; (b) materially breaches the Agreement in a manner that cannot be cured; (c) dissolves or stops conducting business without a successor; (d)makes an assignment for the benefit of creditors; or (e) becomes subject to bankruptcy proceedings (Konkurs), composition proceedings (Nachlassverfahren),or similar proceedings under applicable law. In addition, either party may terminate an affected Quote if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days, and Provider will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period. A party must notify the other of its reason for termination.

6.3 Effect of Termination.  Termination of the Agreement will automatically terminate all Quotes. Upon expiration or termination:

(a) Customer will no longer have any right to use the Product, technical support, or Professional Services.

(b) Upon Customer’s request, Provider will delete Customer Content within 60 days.

(c) Each recipient will return or destroy discloser’s Confidential Information in its possession or control.

(d) Provider will submit a final invoice for all outstanding fees accrued before termination and Customer will pay the invoice according to Section 5 (Payment & Taxes).

6.4 Survival.

(a) The following sections will survive expiration or termination of the Agreement: Section 1.6 (Feedback and Usage Data), Section 2.1 (Restrictions on Customer), Section 5 (Payment & Taxes), Section 6.3 (Effect of Termination), Section 6.4 (Survival), Section 7 (Representations & Warranties), Section 8 (Disclaimer of Warranties), Section 9 (Limitation of Liability), Section 10 (Indemnification), Section 11 (Insurance), Section 12 (Confidentiality), Section 13 (Reservation of Rights), Section 14 (General Terms), Section 15 (Definitions), and the portions of the Quote referenced by these sections.

(b) Recipient may retain discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by applicable laws, in which case Section 4 (Privacy& Security) and Section 12 (Confidentiality) will continue to apply to retained Confidential Information.

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7. Representations & Warranties

7.1 Mutual.  Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into the Agreement; (b) it is duly organized, validly existing, and in good standing; and (c) it will comply with all applicable laws in performing its obligations or exercising its rights in the Agreement.

7.2 From Customer.  Customer represents and warrants that it, all Users, and anyone submitting Customer Content, each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.

7.3 From Provider. Provider represents and warrants to Customer that (a) the System will materially conform to the Documentation; (b) it will not materially reduce the general functionality of the System during a Subscription Period; and (c) it will perform Professional Services in a competent and professional manner. The System may contain software and computer programs, which are developed, distributed, owned, and/or licensed by third parties (“Third Party Software”). To the extent such Third Party Software is included in the System and is made available under separate license terms, such terms are available upon Customer request. Such license terms shall govern Customer’s use of the corresponding Third Party Software and in respect of such use (but not the use of the System as a whole), shall supersede the terms of the Agreement in the event and to the extent of any conflict or inconsistency. Provider makes no representations or warranties with respect to any Third Party Software.

7.4 Provider Warranty Remedy.  If Provider breaches a warranty in Section 7.3, Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 30 days of discovering the issue. Within 30 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the System or reperform the Professional Services. If Provider cannot resolve the issue, Customer may terminate the affected Quote and Provider will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period. Provider’s restoration and reperformance obligations, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranties in Section 7.3.

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8. Disclaimer of Warranties

Except as expressly set forth in the Agreement, the System, Software and Documentation are provided “as is” and “as available”. Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 7.3 do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 7, Provider and Customer each disclaim all other warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by applicable laws.

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9. Limitation of Liability

9.1 Liability Cap.  Provider’s aggregate liability will not exceed an amount equal to the fees paid by Customer under the Agreement in the 12 months immediately prior to the date on which the claim first accrued. Provider will not be liable for any indirect or consequential damages such as but not limited to loss of profits, loss of business, depletion of goodwill, nor will Provider be liable for any loss or corruption of data(including Customer Content) or information, loss of or damage to software or hardware, for computer viruses or in connection with or arising out of the Agreement or the furnishing, performance or use of the Professional Service or Software.

9.2 Damages Waiver.  Each party’s liability for any claim or liability arising out of or relating to the Agreement will be limited to the fullest extent permitted by applicable laws. Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to the Agreement, even if the party is informed of the possibility of this type of damage in advance.

9.3 Applicability. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in the Agreement fails of its essential purpose.

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10. Indemnification

10.1 By Provider.  Provider will defend, indemnify and hold harmless Customer against claims brought by a third party (“Third Party Claims”) and related direct losses arising out of or in connection with an allegation that the Professional Services or the System (excluding Third Party Software) infringes intellectual property rights of a third Party.

10.2 By Customer.  Customer will defend, indemnify and hold harmless Provider, its Affiliates, and their respective officers, directors, employees, agents, representatives, suppliers, successors and assigns against any Third Party Claims and related Losses arising out of or in connection with (a) Customer’s or its User’s use of the System in breach of the Agreement; and (b) Customer Content or other data or content provided to Provider infringes, misappropriates, or otherwise violates any law, breach of confidentiality, intellectual property rights or privacy rights of a third party.

10.3 Procedure.  The indemnifying party’s obligations in this section are contingent upon the other party: (a) promptly notifying the indemnifying party of each claim for which it seeks protection; (b) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense; and(c) giving the indemnifying party sole control over the defense and settlement of each claim. The other party may participate in the claim for which it seeks protection with its own attorneys only at its own expense. The indemnifying party may not agree to any settlement of a claim that contains an admission of fault or otherwise materially and adversely impacts the other party without the prior written consent of the other party.

10.4 Changes to Product.  If required by settlement or court order, or if deemed reasonably necessary in response to a claim covered under this section, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Quote and issue a pro-rated refund of prepaid fees fort he remainder of the Subscription Period.

10.5 Exclusions.  

(a) Provider’s obligations as an indemnifying party will not apply to claims that result from(i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use oft he Product, including use in violation of the Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.

(b) Customer’s obligations as an indemnifying party will not apply to claims that result from the unauthorized use of the Customer Content, including use in violation of the Agreement.

10.6   Exclusive Remedy.  This Section 10 (Indemnification), together with any termination rights, describes each protected party’s exclusive remedy and each indemnifying party’s entire liability for a claim hereunder.

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11. Insurance

During the Subscription Period and for 6months after, Provider will carry commercial insurance policies with coverage limits that meet the insurance minimums required by law, if any. Upon request, Provider will give Customer a certificate of insurance evidencing its insurance policies.

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12. Confidentiality

12.1 Non-Use and Non-Disclosure.  Unless otherwise authorized in the Agreement, recipient will (a) only use discloser’s Confidential Information to fulfill its obligations or exercise its rights under the Agreement; and (b) not disclose discloser’s Confidential Information to anyone else. In addition, recipient will protect discloser’s Confidential Information using at least the same protections recipient uses for its own similar information but no less than a reasonable standard of care.

12.2 Exclusions. Confidential Information does not include information that (a) recipient knew without any obligation of confidentiality before disclosure by discloser;(b) is or becomes publicly known and generally available through no fault of recipient;(c) recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) recipient independently developed without use of or reference to discloser’s Confidential Information.

12.3 Required Disclosures.  Recipient may disclose discloser’s Confidential Information to the extent required by applicable law if, unless prohibited by applicable law, recipient provides discloser reasonable advance notice of the required disclosure and reasonably cooperates, at the discloser’s expense, with the discloser’s efforts to obtain confidential treatment for the Confidential Information.

12.4 Permitted Disclosures.  Recipient may disclose discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 12 and recipient remains responsible for everyone’s compliance with the terms of this Section 12.

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13. Reservation of Rights

Except for the limited license to copy and use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the A Subscription Start Date. Except for the limited rights in Section 1.7 (Customer Content), Customer retains all right, title, and interest in and to the Customer Content.

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14. General Terms

14.1 Entire Agreement.  The Agreement is the only agreement between the parties about its subject and supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes.

14.2 Modifications, Severability, and Waiver.  Provider reserves the right to change or revise the Terms and Conditions at any time by providing prior written notice to Customer. The date and reference indicated in the header shows the latest applicable version. Customer express acceptance of any changes or revision to the Terms and Conditions will occur by continuing accessing and using the System. Provider may update technical support or the SLA by giving Customer 30 days prior notice. If any term of the Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of the Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in the Agreement will not constitute a waiver by that party of the term, option, or right.

14.3 Governing Law and Chosen Courts.  The laws of Switzerland (without giving effect to its conflict of laws principles) govern all matters arising out of or relating tot he Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance and enforcement. All disputes arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the courts of Bern, Switzerland, subject to the right of appeal to the Federal Tribunal.

14.4 Injunctive Relief.  A breach of Section 12 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 12 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

14.5 Assignment. Neither party may assign any rights or obligations under the Agreement without the prior written consent of the other party. However, either party may assign the Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which the Agreement relates. Any attempted but non-permitted assignment is void. The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

14.6 No Publicity. Neither party may publicly announce the existence of the Agreement without the prior written approval of the other party, except that Provider may use Customer’s name as a reference for relevant prospects.

14.7 Notices.  Any notice, request, or approval about the Agreement must be in writing and sent tot he Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) 2 days after mailing if by overnight commercial delivery.

14.8 Independent Contractors.  The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

14.9 Force Majeure. Neither party will be liable for a delay or failure to perform its obligations under the Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay fees.

14.10 Export Controls. Customer and Users will (i) comply with all applicable laws, rules and regulations pertaining to export and import controls, including Swiss and EU export control regulations and (ii) represent that the System and any related technology will not be used, accessed, sold, transferred or diverted to any sanctioned or embargoed country; or to any person or entity on the applicable restricted parties lists.

14.11 Anti-Bribery. Neither party will take any action that would be a violation of any applicable laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business.

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15. Definitions.

15.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%)of the voting stock or other ownership interest.

15.2  “Agreement” means these Terms and Conditions, together with the Quote accepted in writing by Customer that includes documents referenced in or attached to the Quote.

15.3 “Applicable Data Protection Laws” means the applicable laws that govern how the System may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term, including but not limited to the Swiss Federal Act on Data Protection (FADP), its implementing ordinances, and where applicable, the EU General Data Protection Regulation (GDPR).

15.4 “Confidential Information” means any and all information belonging to or about one oft he parties (including any of its Affiliates), including without limitation: trade secrets; patent applications, product plans; designs and information; market information, forecasts, marketing; operations, financial, pricing, business, investor and budget information; technical and strategic plans, in any form disclosed by or on behalf of the discloser, including before the Subscription Start Date, to the recipient in connection with the Agreement that (a) the discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.

15.5 “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.

15.6 “Documentation ”means the usage manuals and instructional materials for the System or Software that are made available by Provider.

15.7 “Feedback” means suggestions, feedback, or comments about the Product or related offerings.

15.8 “Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disaster like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

15.9 “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.

15.10 "Product” means the System, Software, and Documentation.

15.11 “Prohibited Data” means (a) patient, medical, or other protected health information; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the Applicable Data Protection Laws; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.

15.12 “Quote” means the quote issued by Provider that is signed or electronically accepted by the Customer that incorporates these Terms and Conditions and provides for commercial terms. The Quote may include details about the level of access and use granted to the System, nature and timing of Professional Services, extent of technical support, or other details about the Product.

15.13 “Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product, including, without limitation, documentation, translations, modifications, and all intellectual property rights thereto.

15.14 “System” means Xplanis Software and product(s) described in an Quote.

15.15 “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.

15.16 “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.

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