1. Définitions

1.1 "Ansam Group" 

means Ansam Holding SA, headquartered at 13, rue des Marchandises, 1260 Nyon, Switzerland, and all of its affiliated companies (the "Affiliated Companies", individually an "Affiliated Company"), including but not limited to the following

  • iXion Services SA, Rue des Marchandises 13, 1260 Nyon, and its branches in Meyrin and Sion;
  • idros SA, Rue des Marchandises 13, 1260 Nyon ;
  • NJ Informatique Sàrl, Rue du Valentin 54, 1400 Yverdon-les-Bains ;
  • Filaos SA, Rue des Marchandises 13, 1260 Nyon ;
  • BIP Informatique SA, Rue de l'Avenir 11, 1950 Sion and
  • Novatix SA, Rue des Marchandises 13, 1260 Nyon.

1.2 The "Provider"

means the Ansam Group entity (i.e. either Ansam Holding SA or an Affiliated Company) that has entered into a Contract for Services with the Customer.

1.3 The "Customer"

means the contracting customer designated in the Contract for Services (defined below).

2. General

2.1 Scope of application

Ansam Group entities provide all types of products and services related to the IT and telecommunications sectors, ("Products and Services"), including the following Products and Services:

  • Cloud solutions and services;
  • Infrastructure integration products and services (such as migration, server virtualization, desktop virtualization (VD), Windows infrastructure, messaging, storage, backup and archive, Microsoft 365 and systems integration);
  • Managed services related to the operation, maintenance and functioning of the customer's IT and communication systems (such as secure hosting, network and telecom management, server management, IT asset management, service management), monitoring, overflow services (infrastructure monitoring, incident management) and service desk;
  • Security and network products and services (such as antivirus, compliance audit, training and awareness services, strong authentication, firewall - UTM, LAN networks, wifi, VPN);
  • The sale of third-party hardware and software as well as third-party IT, connectivity and telephony services and related maintenance;
  • Analysis, consulting, implementation, modernization and maintenance services in the fields of IT, digitalization and omni-commerce; and
  • Delegation (LSE) and permanent placement of IT staff.

2.2 Services contract

The Products and Services that the Service Provider undertakes to supply to the Customer are described in an offer. Any offer which does not specify a time limit for acceptance is valid for 30 (thirty) calendar days from the date shown on the offer, with the exception of promotional offers which are limited to the duration of the promotion.

The contract ("Service Agreement") is entered into upon receipt by the Service Provider of (i) the offer countersigned by the Customer and confirmed by the Service Provider or (ii) the Service Agreement signed by the Customer, in both cases within the time limits set forth in the offer or, failing that, within the time limits set forth in Article 2.2.

 
2.3 General terms and conditions

These General Terms and Conditions ("GTC") apply to all Products and Services provided to the Customer by Ansam Holding SA and/or any Affiliated Company(ies), irrespective of the Service Provider with whom the Customer enters into the Service Agreement. Ansam Holding SA and/or any Affiliated Company of Ansam Group may provide in whole or in part the Products and/or Services designated in the Service Agreement with the Service Provider.

The Customer's general terms and conditions, in particular those appearing on the order or otherwise communicated to the Service Provider, are not applicable.

The Service Agreement and the GTC collectively constitute the "Agreement".

 

3. Costumer obligations

  • Documents and information. The Customer is required to provide all documents and information necessary for the proper performance of the Contract.
  • Access codes. The Customer is required to provide all access codes and passwords (including user codes for applications and data) necessary for the proper performance of the Contract.
  • Access to premises. The Customer must provide the Service Provider with all access to its premises to the extent necessary for the performance of the Contract.
  • Cooperation. The Customer undertakes to cooperate with the Service Provider in good faith and in such a way as to enable the proper performance of the Agreement. The Customer shall provide the personnel and infrastructure necessary for the proper performance of the Agreement as requested by the Service Provider.
  • Relocation. The Customer shall inform the Service Provider of (i) any relocation of the equipment, hardware and software covered by the Service Agreement and for which the Service Provider is responsible or (ii) any modification to the equipment, hardware or software covered by the Service Agreement and for which the Service Provider is responsible.
  • Equipment, hardware and software maintenance. Equipment, hardware and software must be covered by a manufacturer's or publisher's maintenance contract. Software must be covered by a valid license.

4. Obligations of the Service Provider

4.1 General

The Service Provider's obligations are specified in the Contract.

4.2 Additional Products or Services

If, at the Customer's request, the Service Provider increases the scope of its Products and/or Services, the fees and costs of providing such additional Products and/or Services will be invoiced separately by the Service Provider (or the Affiliated Company that provided the Products and/or Services) at its regular rates or on the basis of a complementary offer, unless otherwise agreed in writing. If additional services are required as a result of erroneous or incomplete information supplied by the Customer or as a result of the Customer's failure to comply with the obligations described in Article 3, the refusal to provide such additional services shall release the Service Provider from the obligation to provide the services promised in the Service Agreement. Nevertheless, the Customer shall be liable for all fees and costs incurred to date, including preparatory costs for undelivered or partially delivered services.

4.3 Subcontractors

The Service Provider may delegate the provision of the Products and Services, in whole or in part, to Ansam Holding SA and/or any Ansam Group Affiliate or to any third party, without the prior consent of the Customer. The Service Provider undertakes, in such a case, to impose on the Ansam Group entity or third party subcontractor obligations consistent with those set forth in the Agreement and to ensure that the subcontractor complies with the terms of the Agreement, insofar as they are applicable to it. The use of subcontractors shall not relieve or reduce the Service Provider's obligations under this Agreement. The Service Provider shall be liable for the acts and omissions of subcontractors to the same extent as if they were its own.

Subcontractors that are Ansam Group Affiliates may send invoices for the supply of Products and Services directly to the Customer. However, Ansam Group is solely responsible for the payment of subcontractors that are not Ansam Group Affiliates, which have no right to direct payment against the Customer.

5. Deadlines

The Service Provider shall not be responsible for meeting the deadlines agreed in the Service Contract, where applicable, in the event of :

  • changes or increases in the contractual scope of Products and Services ;
  • delays by the Customer in fulfilling its obligations stipulated in Article 3 or
  • external circumstances for which the Service Provider cannot reasonably be held responsible; or
  • the occurrence of a Force Majeure event.

6. Prices and Terms of payment

6.1 Prices

The Customer undertakes to pay the invoices for the Services rendered and/or Products supplied, i.e. the prices agreed in the Contract, whether on a fixed-price and/or time-and-a-half basis.

The Service Provider has the right to increase its hourly rate and prices, subject to 45 (forty-five) calendar days' notice. If the Customer does not contest the increase within 30 (thirty) calendar days of notification, the increase is deemed to have been accepted.

6.2 Hourly rate increases

Unless otherwise specified in the Service Contract, services performed outside working days and after 7.00 pm or before 7.00 am are subject to the following surcharges:

Increase Period

  • Monday to Friday between 7 p.m. and 7 a.m. + 50%
  • Saturday + 50%
  • Sundays and public holidays + 100%

6.3 Travel expenses

Travel costs to the customer's site include travel time and travel expenses and are invoiced as follows:

  • For operations in the cantons of Vaud, Geneva, Valais, Fribourg and Neuchâtel: flat-rate round-trip charge of CHF 90.
  • For operations in another canton: CHF 1.50 per km.

6.4 TVA and taxes

All Services are net of taxes. The Customer is responsible for the payment of all applicable taxes (VAT, customs duties, sales, use or withholding taxes, or other similar taxes, fees or charges), whether now or hereafter enacted, and whether imposed or based on the provision, sale or use of the Services ("Taxes"). If the Service Provider has a legal obligation to pay or collect Taxes for which the Customer is liable under this Article, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Service Provider with a valid tax exemption certificate authorized by the relevant tax authority.

6.5 Billing

The Service Provider shall invoice the Products and Services rendered and the costs incurred in accordance with the schedule specified in the Service Contract.

In the absence of an express provision in the Service Contract :

  • Services provided on Fee-for-services basis : Invoices for services provided on a fee-for-service basis are invoiced at the end of each month. The Service Provider invoices for the amount of time spent performing the service at the rate defined in the Service Contract. Time spent includes all activities related to the performance of the service, including preparation and planning, appointments with the Customer, problem solving and research and development. If a price estimate has been given to the Customer, the final price may be significantly different.
  • Fixed-price services: Fixed-price services are invoiced at the end of each month. Lump-sum services in excess of CHF 10,000 per annum are invoiced as follows: (i) 50% when the Contract is signed or when the order is placed, and (ii) 50% when the services are delivered.
  • Support and maintenance : Support and maintenance are invoiced for the contractual period of 12 (twelve) months before the start of the contractual period, at the latest on the last day before the start of the 12 (twelve) month period.
    Annual and recurring fees for support and maintenance: The price stipulated in the offer or Contract is based on estimated volume. The price may be adjusted every 6 months according to the actual volume consumed.
    Cloud solutions: Cloud solutions are billed monthly on the basis of actual consumption and/or volume, as measured by the Service Provider.
  • Equipment, hardware and software: A deposit of 60% is due on signature of the Contract and the balance of 40% is due on delivery of the equipment, hardware and/or software(s). In the event of non-payment of the deposit, the Service Provider has the right, at its sole discretion, not to deliver the equipment, hardware and/or software(s). Transfer of ownership shall pass to the Customer upon full payment of the equipment, hardware and/or software(s) by the Customer to the Service Provider. Until full payment, the Service Provider has the unilateral and discretionary right to require at any time the registration of a reservation of title in the appropriate register, where the equipment, hardware and/or software(s) will be located, and the Customer hereby irrevocably accepts such registration in advance.
  • Third-party solutions (direct): Third-party solutions, such as equipment, hardware and/or software, are invoiced according to the specific conditions applicable to each manufacturer or publisher.
  • Deposits (Time Book). The Customer may make a deposit as an advance payment for Services. This deposit will be credited to the Customer for payment of future Services or Products. The Customer shall make the deposit requested by the Service Provider, or provide another guarantee, of payment for Services or Products. The deposit will be retained by the Service Provider as a guarantee of payment for the Services or Products. The Customer is subject to the credit limit ("Credit Limit") specified in the Service Agreement. The Credit Limit may only be changed with the written approval of the Service Provider. The Service Provider has the right to increase or reduce the Credit Limit at any time, subject to at least 3 (three) days' prior written notice to the Customer. At any time, if the Service Provider determines that the sum ("Fees to be Paid") of (i) the total amount of unpaid invoices, and (ii) the amounts corresponding to the use of the Services not yet invoiced to the Customer, exceeds the Credit Limit then in effect, the Service Provider has the right to request, in writing, that the Customer make immediate payment by electronic transfer (or by any other method accepted by the Parties) of the amount required: (i) to reduce the Charges Payable to an amount below the Credit Limit and (ii) to ensure that the Credit Limit is not exceeded before the due date of the next invoice. Upon receipt of the request, the required amount becomes immediately due and payable by the Customer within 3 (three) days of receipt of the request. If the Customer has not made payment by the due date, the Service Provider is entitled to suspend and/or terminate the Services without further notice. If no use is made of the deposit for a period of 12 months, the balance becomes the property of the Service Provider.

6.6 Payment terms and interest on arrears

Invoices from the Service Provider and/or the Affiliate who provided the Services and/or Products are payable net 10 (ten) days from the date of invoice .

In the event of late payment, a reminder fee of CHF 20 will be charged for the second reminder, and CHF 50 for the third reminder. In addition, overdue invoices bear interest at 5% p.a. from the 31th day after the invoice date, and the Customer is automatically placed in default (without a reminder being issued). In the event that the amounts due and payable are not paid to the Provider or the Affiliated Company that issued the invoice within 60 (sixty) days from the invoice date, Ansam Holding SA and all Ansam Group Affiliated Companies are entitled to suspend the supply of all Products and Services to the Customer.

Unless the Service Provider receives a written complaint from the Customer within 30 (thirty) days of receipt of the invoice, the invoice is deemed to have been accepted by the Customer and constitutes an acknowledgement of debt within the meaning of Article 82 of the Swiss Federal Debt Collection and Bankruptcy Act. Objection to an invoice within the aforementioned period does not release the Customer from his obligation to pay it on the due date. Ansam Group Holding SA and/or any Ansam Group Affiliated Company may offset any amount owed by the Customer against any claims the Customer may have against Ansam Group Holding SA and/or any Ansam Group Affiliated Company.

7. Acceptance and warranties

a. Incombinations
The Customer shall regularly and promptly check the Products and Services supplied to him (software parts, test results, documentation). In the event of defects, the Customer shall immediately inform the Service Provider in writing.

b. Common control
If it so wishes, the Service Provider may request that a joint inspection be carried out upon receipt of the Products and Services. The Service Provider shall invite the Customer in good time for this purpose. The inspection and its results are recorded in a report signed by both parties. The parties may also agree to partial acceptance.

c. No defects
If no defects are found during the inspection, the service is deemed to have been accepted when the report is signed.

d. Minor defects
If minor defects are found during the inspection, the service is deemed to have been accepted at the time the report is signed, unless otherwise specified. The Service Provider will correct any defects found; this will be done within a reasonable period of time agreed by the parties. Unless otherwise agreed by the parties, a defect is considered minor when it does not affect the use of the services to be accepted.

e. Serious defects
If serious defects are found, acceptance is postponed. The Service Provider will diligently rectify the defects found (or replace the defective Product or Service, at its discretion) and will invite the Customer to a new inspection in good time. If serious defects are found during this new inspection, the results will be recorded in a report signed by both parties. Unless otherwise agreed by the parties, a defect is considered to be serious if it affects the use of the services to be accepted. In such a case, the Service Provider, at its sole discretion, will (i) repair, (ii) replace or (iii) refund or reduce the price of the Product supplied.

f. No control
If the customer refuses to take part in the joint control meeting even though the required conditions have been met, despite a reminder and a reasonable extension period, the service is deemed to have been accepted.

g. Exclusion
Excluded from the warranty are damages resulting from wear and tear, failure to follow operating instructions, excessive or inappropriate loading, use of unsuitable supports or any other reason for which the Service Provider cannot be held responsible.

Any warranty shall be excluded if the errors or defects are attributable to (i) the Customer (or third parties) carrying out modifications or repairs to the Products or Services which are the subject of the Contract, (ii) the Customer failing to comply with instructions for use or operation or precautions which may reasonably be expected of a Customer in connection with the use or operation of the Products or Services, (iii) in the event of a defect, the Customer does not immediately take appropriate measures to reduce the damage and give the Service Provider the opportunity to remedy it, (iv) failures by third parties (e.g. telecommunication provider) in connection with the use or operation of the Products or Services, (v) the Customer's failure to take appropriate measures to reduce the damage and give the Service Provider the opportunity to remedy it. (iv) failures of third parties (e.g. telecommunications provider) in connection with the operation of the Service or Product, or (v) malicious attacks by third parties which the Service Provider was not responsible for preventing or the effects of which could not reasonably have been avoided by the Service Provider.

h. Warranties for resold products
The warranty period for third-party Products resold by the Service Provider shall be the warranty period provided by the third-party manufacturer or publisher.

i. Exclusion of other warranties
All warranty claims of the Customer are exclusively and expressly governed by this Article. 7. Except for the representations and warranties expressly set forth in the Agreement, the Service Provider makes no representations or warranties, express or implied, statutory or otherwise, including warranties of merchantability, quality and fitness for a particular purpose or non-infringement of third party rights.

8. Staff

8.1 Assigning employees

The Service Provider decides, at its sole discretion, how to allocate the resources necessary to provide the Products and Services.

8.2 On-site services

The Customer undertakes to provide a workspace, access codes, connections, equipment and materials on its work environment deemed useful by the Service Provider to carry out the Services on site.

8.3 Replacing an employee

a. Non-satisfaction
The Customer may request the replacement of an employee or subcontractor by giving 30 (thirty) working days' notice to the Service Provider (or immediately in the event of just cause within the meaning of Article 337 of the Swiss Code of Obligations). In such a case, the Service Provider will replace the employee or sub-contractor concerned by another employee or sub-contractor who is reasonably acceptable to the Customer. The Customer undertakes to request such replacement on a reasonable basis only.

b. Absence or incapacity
In the event of the absence or incapacity of one of its employees, the Service Provider undertakes to make available to the Customer, within a reasonable period of time, an employee or sub-contractor of equivalent competence or to organize itself in such a way as to ensure that the service commitments are met.

8.4 Services Leasing (LSE)

a. Compliance with legal requirements
The hiring of services on a professional basis is subject to the Federal Law on Employment Services and the Hiring of Services (LSE). The Customer undertakes to comply with legal requirements, as well as with any collective labor agreements applicable to personnel. In particular, it shall comply with the provisions of the Labour Act relating to overtime. Without limiting the scope of the foregoing, in the event that the Customer requests the Employee to work overtime, it must first obtain the consent of the Employee and the Service Provider, in particular to ensure compliance with the maximum number of overtime hours per calendar year. The Customer is obliged to organize the employees' schedules in such a way as to comply with the legal provisions on breaks and rest periods, and to ensure that the employees comply with these provisions.

b. Employee commitment
The Customer is not entitled to hire (i) a candidate who has been presented to the Customer as part of a personnel search, or (ii) an employee who has been made available during the assignment.

The Customer is free to hire the employee at the end of the assignment. In this case, the Customer owes the Service Provider compensation if the assignment lasted less than three months and the employee returned to work for the Customer less than three months after the end of the assignment. In such a case, unless otherwise stipulated in the Service Agreement, the compensation shall be equivalent to the amount that the Customer would have had to pay the Service Provider by way of administration costs and profit for a three-month engagement. The Service Provider shall deduct from the compensation the amount already paid as administration costs and profit.

8.5  Service leasing (LSE) or occasional provision of employees

a. Entering working hours
The customer must confirm the hours worked by the employee at the end of each month. The employee must enter and confirm his/her actual working hours. If the employee has not confirmed the hours correctly, the customer may refuse to enter the hours, then modify and confirm them. In this case, the customer must justify his decision. The employee is then informed of the change in working hours. If the Customer does not approve the working hours in good time, the working hours duly entered by the employee, or the working hours specified for the assignment in the Service Agreement, are deemed approved and serve as the basis for invoicing. The Customer must immediately notify the Service Provider in writing of any change in the working hours and/or duration of the assignment in relation to the Contract for Services.

b. Liability for damage
The Service Provider's employees do not work for the Customer on the basis of a contract of employment or a mandate; the Service Provider is therefore in no way liable to the Customer for the results of the services provided by the employees. The Service Provider is not responsible for the instruction or supervision of the seconded employee, but only for the correct selection of the employee. The employee shall be liable to the Customer for all loss or damage caused to the Customer intentionally or through negligence. The Customer shall be liable for all loss or damage caused to the Contractor at the place of work. The Customer assumes responsibility for all loss or damage caused to a third party as a result of the employee's actions. It is the Customer's responsibility to take out the necessary insurance.

c. Instructions and supervision
The Customer shall exercise full powers of direction and control over the performance of the work in respect of the employee provided. In particular, the Customer shall comply with the statutory regulations and provisions relating to health and safety at work. The employment relationship may only be terminated by the Service Provider. The Customer undertakes to notify the Service Provider in writing without delay of any circumstances that might justify dismissal of the employee for just cause.

d. Work equipment and workplace safety
The customer undertakes to provide the employee with the equipment, materials, etc. required to carry out the assignment. It is the Customer's responsibility to take all necessary safety measures and, in particular, to instruct the Contractor accordingly.

9. Proprietary rights

9.1 Definition

"Intellectual Property Rights" means all intellectual property, including patents, designs, trademarks and service marks, copyrights, domain names, trade names (whether such rights are registered, trademarked or unregistered), inventions, designs, computer programs, data, formulas, algorithms, software (source and object codes), user interface designs, architecture, know-how, goodwill and applications, as well as the right to apply for protection of each of the aforementioned rights, (whether owned by a party or licensed to said party by a third party).

9.2 Intellectual property rights and pre-existing data

The Customer has and shall exclusively retain all rights and interests in all pre-existing Customer Intellectual Property Rights and Customer Data. The Service Provider has and shall exclusively retain all rights and interests in and to all of the Service Provider's Intellectual Property Rights and pre-existing Service Provider Data.

9.3 Rights to Service results

The Customer becomes the owner of the Intellectual Property Rights resulting from the supply of the Products and Services by the Service Provider, provided that all invoices have been paid in full. In the event of partial payment, all Intellectual Property Rights resulting from the supply of the Products and Services by the Service Provider remain the full property of the Service Provider. Each party remains free to use or dispose of ideas, procedures and methods which are not legally protected. Software documentation (in particular documented source code with overview, data and functionality model and functionality description) and other necessary documents are delivered to the Customer upon receipt of full payment of the relevant invoices.

The Service Provider is authorized to use free of charge, in perpetuity and worldwide, for the purpose of performing services on behalf of other customers or generally to conduct its business, for itself or third parties, the Intellectual Property Rights, in particular the ideas, concepts, processes and know-how it has developed or acquired in the course of performing the Services Agreement or through joint work with third parties or the Customer, regardless of whether or not such Intellectual Property Rights have been transferred to the Customer under the terms of this Agreement.

The Customer shall not (i) create derivative works based on the Services, (ii) copy, frame or mirror any part or content of the Services, with the exception of copying or framing its own intranet, or (iii) access the Services for the purpose of creating a competing service or copy any features, functions or graphics of the Services.

9.4 Rights and obligations of the parties

Neither party shall, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party's property.

The reproduction or use by one party, for purposes other than the performance of this Agreement, of Intellectual Property Rights belonging to the other party, is prohibited without the prior written authorization of the latter.

Each party undertakes to comply scrupulously with the conditions and obligations arising from the Intellectual Property Rights and licensing or other similar rights relating to the software it uses. In particular, it will not in any way infringe the other party's ownership, licensing or similar rights.

If a party authorizes the other party to use system software, application software or other elements protected by an Intellectual Property Right, on which it holds a license or other similar right, the latter undertakes to scrupulously respect this authorization.

9.5 Rights to Over-the-Counter software

a. Software acquisition
The Customer may be granted the right to use certain software which shall be governed by the terms of the relevant software license. The Customer authorizes the Service Provider to enter into a software license on behalf of the Customer as a client to satisfy the terms of the software license and the terms of the third party software license in order to perform the Services in accordance with the Agreement. The Service Provider does not warrant or support "Non-Ansam Applications" (i.e. online applications and offline software products that are provided by entities or persons other than the Service Provider and are clearly identified as such, and that interact with the Services), whether or not designated by the Service Provider as "certified" or similarly, except as specified in the Service Agreement.

The Service Provider or third parties retain the Intellectual Property Rights to the over-the-counter software.

Depending on what has been agreed, the right to use over-the-counter software is granted for an unlimited period, or for a fixed or indefinite period (until termination). The customer may make copies of standard software for backup and archiving purposes. The manufacturer's license terms apply insofar as they do not conflict with the Agreement.

b. Non-Ansam applications and customer data
If the Customer installs or activates Non-Ansam Applications for the use of the Services, the Customer acknowledges that it may authorize the providers of such Non-Ansam Applications to access its Data as required for the interoperability of such Non-Ansam Applications with the Services. The Service Provider shall not be liable for any disclosure, modification or deletion of Customer Data resulting from such access by providers of Non-Ansam Applications.

c. Delimitation of responsibilities
The Service Provider is solely responsible for the management of the server host hardware, including storage and, at the Customer's request and with the Service Provider's agreement, for the provision of the software. The Customer is responsible for the management and operation of the software, including but not limited to patch management, upgrades, antivirus, system security, application programs and data. The Customer is also responsible for the management and configuration of its use of the Services, including but not limited to the administration of user access and security controls.

9.6 IP addresses

The parties acknowledge and agree that the Service Provider may grant the Customer the right to use certain IP (Internet Protocol) addresses owned and/or licensed by the Service Provider in connection with the provision of the Services. The Customer acknowledges and agrees that in the event of termination of the Agreement for any reason whatsoever, the Customer's right to use such IP addresses shall automatically terminate.

9.7 Customer applications and codes

If the Customer, a third party acting on the Customer's behalf or a user creates applications or program code using the Services, the Customer authorizes the Service Provider to host, copy, transmit, display and adapt such applications and program code, solely to the extent necessary for the Service Provider to provide the Services in accordance with the Agreement. Subject to the foregoing, the Service Provider acquires no right, title or interest from the Customer or the Customer's licensees under this Agreement in such applications or program code, including any Intellectual Property rights therein.

9.8 Suggestions

The Service Provider is granted a royalty-free, worldwide, irrevocable and perpetual license to use and incorporate into its services or products any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including users, regarding the operation of the Services.

10. Data security and ownership

10.1 Safety measures

The Service Provider undertakes to maintain appropriate safeguards to protect the security, confidentiality and integrity of the Customer's Data (including any text, photo, sound, video, log files, documentation, data of employees, auxiliaries, suppliers, customers and contracting parties, collectively the "Data"). The Service Provider undertakes not to (i) modify the Customer Data, (ii) disclose the Customer Data unless required to do so by law in accordance with Article 12.2 or if expressly authorized by the Customer in accordance with Articles 12.1 or 12.2 or (iii) access Customer Data except to provide the Products and Services and to prevent or resolve problems in the provision of the Products and Services or of a technical nature or at the request of the Customer as part of technical support.

The Service Provider cannot guarantee that (i) the network and infrastructure are fully protected against unauthorized access and (ii) spamming, Malicious Code, spyware, phishing attacks or any other means of causing harm will not impede the use of the Products and Services, damage the Customer's infrastructure or Data, or cause damage to the Customer in any way.

The Service Provider is entitled to check devices connected to the network and infrastructure for security defects, to set up filters and to take other measures in order to protect the Service Provider's infrastructure and that of third-party providers from illegal or harmful content or software.

If a risk of unauthorized access or a risk to the Data is discovered, the Service Provider shall promptly inform the Customer.

10.2 Risk of interception or alteration

The Internet is, in itself, an open and insecure means of communication. Any Data transmitted over the Internet by a Customer may be intercepted or altered. The Service Provider neither gives nor assumes any warranty as to the security or integrity of any Data transmitted by a Customer using the Services or via the Internet, including any Data or information transmitted via a server designated as "secure".

10.3 Data Storage

The Customer acknowledges and accepts that the Service Provider is not responsible for any Data stored by the Customer in connection with the use of the Services, including cloud platforms, unless otherwise stipulated in the Agreement.

10.4 Misuse of Services

The Customer agrees not to (i) make the Services available to anyone other than a user, (ii) sell, resell, loan or rent the Services, (iii) use the Services to store or transmit material or messages that are defamatory, abusive, excessively violent, obscene, (iv) use the Services to store or transmit viruses, worms, software bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs ("Malicious Code") (v) interfere with, or disrupt, the protection or performance of the Services or any third party data contained therein or (vi) attempt to gain unauthorized access to the Services or systems or networks in connection with the Services, (vii) transmit or distribute any material containing a fraudulent offer for goods or services or any advertising or promotional material containing false or misleading representations or warranties, misleading or deceptive or (viii) transmit or distribute unsolicited e-mails where such e-mails are reasonably likely to give rise to complaints (spam), such facts to be determined reasonably by the Service Provider in accordance with standards generally accepted by the Internet community.

The Customer undertakes to follow any security recommendations made by the Service Provider (antivirus, firewall, etc.) or, failing this, to assume, to the full discharge of the Service Provider, the possible consequences of its choice not to follow such recommendations.

10.5 Unauthorized or fraudulent use of the Services

The Customer undertakes to take all reasonable steps to prevent any unauthorized or fraudulent use of the Services (unless the acts or omissions are caused by the Service Provider) and to inform the Service Provider immediately of any such use. The Customer is responsible for the payment of all Services and costs related to the Services, even if such costs and charges are incurred by or in connection with any unauthorized or fraudulent use of the Services.

10.6 Service interruption

In the event that the Service Provider's infrastructure is damaged (or threatened to be damaged) through a Customer's address (e.g. by virus or hacking) or in any other way, the Service Provider is expressly authorized to immediately interrupt the Services and must immediately inform the Customer.

10.7 Customer responsibility

The Customer (i) is responsible for the accuracy, quality and legality of the Customer Data, as well as for the means by which it has acquired the Data, (ii) undertakes to use commercially reasonable efforts to prevent unauthorized access to or use of the Services and to notify the Service Provider immediately of any unauthorized access or use, and (iii) undertakes to use the Services in compliance with the Agreement and applicable laws. The Customer is responsible for protecting its internal network from unauthorized access via the Internet and for ensuring its security, unless otherwise stipulated in the Agreement.

10.8 Data ownership

Customer Data is and will remain the exclusive property of the Customer and is considered to be confidential information of the Customer subject to business secrecy and banking secrecy where applicable.

Similarly, information produced by the systems, such as application logs, tables, reports, accounts, printed documents of all kinds (account statements, etc.), are the exclusive property of the Customer.

Without the prior written approval of the Customer, the Data shall not be :

  • used by the Service Provider or its employees or auxiliaries other than in the strict performance of its obligations under the Agreement, which implies the strict segregation of the Data of other customers of the Service Provider;
  • disclosed, sold, assigned, handed over or otherwise made accessible to third parties by the Service Provider or its employees or auxiliaries.

The Data Privacy Policy is available on the Ansam Holding SA and Affiliated Companies website.
 

11. Liability of the Service Provider

11.1 In principle

The Service Provider agrees to indemnify the Customer against any action, demand, suit or proceeding ("Action") made or brought by third parties and shall indemnify the Customer for all damages, costs and expenses including reasonable attorneys' fees ("Damages") caused by the gross negligence, fraud or deceit of the Service Provider (including its employees, auxiliaries and those of any Affiliated Company), to the exclusion of Damages caused by other forms of negligence. The Service Provider is not liable for the acts or omissions of subcontractors selected or imposed on the Service Provider by the Customer.

The Service Provider expressly excludes all liability for : (i) damage, directly or indirectly suffered by the Customer resulting from a breakdown or malfunction of the Customer's computer system or (ii) malfunction or instability of the system resulting from bugs in software supplied by the Customer or third parties.

11.2 Consequential damages

Notwithstanding any other clause contained in these GTC or the Service Agreement, the Service Provider shall not be liable for any indirect, consequential or incidental damages (including, without limitation, damages for loss of profits, revenue, goodwill, anticipated savings, goodwill, Customer Data, for interference with business or for the cost of purchasing replacement products and services) resulting from the performance or non-performance of the Contract, whether or not caused by the acts or omissions of the Service Provider, its employees, auxiliaries or subcontractors, and whether or not the Customer has been advised of the possibility of such damages.

11.3 Limitation of liability

The Service Provider's liability for any Damage arising out of or in connection with this Agreement shall be limited to the amount actually paid by the Customer in the 3 (three) months prior to the incident for the Products and Services causing the Damage, provided that in no event shall the Service Provider's aggregate liability arising out of or in connection with this Agreement exceed the total amount paid by the Customer under the Agreement.

11.4 Bodily injury or death

The Service Provider's liability for personal injury or death caused by the Service Provider's negligence is not limited.

12. Confidentiality and Privacy

"Confidential Information(s)" means any information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether such information is oral or written, designated as confidential or to be understood as such by its nature and the circumstances of disclosure. Confidential Information does not include information which: (i) is independently developed by the Receiving Party; or (ii) is lawfully received by the Receiving Party free of any obligation to keep it confidential; or (iii) becomes generally available to the public by any means other than by breach of this provision.

12.1 Principles

Confidential Information shall remain the property of the party concerned. Each party shall take the same care as it takes to protect its own Confidential Information of a similar nature (but in no case to a lesser degree than reasonable care requires) (i) not to use any Confidential Information of the Disclosing Party outside the scope of this Agreement and (ii) to limit access to the Disclosing Party's Confidential Information to its employees and auxiliaries (and, with respect to the Service Provider, also its subcontractors and their employees and auxiliaries) and to its legal, accounting and financial advisors (the "Representatives"), on a need-to-know basis. Each party shall refrain from disclosing the contents of the Confidential Information to any other person, unless the other party has given its prior consent thereto or unless required to do so by applicable law or a court order. Each party shall be bound by this obligation, even after termination or expiration of the Agreement, as long as the Confidential Information concerned has not become public, unless the Receiving Party specifically agrees to a waiver of confidentiality. Each party may disclose Confidential Information only to those of its Representatives who are informed of the strictly confidential nature of the Confidential Information and who agree to act in accordance with the terms of the Agreement as if each Representative were a party to the Agreement. Each party is at all times responsible for compliance by its Representatives with the obligations set out in the Agreement.

This confidentiality undertaking is valid for the duration of this Contract and for a period of 5 years following the end of the Services Contract.

12.2 Exceptions

The Receiving Party is authorized to disclose Confidential Information of the Disclosing Party if disclosure is required by law, a stock exchange authority or a governmental authority, provided that the Receiving Party gives prior notice to the Disclosing Party that such disclosure is required (to the extent permitted by law) and provides reasonable assistance to the Disclosing Party if it wishes to contest the disclosure, at the Disclosing Party's expense. If the Receiving Party is required to disclose the Disclosing Party's Confidential Information in connection with civil proceedings to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for the reasonable costs of assembling, and providing secure access to, such Confidential Information.

The Customer acknowledges and agrees that the Service Provider may hold, use, process and/or transfer Confidential Information of the Customer and/or its employees (including to affiliates, third parties and abroad): (i) in connection with the provision of Products or Services; (ii) to incorporate such Confidential Information into a Database controlled by the Service Provider for accounting, billing, operational maintenance and technical support, fraud detection and customer and market prevention and analysis and reporting purposes; and (iii) to communicate with the Customer by oral, mail, or e-mail regarding the Service Provider's Products and Services. If the Customer considers, in the course of providing Products or Services under these GTC, that the Service Provider will have access to Data that the Customer does not want the Service Provider to be able to capture, the Customer must encrypt such Data so that it is unreadable.

13. Non-sollicitation

The Customer undertakes, both on its own behalf and on behalf of its direct or indirect affiliates, of which it is the guarantor, throughout the duration and for 12 (twelve) months following the termination or expiry of the Contract for Services not to, directly or indirectly, either on its own behalf or on behalf of third parties, engage, attempt to engage, solicit or induce, employees or consultants of the Provider or an Ansam Group Affiliate (or employees or consultants of the Provider or an Ansam Group Affiliate less than 12 (twelve) months prior to engagement), to become an employee or consultant of the Customer, subject to Article 8.4b.

In the event of breach of this obligation, the Customer undertakes to pay the Service Provider compensation equal to the last twelve monthly salaries of the employee(s) or consultant(s) engaged in breach of this obligation.

14. Entry into force and Termination

14.1 Entry into force

Unless otherwise stipulated in the Service Contract, the Contract comes into force on signature.

14.2 Early termination

The Service Provider may terminate the Contract in advance by giving notice to the Customer:

  • With immediate effect, in the event of insolvency, the filing of a petition for bankruptcy, the notification of a committal to bankruptcy, a petition for debt-restructuring moratorium or composition, the filing of a petition for adjournment of bankruptcy, dissolution or liquidation (voluntary or by law) of the Customer;
  • With immediate effect, in the event of a general sale (or proposed sale) by the Customer of its assets, an arrangement with or for the benefit of its creditors or negotiations with one or more of its creditors with a view to restructuring, adjusting or staggering its debts;
  • With immediate effect, in the event of cessation or suspension of payments by the Customer ;
  • By giving 30 (thirty) calendar days' notice, in the event of non-payment of any sum due (including interest) under the terms of this Contract within the period and in the manner provided, after having been given prior notice of default by the Service Provider; or
  • With 30 (thirty) calendar days' notice, in the event of breach by the Customer of a material obligation of this Agreement. If the breach is reparable, the Service Provider must first put the Customer on notice and request full reparation of the breach. If the breach is not fully remedied within 10 (ten) calendar days of the formal notice, the Contract may be terminated within the period stipulated above, the 10 (ten) day period not being added to the 30 (thirty) day period. A breach of any obligation shall not constitute a breach which the Customer would remedy in accordance with the provisions of this Agreement.

14.3 Consequences of termination

In the event that the Service Provider terminates or suspends a Contract for one of the reasons mentioned in Article 14.2, the Customer agrees to pay the Service Provider for the Services for the period remaining until the term agreed in the Contract.

14.4 Data Restitution

At the Customer's request, notified at least 30 (thirty) days prior to termination of the Services, the Service Provider will make the Customer's Data available to the Customer in its original format via the recovery service and against payment of the corresponding recovery service fee. Unless such a request is notified, the Service Provider is under no obligation after termination of the Services to retain or return the Customer's Data. In addition, the Service Provider may, after termination of the Services, except in cases prohibited by law, delete all Customer Data contained in the Service Provider's system or otherwise in the Service Provider's possession or control.

14.5 Clauses surviving the end of the Contract

Articles 6 (Terms of payment), 7 (Acceptance and Warranties), 9 (Proprietary Rights), 11 (Service Provider's Liability), 12 (Confidentiality), 13 (Non-solicitation), 14 (Entry into force and termination), 19 (Invalidity), 20 (Non-waiver), 21 (Assignment) and 22 (Applicable Law and Jurisdiction) shall continue to apply after termination or expiry of this Agreement.

15. Reversibility

Upon receipt by either party of a notice of termination of the Contract, the reversibility phase commences. The reversibility phase ends on expiry of the notice period or any other date agreed between the parties.

During the reversibility phase, the Service Provider undertakes to assist the Customer with the transition to another Service Provider, the transfer of documentation relating to the Products and Services provided, and by providing the Customer with the necessary access.

The financial terms and conditions of payment for this support will be agreed between the parties.

At the end of the reversibility phase, the Service Provider is released from all responsibility for the provision of the Products and Services described in the Service Agreement.

16. Force majeure

The Service Provider shall not be liable for damages resulting from delays or limitations of the Products and Services which cannot reasonably be attributed to it, and no compensation shall be granted if performance is delayed or prevented due to the occurrence of an event of force majeure. An event of force majeure is any event beyond the reasonable control of a party, including an act of war, earthquake, hurricane, flood, fire or any similar incident such as an embargo, riot, terrorism, sabotage, strike, insurrection, labor unrest, intervention by authorities, government action, epidemic, inability to obtain materials or transportation, power failure, legal or regulatory restriction, court injunction, conviction, Internet network failure, delays in supplies or services from third parties due to the same events, or any other event of a similar nature.

If the Service Provider is unable to provide the Products and Services for a period of more than 30 (thirty) consecutive calendar days due to an event of force majeure, either party may cancel the Services concerned by giving written notice to Products and Services party. In such an event, both parties shall be released from any liability in respect of the Products and Services concerned.

17. Modifications

Any amendment to the Service Agreement must be made in writing.

Ansam Group reserves the right to modify these GTC at any time, subject to 30 (thirty) days prior written notice to the Customer. The Customer may, within 30 (thirty) days of receipt of Ansam Group's notice, contest the new GTC in writing. Until such time as an agreement is reached, the previous GTC shall remain in full force and effect with respect to such Customer.

If no objection is received within the aforementioned period, the new terms and conditions are deemed to have been accepted by the Customer.

18. Exceptions to the General Terms and Conditions

Any deviations from these GTC must be agreed and defined in writing in the Contract for Services or any amendments there to.

In the event of any discrepancies between the provisions of the Service Contract and the GTC, the provisions of the Service Contract shall prevail.

19. Nullity

The total or partial nullity of any provision of the Contract shall in no way affect the validity of the remainder of the Contract. In the event of nullity, the parties will agree without delay on a new regulation which best corresponds to the purpose pursued by the null or partially null provision. The partially invalid provision will remain in force to the extent that it is valid. The other clauses of the Contract will remain valid and binding to the greatest possible extent.

20. No Waiver

The non-performance or non-enforcement by any party of any provision of this Agreement shall not be deemed a waiver of any such provision or right nor shall it have the effect of limiting the exercise or enforcement of any such provision or right in the future.

21. Transfer

The Customer may not assign the Agreement, or any rights or obligations arising therefrom, without the written consent of the Service Provider. The Service Provider may assign the Agreement or any part thereof to an Affiliate or in connection with a reorganization, consolidation, merger or sale of all or substantially all of its assets. This Agreement shall be binding upon each party and its successors and permitted assigns.

22. Notification

Any notification sent by one party to the other may be made by e-mail, registered mail or express courier.

23. Applicable law and place of jurisdiction

This Agreement is governed by Swiss law. Any dispute between the parties arising out of or in connection with this Agreement shall be subject exclusively to the jurisdiction of the ordinary courts of the Canton of Geneva, Switzerland. Notwithstanding, the Service Provider reserves the right to submit any dispute to the jurisdiction of any competent court in application of the rules of conflict of laws.

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