• The customer shall actively support Ajila, its employees and the third parties engaged by it for the performance of the contract in every reasonable way to the extent required and in a timely manner. The customer undertakes to notify Ajila without undue delay of any malfunctions or other defects.
• During the use of the platform, the customer is obligated to use only current versions/patch versions etc. supported by the respective manufacturer. In particular, the customer must apply the latest security patches.
• Customer is responsible for protecting the security elements (namely passwords, authentication methods, etc.) provided to it by Ajila for use Platform.
• The customer shall bear all costs incurred by him in fulfilling his obligations to cooperate..
• Ajila will endeavor to perform its services even if the customer fails to comply with its support and cooperation obligations, but cannot guarantee performance.

• The customer shall pay the remuneration published on the platform or (depending on the agreement) provided for in the contracts for the services provided by Ajila. Ajila aims to make the platform available to customers free of charge by the end of May 2020. The free use of the platform does not obligate the customer to subsequently conclude a paid offer. Unless otherwise specified in the contracts, there is no automatic conversion of a free use into a paid use. The customer will be informed on the platform about changes in pricing.
• All prices are exclusive of taxes, duties and fees. All taxes, levies and/or duties, including but not limited to withholding taxes and/or withholding taxes, imposed by or on behalf of governmental authorities on transactions under these TOS shall be borne by Customer unless Customer provides evidence of an appropriate exemption. If Customer is required to withhold or deduct any such tax or charge from any payment under this Agreement, Customer shall increase the payment by such additional amount so that Ajila will receive, after such withholding or deduction, the amount that would have been paid in the absence of such withholding or deduction.
• Remuneration is due in accordance with the agreed payment schedule. In the absence of such a payment schedule, one-off payments are to be made in advance, recurring payments monthly in arrears. Ajila shall assert due claims by means of an invoice. Invoices are payable net within 30 calendar days.
• Incorrect invoice items do not entitle the customer to withhold payment of correct invoice items.
• The default of the customer occurs after the expiry of the payment deadline. The statutory default interest rate applies. If the customer is in default of payment, Ajila may make the performance of further services under the individual contracts conditional on the full payment of outstanding invoices and, at its discretion, also on advance payments or other securities.
• Services requested by the customer, the prices of which have not been specifically agreed, shall be invoiced according to the effective expenditure at the applicable hourly or daily rates.
• Unless otherwise agreed, travel, board and lodging expenses shall be borne by the customer and invoiced separately.

• Property in things:

Unless expressly agreed otherwise in writing, the contracts shall not provide for any transfer of ownership.

• Property rights and rights of use:

Ajila shall make Software or individual modules thereof available to Customer as Software as a Service ("Software" or "SaaS") on servers via an Internet connection within the scope of the Agreements and for specific purposes.

Ajila grants to the customer for itself the non-transferable, non-exclusive right to use the agreed services of Ajila. The content, scope and limitation of the territory of this right are set out in the contracts. In the case of services which, according to the contracts, are to be provided only for a certain period of time, this right is limited to the provision in these contracts.

All rights to existing intellectual property or intellectual property arising from the performance of the contract (copyrights, patent rights, know-how, etc.) relating to services provided by Ajila shall remain with Ajila or the authorized third party. Both are not restricted in the further exploitation and other use of such Intellectual Property and are under no obligation to the Customer. To the extent that the parties have created intellectual property jointly, they grant each other in perpetuity the authority to use and exploit these rights independently of each other without restriction, subject to the obligation of confidentiality.

In the case of software, the customer shall in particular refrain from reproducing the software in whole or in part, from creating software that is similar in terms of function or design, namely software that has a comparable "look and feel". Likewise, he shall refrain from any system access in order to change, extend, decompile, disassemble the software or otherwise produce the source code from the object code. Unless otherwise agreed in writing, the customer has no right to the source code and may not use or procure it. Customer acknowledges the existence of Ajila's and any third party's intellectual property in the Services provided by Ajila and will not do anything that may impair its value. It will, to the extent of its ability, prevent any unauthorized use. This paragraph shall survive the termination of the Agreements.

All rights to software, to the appearance, to applications and to content on its websites and other communication platforms (e.g. apps), in particular copyright and trademark rights, shall belong exclusively to Ajila.

• Generally:

Ajila performs its services professionally and diligently. A performance under a contract for work and services is only owed if the contracts explicitly state so.

• Warranty in kind for expressly agreed operating, maintenance and care services:

Ajila warrants to maintain expressly agreed service levels. Ajila cannot guarantee completely error-free, undisturbed or uninterrupted operation beyond this.

If expressly agreed, Ajila shall measure compliance with the Service Levels and report to Customer. This is deemed to be correct until proven otherwise. The customer may request insight into the measurement results and records relating to the customer. In the event of non-compliance with the Service Levels, only the consequences expressly agreed in this respect shall apply.

• Warranty of Rights:

Ajila warrants that its Services do not infringe any intellectual property rights of third parties in Switzerland (hereinafter "Intellectual Property Rights").

If a third party attempts to prevent the customer from using Ajila's services in accordance with the contract under the specified conditions of use on the basis of allegedly superior intellectual property rights, the customer shall notify Ajila thereof in writing within five calendar days. Provided that the customer notifies Ajila in due time and provides reasonable assistance, Ajila will, at its own discretion, either modify its services (including software) in such a way that they do not infringe intellectual property rights if all essential requirements of the customer are fulfilled, or procure for the customer at its own expense a licence from the third party or contest the third party claim. If a legal action is brought by the third party against the customer, the customer shall give Ajila sole control of the litigation and shall take all actions necessary for that purpose. Subject to this, Ajila will pay the costs of litigation (including reasonable attorneys' fees) and reimburse the customer for any direct loss resulting from a final judgment against the customer, subject to the limitation of liability under Clause 10. Customer will forfeit its rights under this warranty of title if it withdraws or fails to give Ajila control of the conduct of the litigation, including, without limitation, if it settles or admits third-party claims in whole or in part without Ajila's express consent. Ajila will not withhold such approval without good cause.

• Warranty for services and products of third parties:

Ajila is liable for the services of third parties commissioned by Ajila in the same way as for its own services. If the involvement or commissioning of a particular third party is desired or required, e.g. by customer or system specifications, as in particular in the case of specific software manufacturers, Ajila merely guarantees careful instruction and supervision of these third parties.

• Warranty Exclusions:

The warranty is excluded in the event of events or circumstances the causes of which are beyond Ajila's control and for which the customer, its users or third parties not commissioned by Ajila are wholly or partly responsible (e.g. changes to the software or customer software, faults emanating from the customer's network, improper use) and in the event of force majeure. The contractual warranties also do not extend to operating resources provided by the customer (namely software licenses), even if these were procured by Ajila for or on behalf of the customer.

Ajila does not warrant that IT systems operated by it can be used uninterruptedly and without error in all combinations desired by the customer, with any data, other IT systems and programs.

If the customer claims for itself or for third parties instructed by it authorizations to access systems or applications for which Ajila has operational responsibility and if the use of these authorizations may lead to breaches of contract (in particular to non-compliance with service levels), the burden of proof that the breach of contract was not caused by the customer or the third party instructed by it lies with the customer. Ajila is entitled to determine the technical and organizational framework conditions for such accesses.

Fault analyses, recommendations and remedies for faults for which the customer or third parties commissioned by the customer are responsible, which are based on errors in operating resources provided by the customer (in particular software licenses) or which are carried out due to incompatibilities of the operating resources provided by the customer in interaction with the infrastructure provided by Ajila, shall be carried out on a "best effort" basis and shall be invoiced to the customer according to effective expenditure.

• In the event of breach of contract, Ajila shall be liable for the proven damage, unless it proves that it is not at fault. For damage caused intentionally and by gross negligence, Ajila's liability is unlimited. In the case of slight negligence, Ajila's liability for personal injury is unlimited. In all other respects liability for damage to property and financial loss is excluded.
• In no event shall Ajila be liable for any indirect or consequential damages, including, without limitation, any lost profits or lost data or loss of reputation, or any claims by third parties.
• Ajila is furthermore not liable if the performance of the service is temporarily interrupted, wholly or partially restricted or impossible due to force majeure. Force majeure includes in particular natural events of particular intensity (avalanches, floods, landslides, etc.), warlike events, riots, unforeseeable official restrictions, epidemics and pandemics, etc. If Ajila cannot meet its obligations under the contract, performance of the contract or the date for performance of the contract will be postponed in accordance with the event that has occurred. Ajila shall not be liable for any damage suffered by the customer as a result of the postponement of performance of the contract.
• Any further liability provisions to the detriment of Ajila shall apply - also in documents taking precedence over these GTC - only if they expressly refer to the present provision.
• The above provisions apply to contractual as well as non-contractual claims.
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• • Privacy:

  Both parties undertake to comply at all times with the provisions of the Swiss Federal Data Protection Act within the scope of their own data processing. This also includes the implementation of appropriate technical and organizational security measures.

  The customer must ensure compliance with the relevant provisions by users who use Ajila's services within its own sphere of influence. The customer is responsible for informing the data subjects about the processing of data relating to them and, if necessary, for obtaining the necessary consents for this.

  Ajila collects, stores and processes only data that is required for the execution of the contract, for the maintenance of the customer relationship, namely for ensuring a high quality of service, for the security of operations and infrastructure, and for invoicing. Data that Ajila processes in the context of the User's use of the FES will be stored by Ajila for the duration of the availability of the relevant signature link (usually for 10 days). As soon as the period has expired, the link loses its validity and Ajila irrevocably deletes the associated data, irrespective of whether the relevant document has been signed by the respective Users or not.

  In connection with the conclusion and performance of the contracts, Ajila may obtain information about the customer and pass on data concerning the customer's payment behavior, use the customer's data for the needs-based design and development of its services and products and for customized offers, and process the customer's data for the same purposes within the Ajila Group.

  If a service is provided by Ajila jointly with third parties or if the customer obtains services from third parties under the contracts, Ajila may disclose data about the customer or the customer to such third parties in Germany or abroad to the extent that this is done in connection with or related to the provision of the service or for collection purposes.

  Additional data protection requirements, e.g. those to be taken into account in the context of order data processing, such as the scope and purpose of the data processing and the services requested by the customer with regard to data security, can be agreed in the contracts. The procedures, controls and corresponding costs provided for this shall also be agreed in the individual contracts.

  • Confidentiality:

  Both parties undertake to treat as confidential their employees, other auxiliary persons and consulted third parties, all information which is not generally known and which they learn in connection with the provision of their services under the contracts or with the contractual relationship or about the customers and business relationships of the other party. They undertake to make this information available to third parties only to the extent and to the extent that the Contracts permit the parties to do so, the other party expressly permits this, or this becomes necessary due to a court order or legal obligation. Ajila is entitled to disclose the information to commissioned third parties in Germany and abroad, the latter, however, only to the extent this is necessary for the commissioned third parties to fulfill their contractual obligations.

  Ajila is authorized to use the name and marks of the Customer and the agreed Services of Ajila for reference purposes. Further advertising and publications about project-specific services require the consent of the other party.

  • Compliance with laws and regulations in general, measures against abuse and interference:

  The Parties shall comply with the laws and regulations applicable to them. Ajila shall therefore comply with those laws and regulations that are generally applicable to Ajila as a provider of services in the field of information technology. Customer is responsible for assessing and specifying the requirements of those laws and regulations applicable to its business, including with respect to the products and services purchased under these TOS. Each party shall comply with applicable export and import laws and regulations.

  In the event of detection or reasonable indications of security threats, as well as of unlawful or improper use or use of malfunctioning equipment, Ajila reserves the right to take measures to prevent or reduce imminent damage, subject to prompt notification of the Customer. The measures include in particular:

  1. the request to immediately and permanently cease or effectively prevent unlawful or improper use and removal of operating equipment that causes disruptions; as well as the extraordinary termination for cause;
  2. the immediate and temporary interruption of affected contractual services (e.g. temporary blocking of access).

  The taking of such measures does not constitute a breach of contract on the part of Ajila insofar as it is not itself responsible for the cause of the disruption/threat.

• The contractual relationship comes into force upon conclusion of the contract. The term of any subscription results from the respective order. They may be terminated at the end of the respective term and shall be extended without notice by the duration selected in the subscription. If contracts are not limited in time, they shall be deemed concluded for an indefinite period in each case with regard to the service contained therein. If a minimum term has been agreed, termination is possible at the earliest at the end of the minimum term.
• The contracts may stipulate deviating provisions regarding the effective date, term and ordinary termination options, subject to the right to extraordinary termination of a continuing obligation for good cause. Important reasons are in particular:

1. the occurrence of events or circumstances which make the continuation of the agreed cooperation under the respective contracts unreasonable for the terminating party, such as in particular the persistent serious breach of material contractual obligations;
2. the official publication of the opening of bankruptcy proceedings or debt-restructuring moratorium of one party. In these cases, the extraordinary right of termination applies only to the other party;

• the incomplete performance of a required advance payment or other securities.
  
  • If a breach of contract by one party can be remedied, the other party shall give written notice of the breach of contract and allow a period of 30 calendar days for its remedy before giving notice of termination.

• In the absence of any contractual provision to the contrary, Ajila will delete the data provided or processed by the customer or its users upon termination of the contract, unless there are legitimate reasons for not doing so, such as, in particular, its own legal archiving or preservation of evidence.
• Outstanding payment obligations as well as rights and obligations which expressly or according to their nature remain unaffected by a termination of the contractual relationship shall survive the termination of the contract.

• The contracts (including these GTC) shall in each case supersede all previous agreements, correspondence, declarations, negotiations or understandings of the parties regarding the subject matter of the respective contracts, unless expressly referred to in the respective contracts. This shall also apply to offers, tenders or specifications.
• The validity of the contracts is subject to the necessary regulatory approvals being granted for the execution of the respective contracts.
• All amendments and deviations from the respective contracts must be made in writing, unless the parties have agreed otherwise in writing.
• Offsetting of claims by the customer is only permitted with Ajila's written consent.
• The rights and obligations under the respective contracts may only be assigned and transferred to third parties with the written consent of the other party.
•  The parties agree that they do not enter into a simple partnership (Art. 530 ff. CO) by means of the contracts. If, contrary to expectations, such a company is adopted, the dissolution of the contract to which it relates shall at the same time lead to the dissolution of the simple partnership.
• Should parts of the contracts prove to be invalid or ineffective, this shall not affect the validity of the remaining provisions or the existence of the other parts of the contract. The invalid or ineffective provision shall be replaced by a provision that comes closest to the economic objective of the parties.