General Terms & Conditions (GTC)

1           Scope of Application

1.1           These general terms and conditions (“GTCs”) govern the contractual relationship between FPL2 Ventures GmbH (“resimate”), and its customers (“Customer”) regarding the use of the resimate’s software-as-a-service solutions as available on resimate.io (“Services”).

1.2           Deviating terms of the Customer shall not apply. Individual written agreements between resimate and the Customer take precedence over these GTCs, provided that resimate expressly agrees to such individual written agreements.

2           Conclusion of Contract

2.1           The contract is concluded when the Customer accepts an offer from resimate (including online order forms), when resimate confirms the Customer’s order in writing (email sufficient), or when Customer uses the Services.

2.2           The scope of the agreed Services results from the respective service description, order form, or contract document.

3           Services

3.1           Resimate grants the Customer access to the Services via the internet for the agreed contract term.

3.2           The Services are provided “as is” without any warranty.

3.3           Resimate may update or further develop the Services at its own discretion, provided the essential functionality is not materially impaired.

3.4           Customer and resimate may agree on further services such as project work to be provided by resimate.

4           Availability and Support

4.1           Resimate strives for high availability of the Services but does not guarantee uninterrupted access unless expressly agreed in a service level agreement (SLA).

4.2           Scheduled maintenance work shall, where possible, be communicated in advance.

5           Customer Obligations

5.1           The Customer shall use the Services in accordance with the contract, applicable law, and good faith.

5.2           The Customer is responsible for the accuracy of the data it enters, and for safeguarding access credentials.

5.3           The Customer shall not misuse the Services, in particular not to transmit unlawful content, malware, or spam.

5.4           The Customer shall indemnify and hold resimate harmless from any third-party claims arising from unlawful or improper use of the Services.

6           Fees and Payment Terms

6.1           The Customer shall pay the fees as agreed in the order form. Unless otherwise agreed, fees are invoiced annually in advance and payable within 30 days of the invoice date.

6.2           All prices are net in Swiss francs, plus applicable VAT.

6.3           If the Customer defaults on payment, resimate may suspend the Services and charge default interest of 5% p.a.

7           Intellectual Property

7.1           All intellectual property rights in the Services remain with resimate or its licensors.

7.2           The Customer receives a non-exclusive, non-transferable, time-limited right to use the Services for its own internal business purposes.

7.3           The Customer is not entitled to copy, modify, decompile, or otherwise attempt to extract source code from the Services, unless permitted by mandatory law.

8           Customer Data / Data Protection

8.1           Resimate processes personal data in accordance with applicable data protection law, in particular the Swiss Federal Act on Data Protection (FADP) and, if applicable, the GDPR.

8.2           During the term of the contract, and for sixty (60) business day thereafter, Customer grants resimate a limited, non-exclusive right to host, store, reproduce, transmit, display, and otherwise process customer data solely as necessary for the following limited purposes: (i) to provide and deliver the Services to the Customer; (ii) to maintain, support, and secure the Services (including performing back-ups, disaster recovery, monitoring, and threat detection); and (iii) to improve the functionality, performance, and user experience of the Services, provided that such processing is in accordance with this contract. Customer furthermore guarantees to be entitled to share such data with resimate.

9           Confidentiality

9.1           Each Party (“Receiving Party”) undertakes to keep strictly confidential and not to disclose to any third party any non-public, confidential or proprietary information received from the other Party (“Disclosing Party”) in connection with this contract (“Confidential Information”). The Receiving Party shall use Confidential Information solely for the purpose of exercising its rights and performing its obligations under this contract and shall protect such information with at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care.

9.2           The confidentiality obligations shall not apply to information which (i) is or becomes publicly available without breach of this contract; (ii) is lawfully received by the Receiving Party from a third party without confidentiality restriction; (iii) was already known to the Receiving Party prior to disclosure by the Disclosing Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.

9.3           The Receiving Party may further disclose Confidential Information to the extent required by applicable law, regulation or a binding order of a competent authority or court, provided that, where legally permissible, the Receiving Party gives the Disclosing Party prompt notice of such requirement.

9.4           These obligations shall remain in force during the term of this contract and for a period of three (3) years after its termination or expiration.

10           Liability

10.1           To the maximum extent permitted by applicable law, resimate’s liability is herewith excluded. For all other cases, resimate’s total aggregate liability arising out of or in connection with the Services, whether in contract, tort (including negligence), strict liability or otherwise, shall be limited to the total amount of subscription fees actually paid by the Customer to the Provider for the Services during the twelve (12) months immediately preceding the event giving rise to the claim.

10.2           In no event shall resimate be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to loss of profits, loss of revenue, loss of business, loss of goodwill, loss of data, or business interruption.

11           Term and Termination

11.1           Unless otherwise agreed, the contract is concluded for a minimum term of twelve (12) months and is automatically renewed for successive periods of twelve (12) months, unless terminated with three (3) months’ notice prior to the end of the respective term.

11.2           If a party commits a material breach of any term of this contract, the other party may terminate the contract and any and all order forms with immediate effect, if the party in breach fails to remedy that breach, if such breach is remediable, within a period of twenty (20) Business Days after being notified in writing to do so.

11.3           Resimate may terminate the contract for cause with immediate effect:

• the Customer is in default with payment despite reminder and reasonable grace period,

• insolvency proceedings are opened against the Customer;

• Customer develops and/or markets, or gains control of a business that develops and/or markets, services or any software or application which competes with the Services.

11.4           Resimate reserves the right to temporarily suspend the provision of the Services instead of terminating the contract with immediate effect.

12           Miscellaneous

12.1           Resimate may amend these GTCs at any time. The amended version will be communicated to the Customer in text form. If the Customer does not object within thirty (30) days, the changes are deemed accepted.

12.2           The Customer may not assign rights or obligations from the contract without resimate’s prior written consent.

12.3           If any provision of these GTCs is or becomes invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes closest to the intended purpose.

13           Governing Law and Jurisdiction

13.1           This contract is governed by substantive Swiss law, excluding its conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

13.2           The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract is Zurich, Switzerland.

***