Adviscent Terms and Conditions

I. Scope

These Adviscent Terms and Conditions govern the provision of the Product (as defined below) by Adviscent.

The Customer agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Adviscent.

II. Definitions and Interpretation

A. Definitions

The terms and expressions written with a capital shall have the meaning given to them below, unless the context requires otherwise:

Agreement: the entire set of documents which regulates the relationship between Adviscent and the Customer with respect to the provision of the Product, consisting of an Individual Contract and these present Terms and Conditions, as well as all documents referred to in those documents;

Change of Control: with regard to an entity, the change in power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract or otherwise or by acquiring more than 50% of the shares of a party or of the voting rights attached to them including through an initial public offering of more than 50% of the share capital of a party;

Channels: the channles as described in the Software Terms;

Charges: the amounts due by the Customer to Adviscent for the provision of the Product, as determined in, or calculated in accordance with the Agreement;

Confidential Information: any information provided or disclosed by the Disclosing Party which is explicitly indicated as being confidential or which must reasonably be considered as confidential (including all non-public information), regardless of the format (orally, in writing and/or electronically) in which the information was provided or disclosed;

Content Management System: the content management system as described in the Software Terms;

Customer: the entity designated as such in the Individual Contract;

Customer Data: all data and information provided by or on behalf of the Customer, including data which any user of the Product inputs or uploads to the Product;

Damage: any costs, delays, damage, loss, expenses and other liabilities incurred by a Party;

Data Protection Legislation: meaning as attributed to it in the Data Protection Terms, which forms part of the Agreement;

Data Protection Terms: the Adviscent Data Protection Terms;

Documentation: the latest applicable version of operating and/or user manuals and instructions, technical literature and all other related materials in eye-readable form published by Adviscent relating to the use, application, maintenance or other form of use of the Product;

Effective Date: the date on which the Agreement is signed by both Parties;

Force Majeure: any event beyond the reasonable control of one of the Parties that affects the execution of its obligations under the Agreement, including but not limited to, natural disasters, riots, war and military operations, national or local emergencies, actions or omissions of the government, economic disputes of whatever nature, actions of employees, fire, flooding, lightning, explosions, collapses, the reduced or non-functioning of networks, systems and equipment, products and software of third parties as well as any action or omission of a person or entity beyond the reasonable control of the affected Party; the situation where the Customer can not meet its payment obligations does not qualify as Force Majeure;

Hosting: the hosting and operation of the Product and relevant software systems and utilities on Adviscent's and/or the Hosting Provider's host computer system, necessary to provide the Product to the Customer;

Hosting Provider: Adviscent’s subcontractor providing the Hosting;

Individual Contract: a written document signed by both Parties, indicating the nature, number and other specifics of the Product ordered by the Customer from Adviscent and the conditions under which such order is made, and which forms part of the Agreement;

Intellectual Property Rights: (a) patents, utility models, petty patents, rights in trade secrets and other confidential or undisclosed information (such as inventions (whether patentable or not or knowhow), registered designs, database rights, design rights, rights in copyright (including moral rights), semiconductor topography rights, mask work rights, and trade marks, logos and any other artwork; (b) all registrations or applications to register any of the rights referred to in paragraph (a); and (c) all rights in the nature of any of the rights referred to in paragraph (a) including continuations, continuations in part and divisional applications, rights in unfair competition and, without prejudice to anything else in this definition, rights to sue for passing-off and rights having the equivalent or similar effect to, and the right to apply for any of the rights listed in this definition, in any country or jurisdiction;

Law: all applicable local, state, national and international laws, treaties and regulations, codes, ordinances, rules, restrictions, licenses, and judicial or administrative orders that are in effect at the Effective Date or that may come into force thereafter;

Party/Parties: Adviscent and/or the Customer, as applicable;

Personal Data: meaning as specified in the Data Protection Legislation;

Product: the product provided to the Customer online as described in the Software Terms (including the hosted application/applications) made available to the Customer by Adviscent to provide the service described in the Service Terms, including providing Supplier Content to the Customer, storing Customer Data and making the Product, Supplier Content and Customer Data available to the Customer and any users authorised by the Customer to use the Product via the Web Site; and including the maintenance and support services as described in the Service Terms;

Requirements: the agreed functionalities, requirements and/or any other specifications of the Product;

Service Terms: the Specific Terms and Conditions for Services (section V below);

Software Terms: the Specific Terms and Conditions for Software (section IV below);

Supplier Content: Adviscent’s proprietary information and data made available to the Customer and/or users of the Product;

Web Site: the internet site operated by Adviscent to provide access to the Product.

B. Interpretation

The section headings used throughout the Agreement are for convenience of reference only and shall have no effect upon the construction or interpretation of this Agreement or any part thereof.

The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders. In construing or interpreting this Agreement, the word «including» shall not be limiting and the word «hereunder» means under this Agreement.

The Parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to this Agreement.

III. General Terms and Conditions

A. Agreement

1. Offers

Quotations issued by Adviscent are made without obligation and do not constitute offers, except if stated to the contrary. Specifications and quotations in catalogues, brochures etc. are only binding if expressly referred to in the offer or order confirmation. Quotations are valid for 30 days only, unless stated otherwise on the quotation.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Adviscent shall be subject to correction without any liability on the part of Adviscent.

B. Acceptance of the Agreement

Any communication or conduct of the Customer which confirms an agreement for the purchase, lease or license of goods or services from Adviscent, including ordering the Product or acceptance by the Customer of any delivery of the Product by Adviscent, and/or the using of the Product shall qualify as unconditional acceptance by the Customer of the terms of the Agreement.

Any person accepting the Agreement on behalf of a company or other legal entity or on behalf of another person, represents and warrants that it has full authority to bind that company or legal entity to these terms.

C. Hierarchy of the Agreement

In the event of conflicting provisions between the different documents constituting the Agreement, the following hierarchy is to be respected:

(i) Individual Contract (including documents referred to in it); which shall prevail over the

(ii) Adviscent Terms and Conditions (including documents referred to in it).

D. Parties to the Agreement

Unless explicitly otherwise agreed in the Agreement, Adviscent delivers the Product only to the Customer, and not to any Customer affiliated entities or any other third parties; and only the Customer may invoke the rights granted to the Customer under this Agreement.

In the event the Agreement explicitly grants certain rights to any third parties such as to Customer affiliated entities («Third Party Beneficiaries»), the Customer warrants and guarantees that the Third Party Beneficiaries shall comply with the obligations related thereto under the Agreement, including any licensing terms and/or terms of use. In no case will a Third Party Beneficiary be granted more rights than to the Customer as set out in the Agreement, including in relation to Adviscent’s obligations and liability.

E. Execution of the Agreement

1. Provision of the Product

Each order for a Product requires an Individual Contract signed by both Parties, unless otherwise expressly stated in writing by Adviscent. In the event the Customer issues an order for the Product, such order shall be deemed an offer, which shall constitute a binding Individual Contract once accepted by Adviscent. The terms of the Agreement shall prevail over the terms set out in this Customer-issued order.

The obligations of Adviscent are exhaustively defined in the Agreement. Unless explicitly otherwise agreed, all obligations of Adviscent are considered to be delivered on a reasonable effort basis.

Delivery times are determined by Adviscent to the best of its ability based on the information made available to Adviscent, and must, unless explicitly agreed otherwise, be considered as indicative delivery times. Adviscent will undertake reasonable efforts to comply with the delivery times and to inform the Customer in the event Adviscent determines that it will reasonably not be able to comply with the delivery times. In no event will Adviscent be liable for delays in delivery.

Upon delivery of the Product, the Customer shall promptly test the Product for acceptance. The absence of any remarks made and substantiated in writing by the Customer to Adviscent within a term of 7 calendar days as from delivery at the Customer premises and specifying the reasons for not accepting the Product on the one hand, or the operational use of the Product on the other hand, whichever comes first, shall be construed as an irrevocable acceptance by the Customer of the Product. In the event of such claim by Customer within said term, Adviscent shall within a period of 14 calendar days, at its cost:

(i) determine the validity of the complaint;

(ii) in the event of the complaint being valid, arrange for the collection of the non-compliant Product from the site;

(iii) subject to obtaining the necessary regulatory approvals, arrange for the replacement of the Product with another complying Product; and

(iv) arrange to replace or repair the non-compliant Product at its own premises or at the site (whichever may be the most expedient).

The Customer acknowledges and agrees that Adviscent may at any time discontinue the provision of the Product, or may modify the Product or the provision thereof, without liability to the Customer. Equally, Adviscent shall be entitled to amend the specification of the Product and to make substitution of a component of the Product prior to delivery where such amendment or substitution will have no substantive adverse impact upon the functionality of the Product.

Adviscent does not give any guarantees in addition to the guarantees explicitly set out in the Agreement. The Parties agree that no other explicit or implicit guarantees or conditions apply, including implicit conditions or guarantees regarding the quality and fitness for a certain purpose or use envisaged by the Customer.

2. Subcontracting

Adviscent has the right to subcontract any part of the execution of the Agreement to third parties, including any affiliated entity.

3. Personnel

The personnel of Adviscent and of its subcontractors always act under the exclusive responsibility of Adviscent or its subcontractors, as applicable. The Customer may under no circumstances be considered as being the legal or factual employer of such personnel.

Adviscent reserves the right to determine which staff members it involves in the performance of the Agreement, and may replace them at any time with other staff members.

During the execution of the Agreement and during a period of 2 years after the termination of the Agreement, the Customer shall not, without the explicit written approval of Adviscent, individually solicit employees of Adviscent (excluding such employees responding on their own initiative to job vacancies distributed to the general public) which are or were involved in the performance of the Agreement, in view of concluding an employment, agent, director or other representation agreement or an agreement for the provision of services. In case of breach of this clause, the Customer can be held liable for a fixed compensation of two (2) years salary of the person involved, on a cost-to-company basis.

F. Customer Cooperation

The Customer shall, at no cost, provide all reasonable required assistance to Adviscent for the performance of the Agreement.

The Customer warrants that all decisions and approvals in relation to the performance of the Agreement are taken or granted by its authorised representatives.

The Customer shall at all times comply with the terms of the Agreement, and shall ensure that its personnel, consultants and service providers who have access to the Product shall comply with such terms.

The Customer shall timely notify Adviscent of any circumstances which may affect Adviscent's obligations, in particular with respect to the execution, timing, pricing and progress of the performance of the Agreement.

In relation to the use of the Product, the Customer shall:

(i) ensure that the Product is operated in accordance with the latest Documentation;

(ii) ensure that the Product is only operated by personnel who have been trained in the proper use thereof;

(iii) maintain the operating environment of the Product in accordance with the instructions of Adviscent and the Documentation;

(iv) carry out Adviscent’s instructions regarding any remedial work required in respect of the Product;

(v) provide Adviscent with reasonable assistance and information relating to any support request and associated troubleshooting;

(vi) ensure that no third parties are allowed access to the internal workings of the Product, unless agreed to by Adviscent;

(vii) provide adequate security and maintenance on the Product IT network. When computer equipment is connected to a public network, certain regulatory rules and regulations may apply. It is the sole responsibility of the Customer to ensure compliance with all such regulations.

The Customer warrants that it has and shall maintain for the duration of the Agreement all approvals, agreements, authorisations, allowances, licenses and permissions which may be required for the receipt and use of the Product, and for all activities in the framework of the Agreement. The Customer shall provide to Adviscent such requested information which it reasonably deems necessary for its internal compliance governance. Adviscent shall assist the Customer where reasonably possible. The Customer shall also notify Adviscent in advance of all approvals, agreements, authorisations, allowances, licenses and permissions Adviscent needs to provide the Product to the Customer.

The Customer shall comply with the Law (and in particular the Law applicable to the receipt, import, export and use of the Product). The Customer will timely notify Adviscent of any requirements and practices which apply to its industry or specifically apply to the Customer or Adviscent and which are not set out in the Agreement, including all changes to such requirements and practices, and which may impact the performance of the Agreement.

The Customer shall ensure, to its own satisfaction, that all third party systems or products to which the Product is required to connect are capable of interfacing or connecting to the Product.

The Customer shall provide, establish and maintain appropriate surveillance and exterior security of the Product at the relevant location as required by the relevant regulatory authorities and use its reasonable endeavours to promote the Product to patrons of the location and do nothing which may prevent or discourage patrons from utilising the Product.

The responsibilities of the Customer consist of performing its obligations and tasks as specified in the Agreement and/or which reasonably and/or necessarily should be carried out in order to adequately and correctly allow Adviscent to carry out its obligations included in the Agreement (for the purposes of this clause «Responsibilities»).

The execution of the Agreement by Adviscent depends on the accurateness and completeness of the information provided by the Customer in the framework of the Agreement and any other assumptions which were provided to Adviscent by the Customer (for the purpose of this clause «Assumptions»).

The Customer is responsible for any delay, all additional costs or other Damage caused as a result of its failure to comply with its Responsibilities or the incorrectness of the Assumptions.

As a condition for the execution of the Agreement, the Customer shall during the entire duration of the Agreement:

(i) comply with its obligations and Responsibilities and ensure that all Assumptions are accurate;

(ii) provide reliable, accurate and complete information to Adviscent, as required; and

(iii) make timely decisions and obtain the required internal approvals.

G. Charges, Invoicing and Payment

1 Charges and costs

The Customer shall pay the Charges as determined in the Agreement. Each partial delivery can be invoiced separately. For services, any Charges for services that commence partly during a month, where relevant, shall be invoiced on a pro rata basis.

The amounts mentioned in the Agreement are expressed in the applicable currency indicated in the Individual Contract. They are exclusive of taxes and duties, unless expressly indicated otherwise. VAT and any other taxes, duties and levies which apply at the moment of invoicing, are always payable by the Customer and are charged in addition to the Charges.

If the Charges are determined on the basis of the number of «man days», «working days» etc., this refers to a period of 8,25 hours, unless otherwise agreed in the Individual Contract.

Unless agreed otherwise in the Individual Contract, Charges do not include license and/or engineering fees levied by component or system supplier(s) and materials and components supplied by component or system supplier(s).

Charges for overtime, additional services, modifications requested by the Customer or caused by circumstances beyond the control of Adviscent shall be determined on the then applicable hourly or man day rates of Adviscent, unless specifically otherwise agreed. Adviscent shall provide the Customer with an overview of such documented time.

Costs incurred by Adviscent in the execution of the Agreement, including transport, accommodation, subsistence and living expenses (food and beverage, unless to the extent provided for by the Customer), and logistics costs, are payable by the Customer based on the standard rates of Adviscent, unless specifically otherwise agreed. Adviscent shall provide the Customer with an overview of such documented costs.

Any indexation of Charges shall be as specified in the Individual Contract.

In the absence of any indication of Charges for costs, fees and expenses, they shall be charged at their actual cost or at the applicable then-current hourly rates, and Adviscent shall provide the Customer with an overview of such documented costs.

2. Payment

The Product shall be invoiced as detailed in the Individual Contract. Unless otherwise agreed in the Individual Contract, full payment for invoices sent by Adviscent to the Customer must be received on Adviscent’s bank account within 30 calendar days following the date of the invoice.

Payments must be made in the applicable currency through bank transfer on the bank account of which the bank account number is mentioned on Adviscent's invoice, including the required references.

Payment through set-off is never possible, unless otherwise agreed in writing. All payment obligations are non-cancellable and all amounts paid are non-refundable except as otherwise set forth in the Individual Contract.

In the event of a dispute with respect to a part of the invoice, the part of the invoice that is not disputed shall be paid in accordance with the provisions of this clause.

In the event of failure to pay the invoices by their due date, the following shall apply automatically, and without prior notice of default, to the outstanding amount until payment thereof:

(i) all amounts due are immediately payable, regardless of the agreed payment terms;

(ii) a late payment interest of 5% per month is due on the outstanding amount, whereby each month started counts as a complete month.

In case of a delay in payment, including in case of a partial delay in payment, of more than 30 calendar days, Adviscent reserves the right to suspend or terminate the use of the Product and/or the Agreement, in whole or in part, without prejudice to the other rights of Adviscent under the Agreement and/or applicable law.

H. Information and Data

1. Confidential Information

The Party receiving Confidential Information (the «Receiving Party») shall treat the Confidential Information received from the Party disclosing Confidential Information (the «Disclosing Party») confidential in accordance with this Agreement (and documents referred to in it).

Any prior obligations or agreements (e.g. non-disclosure agreement) between the Parties with respect to the Confidential Information shall continue to apply and shall supplement the terms of the Agreement. These confidentiality obligations, as well as any additional confidentiality obligations in the Agreement, shall survive the termination of the Agreement.

The Receiving Party shall in particular:

(i) only use such Confidential Information for the purpose of complying with its obligations under the Agreement;

(ii) store such Confidential Information with at least the same level of care applied when storing its own Confidential Information, and in no case with a less than reasonable level of care; and

(iii) not disclose such Confidential Information to any third party.

The Receiving Party may only deviate from the foregoing obligations in the event the Receiving Party has obtained the written consent from the Disclosing Party and/or to the extent permitted by this clause.

The confidentiality obligations as specified in this clause do not apply to Confidential Information which:

(i) has become publicly known in a way other than by violation by the Receiving Party of its obligations under the Agreement;

(ii) was disclosed to the Receiving Party as non-confidential by a third party and of which the Receiving Party is of the opinion that, by lack of an obligation in favour of the other party, it is not unlawful to disclose the information;

(iii) was developed by the Receiving Party independent of the Disclosing Party and by not making use of Confidential Information, or was already known by the Receiving Party prior to the information being disclosed to it by the Disclosing Party; and/or

(iv) is disclosed with the written consent of the Disclosing Party.

The confidentiality obligations do not apply to the extent the Receiving Party is required to disclose the Confidential Information by a court or regulatory authority of competent jurisdiction or on the basis of laws or regulations or any other administrative or legal proceedings. Where the Receiving Party is required to make such disclosure, it shall, where reasonably practicable, inform the Disclosing Party and consult with the Disclosing Party as to the terms, content and timing of the disclosure.

The Receiving Party may disclose the Confidential Information of the Disclosing Party to its employees, consultants and suppliers which are directly involved with and/or should be informed of such Confidential Information for the execution of the Agreement. The Receiving Party warrants and guarantees that its employees, consultants and suppliers are in such case aware of the confidential nature of the information. The Receiving Party shall impose on them confidentiality obligations which are at least similar to those included in this clause.

In the event the Receiving Party no longer needs the Confidential Information for complying with its obligations under the Agreement or upon first request of the Disclosing Party, the Receiving Party shall return the Confidential Information (together with any copy and summary thereof) to the Disclosing Party or at the Disclosing Party's option, destroy the Confidential Information. The Receiving Party warrants and guarantees that each person to whom the Confidential Information was disclosed in accordance with this clause shall also comply with this obligation.

This clause applies without prejudice to Adviscent's right to maintain a copy of the project documentation for archiving purposes and quality control following termination of the Agreement.

2. Customer Data and Personal Data

The Customer is fully responsible for the content of the Customer Data. The Customer warrants that the Customer Data, and Adviscent's access to and processing of the Customer Data in the context of the provision of the Product in accordance with the Agreement, do not violate any Law and/or any third party rights.

Taking into account the possible sensitive nature of the Customer Data and in particular Personal Data which are part of the Customer Data, the Customer shall comply with Data Protection Legislation when receiving and using the Product.

If Adviscent is provided with access to any Personal Data and/or must process any Personal Data in the framework of the performance of the Agreement, the Customer acts as «data controller» and Adviscent acts as «data processor», as specified in the Data Protection Legislation, for the duration of the Agreement. Such is further detailed in the Data Protection Terms.

3. Security

Unless explicitly agreed otherwise in the Agreement, the Customer is fully responsible for the safety and security of the Customer Data, and for making the necessary back-ups in order to avoid loss and/or corruption of the Customer Data. The Customer is also responsible for the safety and security of the networks it uses for the use of the Product.

I. Intellectual Property

All Intellectual Property Rights created, developed, subsisting or used in or in connection with the Product offers and the Product, including its Documentation and related Confidential Information (hereinafter jointly referred to as the «Protected Materials»), and including as a result of work carried out in the framework of the Agreement, will be the absolute property of, and will vest and remain vested in Adviscent (or its suppliers, where relevant).

Nothing in this Agreement shall be construed as granting the Customer any right or confer or transfer to the Customer any right on the Intellectual Property Rights other than as expressly set out in the Agreement. The Customer shall do and execute or arrange for the doing or executing of each necessary act, document and thing that Adviscent may consider necessary or desirable to perfect the right, title and interest of Adviscent in and to those Intellectual Property Rights.

Unless expressly otherwise agreed in writing with Adviscent, the Customer shall:

(i) not create derivative works based on the Protected Materials or any part or component thereof including but not limited to the software;

(ii) not copy, duplicate or reproduce the Protected Materials in whole or in part nor use the Protected Materials, or any part thereof, to create any product or material that is similar to the Protected Materials;

(iii) not sell, assign, rent, (sub-)license, loan, disclose, or otherwise transfer or make available the Protected Materials in whole or in part to any third party;

(iv) not adapt, vary, alter, translate, disassemble, decompile, merge or attempt to reverse engineer the Protected Materials or any part or component thereof nor permit the same to be combined with, or become incorporated in, any other products;

(v) not register any trade mark, trade name, corporate name, logo, domain name, copyright or design of Adviscent (or any of its affiliated entities), or anything confusingly similar thereto, anywhere in the world;

(vi) not use the Protected Materials to provide services to third parties (other than for which the Protected Materials are destined for and allowed by this Agreement);

(vii) not remove or alter any proprietary notices or marks on the Protected Materials; and

(viii) supervise and control the use of the Protected Materials by its representatives, employees, customers, and third parties ensuring such use is in accordance with the terms of this Agreement.

The Customer shall permit Adviscent and its representatives, at reasonable times, to inspect and have access to any premises at which the Protected Materials are being kept or used, for the purpose of ensuring that the Customer is complying with the terms of the Agreement.

Notwithstanding the foregoing, Adviscent hereby grants the Customer a non-exclusive, non-transferable, non-assignable license, without the right to sub-licence, to use the Product and Product related material in print advertising, on billboards, in media communications, and other similar or related advertising venues, for marketing and promoting its services. All advertising using the Product and Product related material by the Customer shall be of a high level of quality and shall be subject to Adviscent’s prior review. Adviscent reserves the right to reject, in its discretion, any proposed use of the Product upon written notice to the Customer.

J. Intellectual Property Indemnity

Subject always to the Customer's proper observance of its obligations under this Agreement, Adviscent shall indemnify the Customer against all Damage awarded by court against the Customer in relation to any third party claim that the Customer's use of the software and/or Documentation (or any part thereof) subject of this Agreement, constitutes an infringement of any Intellectual Property Rights owned by a third party on condition that the Customer shall:

(i) promptly notify Adviscent in writing of any infringement or allegation of infringement;

(ii) allow Adviscent to conduct all negotiations and proceedings, defences and give Adviscent all reasonable assistance as requested by Adviscent; and

(iii) make no admission relating to the infringement or alleged infringement.

If at any time an allegation of infringement of Intellectual Property Rights is made, Adviscent may, at its own expense and sole option:

(i) procure for the Customer the right to continue using the relevant software and/or Documentation; or

(ii) replace or modify the software and/or the Documentation to make them non-infringing without substantially affecting the functionality of the same; or

(iii) take such action as Adviscent shall reasonably deem appropriate to avoid or settle any such infringement or alleged infringement; or

(iv) refund to the Customer the appropriate portion of the Charges for the term during which the software can no longer be used and which has been paid by the Customer, and the Agreement (or relevant part thereof) shall automatically terminate upon transmission or dispatch by Adviscent of that part of the Charges.

If Adviscent elects to modify the item(s) or to supply substitute item(s) or to procure a license and such exercise of the said rights has avoided any claim, demand or action for infringement or alleged infringement, or if Adviscent has otherwise avoided or settled the claim, demand or action for infringement or alleged infringement, or if Adviscent has refunded the relevant part of the Charges to the Customer, then Adviscent shall have no further liability thereafter in respect of the said claim, demand or action.

Adviscent shall have no liability for any claim of infringement resulting from:

(i) any modifications or alterations to the software and/or Documentation not made by Adviscent;

(ii) any information, design, specification, instruction, software, data or material not furnished by Adviscent;

(iii) to the extent allowed under the terms of the Agreement, combining the software with any other hardware and/or software and/or use of the software in combination with any other hardware and/or software, which has not been directed or pre-approved in writing by Adviscent;

(iv) the use of the Product or any part thereof other than as directed or approved by Adviscent in writing (including on the basis of the Documentation) or otherwise in any manner not permitted by this Agreement;

(v) any breach of contract or any negligent, wilful or fraudulent act or omission by the Customer, its employees, agents, subcontractors, customers or users of the Product.

The foregoing provisions of this clause state Adviscent’s entire liability with regard to any infringement or alleged infringement of any Intellectual Property Rights arising from the Customer’s use of the Product and/or Documentation.

K. Regulatory Requirements

Adviscent has the right to undertake actions required to conform to regulatory requirements or requests from regulatory authorities, and the Customer shall assist Adviscent with the same as far as reasonably required.

The Customer understands and agrees that compliance with regulatory requirements or changes of the same can cause delays which are beyond the reasonable control of Adviscent, and that agreed Charges are not taking into account existing requirements or changes thereto unless where expressly agreed otherwise.

To avoid any such impact of regulatory requirements to the maximum extent possible, the Customer (operating in the relevant jurisdiction) shall inform Adviscent sufficiently in advance and as much as possible on any existing regulatory requirements in relation to the Product, the supply by Adviscent into Customer’s jurisdiction (e.g. any required permit or license) or any other relevant regulatory requirement or later change thereof which may impact the Product or its use.

L. Contract Management

The Parties shall each appoint one or more key representatives to communicate and resolve issues arising from the implementation of the Agreement. Their names and contact details shall be set out in the Individual Contract. The key representatives of each Party shall be the duly authorised persons responsible for attending to any issue concerning the implementation of the Agreement. Should the key representatives be changed by either Party at any time during the course of the Agreement, that Party shall be obliged to provide written notice to the other Party of any such change.

It is agreed that the key representatives appointed to represent each Party shall:

(i) serve as the primary line of communication between the Parties;

(ii) make themselves available as is reasonably requested by a Party to resolve any issue;

(iii) work together to resolve any issue, specifically when it is a problem, crisis or emergency.

Should the Parties wish to effect a change to any aspect of the Agreement, then any such change shall be referred to the designated key representatives.

M. Risk Allocation

1. Liability

Adviscent shall only be liable for Damage caused by gross negligence or wilful misconduct.

Adviscent shall only be liable for a failure to comply with the Agreement which is imputable to Adviscent to the extent the Customer informs Adviscent immediately in writing and in a detailed manner of such failure, and Adviscent does not correct such failure within a reasonable period of time.

2. Force Majeure

A Party shall not be liable for delays or failure to perform its obligations if such delay or failure is caused by Force Majeure.

The Party which invokes Force Majeure must immediately notify the other Party in writing of these circumstances. The execution of the obligation which can not be carried out due to Force Majeure will be suspended for the duration of the Force Majeure and must be resumed as soon as the Force Majeure has disappeared. The Party which invokes the Force Majeure must also notify the other Party of the cessation of these circumstances.

N. Duration, Suspension and Termination of the Agreement

1. Entry into force and duration

The Agreement enters into force on the Effective Date.

The duration for each relevant part of the Agreement/Product shall be specified in the Individual Contract or, failing this, be as set out in the other provisions of the Agreement.

Neither Party may terminate the Agreement (and the Product) concluded for a determined period of time for convenience before lapse of such time.

2. Suspension

Without prejudice to the other provisions set out in the Agreement, Adviscent is entitled to suspend the provision of the Product in whole or in part with immediate effect in the event:

(i) Adviscent in its discretion determines that the Customer jeopardizes or threatens to jeopardize Adviscent's licenses, licenseability, rights and/or provision of the Product to Adviscent's customers, poses a security risk to or may materially harm the Product or any third party, may adversely impact the Product, systems or content of any other Adviscent customer, or may subject Adviscent, its affiliated entities or any third party to liability;

(ii) the Customer fails to comply with one or more of the obligations under the Agreement and fails to cure such breach within a period of 30 calendar days following notice thereof by Adviscent, it being understood however that in case of a full or partial breach of the Customer’s payment obligations under the Agreement, Adviscent is entitled to suspend the provision of the Product in whole or in part without giving such 30 calendar days’ remedy period; and

(ii) Adviscent is required to do so by Law or by any regulatory authority.

The Customer acknowledges and agrees that, where relevant and possible, Adviscent may reasonably suspend the provision of the Product in emergency situations so as to avoid and limit to a strict minimum any detrimental impact for Adviscent, the Customer and/or other customers of Adviscent.

Adviscent will, where not prohibited by Law and where reasonable under the circumstances, provide the Customer with prior notice of any such suspension or discontinuation of the Product as laid down in this clause, and an opportunity to take steps to avoid any such suspension and the Customer shall remain responsible for all Charges it has incurred through the date of suspension.

Adviscent’s right to suspend the Customer’s or any user’s right to access or use any Product is in addition to Adviscent’s other rights under Law or the Agreement.

3. Termination for cause

Each Party has the right to terminate the Agreement and/or the use of the Product, in whole or in part, with immediate effect in the event:

(i) the other Party fails to comply with one or more of its essential obligations under the Agreement, and to the extent such Party did not cure such breach within a period of 30 calendar days following notice of default;

(ii) the bankruptcy of the other Party has been declared;

(iii) the other Party loses the power of decision over its capital or loses substantial parts thereof due to seizure, dissolution of its company or liquidation of its assets, guardianship order or due to any other event;

(iv) any competent regulatory authority disapproves of or prohibits the Agreement and/or the use of the Product, or has ordered or recommended the termination of the Agreement or where any Party has reasonable ground to believe that the continuation of the Agreement will have a detrimental impact on the ability of that Party or its affiliated entities to be qualified or to hold or obtain any license, permit, approval or authorisation issued or to be granted by any regulatory authority.

Adviscent has the right to terminate the Agreement, in whole or in part, with immediate effect in the event of:

(i) the impending insolvency of the Customer;

(ii) a Change of Control of the Customer.

4. Consequences of termination

Termination or expiry of the Agreement, however caused, shall be without prejudice to the payment obligations of the Customer which may have accrued before termination or expiry and shall not affect any provision of the Agreement which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination or expiry.

In the event of temporary use of license of software, upon termination the Customer shall return such software (keys). In each event, the Customer shall also return all Documentation and any Confidential Information provided to the Customer under the Agreement to Adviscent, and the Customer, within 1 week of Adviscent's request, shall certify to Adviscent in writing that all relevant information and materials held by it have been returned or destroyed.

Following termination of the Agreement, Adviscent shall invoice the Customer for all accrued Charges, and the Customer shall pay the invoiced amount within 10 calendar days from the date of such invoice.

IV. Specific Terms and Conditions for software

A. Description of the Product

The system consists of four elements.

They are described in a high-level way in the following:

1. Backend

The backend contains the database and the business logic associated with it. It consists of modules 2 and 3 (Content Management and Content Distribution).

2. Strategy Manager

The Strategy Manager is the web frontend connected to the backend. It provides the authorized user roles (for example Admin and Content Manager) a GUI to interact with the backend.

The main features are Content Management, Settings and Analytics.

3. Channels

IAF can serve any channel like web apps, mobile apps, or integration with other systems. For web and mobile channels, components as part of the framework are available.

4. User Manager

The User Manager is a small web frontend to manage the user accounts for users like Content Managers, Administrators and Client Advisors.

5. Admin Manager

The Admin Manager lets the admin of the system configure the settings and manage the Master Data.

B. Terms of Software License

In consideration of all Charges paid by the Customer to Adviscent and the fulfilment of the Customer’s other obligations under the Agreement, Adviscent grants the Customer a non-exclusive, non-transferable, local (i.e. to be used in the location indicated in the Individual Contract, where relevant), temporary and limited license to use the Product in the manner specified in the Documentation and solely for the normal business purpose for which the Product is intended, with the exclusion of any other purpose, and in accordance with the Agreement. Without being exhaustive, this license does not include the right to sublicense or transfer the software or Documentation to another entity by whatever means or to permit access to the software by third parties unless this is within the normal business purpose of the software. No rights are granted to the Customer in respect of the source code of the software.

The Customer is entitled to make adjustments to the Product (i.e. parameterise the Product) to the extent set out in the Documentation in line with its own requirements or to connect it to interoperable programs. Any warranty regarding the Product shall cease to apply in respect of any developments and modifications to the Product made by the Customer without Adviscent's prior consent.

This Agreement does not grant the Customer (or any of its representatives, employees, customers or users of the software) any Intellectual Property Rights in the software and all rights not expressly granted are reserved by Adviscent and its suppliers.

The number of sites, locations or devices where or on which the software can be used may not be modified by the Customer without the prior written consent of Adviscent and obtaining all regulatory approvals.

The Customer expressly acknowledges that operation of certain software may require that the Customer has or obtains, at the Customer's sole cost and expense, appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication software for online maintenance, environments and/or other third party software. Where these are not agreed to be delivered by Adviscent, they shall be the sole responsibility of the Customer.

Unless otherwise agreed between the Parties in writing, if the Customer ceases using any hardware in which the software (which is subject to the Agreement) is embedded, the Customer shall ensure that all copies of such software have been deleted from such hardware.

If Adviscent has reason to suspect that the use of the software and/or the Documentation by the Customer is in breach of the Agreement, the Customer shall permit Adviscent to enter any premises owned or controlled by the Customer for the purposes of audit, this without prejudice to any other rights Adviscent may have on the basis of applicable law and/or the Agreement.

The Customer shall maintain and deliver to Adviscent such records as shall be reasonable for the purpose of reconciling and maintaining license related information on the Product.

Adviscent has the right, in its own discretion and considering regulatory requirements and restrictions, to make available updates or upgrades to existing software. To each such update or upgrade, where the Customer is entitled to receive the same, the present Software Terms shall apply. Where the Customer is entitled to an update or upgrade, the Customer is always required to maintain and responsible to install the latest version of the software as recommended by Adviscent. In absence thereof, Adviscent shall have no liability whatsoever (including for Damage caused by outdated software) to the Customer and Adviscent is entitled to suspend or terminate any support or maintenance.

Unless otherwise agreed in the Individual Contract, any software license is agreed for an initial term of 5 years as from the date of installation and commissioning of the software. Either Party can terminate the software license upon expiry of the initial term by providing written termination notice to the other Party at least 3 months in advance of lapse of the term. In absence of such termination notice, the term for the software license shall be prolonged for consecutive 1 year periods, unless terminated by either Party by providing written termination notice to the other Party at least 3 months in advance of lapse of the then-current term.

C. Delivery of Software

Adviscent will deliver the software by way of electronic transmission from a server of its choice. The electronic transmission by Adviscent to the Customer can be proven using the logs and transaction files kept electronically by Adviscent. The Customer acknowledges the probative value of this data.

It is the Customer’s responsibility to ensure it has the necessary equipment to access and process the software.

After installation of the software, the Customer shall promptly (and in each event within 5 business days after delivery) carry out all necessary tests to ensure that the software is in material conformity with the Documentation and what has been agreed between the Parties. In case the software fails to pass such tests, Adviscent may, in its discretion, either rework the software (after which the software shall be re-tested), replace the software or terminate the Agreement.

D. Warranty on Software

For a period of 3 months as from installation of the relevant software, if the Customer discovers a malfunction, error or problem of whatever nature in the software causing non-conformity of the software with the Documentation, it shall notify Adviscent of the same promptly upon establishing it, and Adviscent shall have the option, at its own discretion, of repairing the software or replacing the software within a reasonable term.

Adviscent shall not be responsible for any error or non-conformity of the software if the same is attributable to:

(i) the Customer's or any third party's actions, services, software or equipment not provided by Adviscent under or pursuant to the Agreement;

(ii) any changes, modifications, updates, alterations or enhancements to the software not provided by Adviscent under or pursuant to the Agreement, or caused by the incorrect use, abuse, neglect, improper installation or operation, accident misconfiguration and/or alteration, or corruption of the software or by the use of the software with other computer programs or on equipment or with services which Adviscent did not approve;

(iii) any inaccuracies, delays, interruptions, or errors occurring as a result of incorrect data or data which does not conform to required input formats;

(iv) the software being used or subject to actions by the Customer, or its representatives, employees or customers, in deviation of the stipulations or provisions set out in the latest version of the Documentation and the Agreement or in any way which is not compatible with the software’s normal use.

If a malfunction, error or problem of whatever nature in the software is found upon investigation by Adviscent not to be Adviscent's responsibility under these Software Terms, Adviscent may in its sole discretion charge the Customer on a time and material basis at Adviscent's then-current rates for all time spent and all costs and expenses otherwise incurred by Adviscent in the course of and/or in consequence of, such investigation.

The Customer acknowledges that it accepts all responsibility for selecting the software to meet its economic or other requirements and that Adviscent does not warrant that the software will be suitable for or to achieve such requirements.

Except as expressly stated in the Agreement, all warranties and guarantees concerning the use, supply or purported supply of, or failure or delay in supplying and installing, the software or Documentation or any related services whether express or implied by Law or otherwise (including those relating to satisfactory quality and fitness for purpose) are excluded to the extent permitted by Law.

Where the Customer would violate any right of a third party through its normal and agreed use of the software as provided in the Agreement (and excluding any other claims) and such party would issue a corresponding claim against the Customer, the Customer shall promptly inform Adviscent thereof in writing and refrain from all communication with the third party. Adviscent will, at its own choice and at its own cost, procure for the Customer the right to use the software as provided under the Agreement or take back the software at the billed Charges minus a reasonable compensation for usage. The latter shall apply only if Adviscent can not solve the issue with reasonable effort in any other manner or can not reasonably be expected to solve it in that manner.

V. Specific Terms and Conditions for services

A. Service Delivery Terms

Where relevant, the Customer shall, without prejudice to Adviscent’s audit rights, allow access to Adviscent (and its authorised agents) to enter the relevant location at any reasonable time and upon giving the Customer reasonable notice in order to carry out agreed services.

Unless otherwise agreed in writing, delivery dates and timelines for any services are estimates and indicative only.

Adviscent's performance depends upon the Customer's timely and effective cooperation in connection with the services, including providing Adviscent with reasonable facilities, timely and sufficient access to appropriate locations and site infrastructure, networks, electronical connection to adequate power sources, information, and appropriately skilled Customer personnel, and prompt responses to questions and requests. Adviscent shall not be liable for any failure or delays in performing the services to the extent that the failure or delay is caused by the Customer's failure to cooperate or the Customer’s changed requirements. Unless otherwise specified in writing, Adviscent may rely upon the accuracy and completeness of data, material and other information and instructions furnished by the Customer, without any independent investigation or verification.

Adviscent will try to accommodate work schedule requests of the Customer to the extent commercially practicable but Adviscent reserves the right to change such schedules due to internal business reasons, at its discretion.

B. Maintenance and Support Services

Unless otherwise agreed in the Individual Contract, any maintenance and support services are agreed for an initial term of 5 years as from the date of installation and commissioning of the Product to which these services apply. Either Party can terminate the maintenance and support services upon expiry of the initial term by providing written termination notice to the other Party at least 3 months in advance of lapse of the term. In absence of such termination notice, the term for maintenance and support services shall be prolonged for consecutive 1 year periods, unless terminated by either Party by providing written termination notice to the other Party at least 3 months in advance of lapse of the then-current term.

Unless otherwise agreed and upon payment of all Charges, Adviscent will continue to provide support and maintenance services and invoice applicable Charges for as long as the Customer makes use of the Product.

1st level support is handled by the Customer itself. 2nd and 3rd level support is handled by Adviscent. The Customer defines a set of people who are authorised to contact 2nd and 3rd level support of Adviscent and informs Adviscent accordingly.

Regular support hours are Monday to Friday from 8:00 to 18:00, excluding public holidays[1]. During regular support hours, Adviscent's 2nd level support is reachable either by phone or through the ticketing system and accessible for incidents of all severity levels, change and service requests. Outside regular support hours, an around-the-clock hotline is accessible for incidents with severity level critical and serious only.

During upfront communicated aintenance windows typically planned works are performed such as patching or implementation of changes. IT services may not be available during that period.

Adviscent reserves the right to perform urgent maintenance works at any time. In such events Adviscent will try to inform the Customer prior to commencing maintenance works.

Each incident which results in a faulty or unexpected behavior of the IT services according to the service description, is categorised according to the following severity levels:

Severity

Category

Description

1

critical

Complete outage of internet-facing platform or outage of IT services affecting at least 80% of the users and making it impossible to maintain the Customer's business operation, e.g. because of defective server platforms, network outages, etc.

2

serious

Outage or impairment of important services making it difficult for the Customer to work. The Customer's business operation is partially impacted, e.g. because of low performance in the network, latency, non-availability of single or less important applications, etc.

3

minor

Defects and outages affecting individual users or parts of the IT services which overall do not affect the Customer's business operation. Typically only individual users or systems are affected, e.g. due to profile/role conflicts, access to supporting applications, etc.

An outage of IT services is given if:

(i) Adviscent’s or its subcontractor’s monitoring system has detected the outage (probe down for 3 consecutive intervals) or an authorized IT contact of the Customer has reported an incident either by phone or through the ticketing system;

(ii) at least 80% of the users are affected; and

(iii) the service verifiably is not available, i.e. outages or defects of the monitoring system can not be considered as an outage of the IT service.

In the event of an outage, the root-cause is being investigated by Adviscent and reported to the Customer.

The reaction time defines the time span from when an incident is reported until the support engineer has responded back to the Customer and has commenced with solving the issue:

Maximum reaction time

Critical incident

Serious incident

Minor incident

Regular support hours

< 4 hours

< 8 hours

best effort

Outside regular support hours

< 6 hours

best effort

best effort

 

Availability class

Availability

Measurement window

Measurement period

Single site, Non redundant server

95.0%

business-critical hours

1 calendar month

Single site, redundant server

98.0%

 

 

Dual site, redundant server

99.9%

 

 

Availability and outage time of the IT services is calculated and measured by Adviscent’s or its subcontractor’s monitoring system, which runs within Adviscent’s or its subcontractor’s datacenters as follows:

Urgent maintenance works are not considered as outage time and hence do not affect service availability calculations, as well as outages caused by Force Majeure.

If incident identification and analysis verifiably require the Customer's or one of its application partner's participation, measurement of outage time starts from the point when an authorised IT contact can provide a clear and reconstructable problem description to Adviscent's 2nd level support, either by phone or through the ticketing system. If incident resolution requires the involvement of the Customer or one of its application partner, non-availability of contact people will be deducted from the total outage time.

Where the Product has not been used in accordance with the terms as set out in the Agreement, Adviscent has the right to provide support and maintenance services as it sees fit, but reserves the right to charge the Customer in addition for any such services as agreed between Adviscent and the Customer in the Individual Contract.

C. Service Warranty

Adviscent shall provide services in accordance with generally accepted industry standards and shall exercise reasonable care and skill in doing so.

The Customer’s sole and exclusive remedy shall be the re-performance of any defective service, but only if the defect is reported within 14 days from the date of delivery of the service with a clear description of such defect.

This clause describes the entire extent of Adviscent’s warranty obligations for services, both in regard to the kind of defects or errors, as well as to the manner of error correction.

VI. Miscellaneous

A. Transfer

The Customer may only transfer its rights and obligations under the Agreement provided that it has obtained Adviscent’s prior written consent and provided that its successor shall comply with the terms and conditions of the Agreement. Adviscent is entitled to refuse its consent without motivation and based on reasons which it deems opportune. Moreover, Adviscent may make its consent subject to the fulfilment of the conditions which it deems necessary, without any claim or right to Damage for the Customer towards Adviscent.

B. Non-exclusivity

Nothing in the Agreement restricts or hinders the possibility for Adviscent to provide any services and/or materials to third parties, or to develop materials for itself or third parties which may compete with the Product, regardless of a possible resemblance with the Product. Adviscent is entitled to use its general knowledge, skills and experience and all ideas, concepts, know-how and techniques which it has gathered or used in the framework of the provision of the Product.

C. References

Adviscent has the right to use the name and logos of the Customer on reference lists and in publicity regarding its provision of services as well as using the same information and high level information in relation to the Agreement (e.g. average contract value) in requests for public or private calls for tender.

D. Waiver and remedies

The situation where a Party does not or extends the time to claim, invoke or apply a right, sanction or procedure, shall not be considered to constitute a waiver or renunciation of rights. Unless explicitly specified otherwise, the rights and remedies of a Party under the Agreement apply cumulatively with and do not exclude any other rights and/or remedies granted to such Party under the Agreement and/or applicable Law.

E. Survival

The provisions of this Agreement that are intended to survive due to their sense and scope will also survive after the end, lapse, full execution or nullity of this Agreement.

F. Severability

In the event one or more provisions (or part thereof) of the Agreement are deemed or declared to be null and void by virtue of a final judgment of a competent court, the other provisions will maintain their binding force and scope without modification. The Parties shall replace the null and void provision (or part thereof) by a new provision which embodies as much as possible, and to the maximum extent allowed by Law, the original purposes of the provision that was declared null and void.

G. Notification

All mandatory or permitted notifications under this Agreement will be considered to be communicated legitimately provided that such notification was made in writing and was delivered personally, by courier, mail or e-mail, to the Parties using the latest communicated communication details.

Each change in communication details must be communicated to the other Party. In the absence of such communication all notifications communicated to the latest communicated communication details will be considered to be made legitimately.

H. Changes

Adviscent reserves the right to change the present Terms and Conditions and the Data Protection Terms at all times upon providing 1 month prior written notice to the Customer.

I. Independence

With respect to the conclusion and execution of the Agreement, Adviscent acts as an independent service provider. Nothing in the Agreement nor the behavior of the Parties during the execution of the Agreement will be presumed to give rise to the establishment of a partnership, temporary partnership, joint venture or any other collaboration form between the Parties.

J. Mandatory Laws

If the Customer believes that it has rights to act against or outside the Agreement based on Mandatory Laws, the Customer shall not exercise such rights unless and until it has provided 30 calendar days prior notice to Adviscent, and Adviscent, in its full discretion, has not provided an alternative remedy.

VII. Applicable Law and Jurisdiction

A. Applicable Law

The Agreement is governed by and will be interpreted in accordance with substantial Swiss law.

B. Jurisdiction

Any dispute with respect to the validity, interpretation or execution of the Agreement will be exclusively settled by the courts of Zurich 1.

 

[1]    New Year's Day (January 1), Berchtolds Day (January 2), Good Friday, Easter Monday, Ascension Day, Whit Monday, Swiss National Day (August 1), Christmas Day (December 25), Boxing Day (December 26).

Get in contact – our office in Zurich

Adviscent AG

Binzstrasse 23
8045 Zurich
Switzerland

+41 43 344 91 89
company@adviscent.com

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