Cloud Service Agreement

BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING PROCEDURE THAT INCORPORATES THE ACCEPTANCE OF THIS AGREEMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

This Cloud Services Agreement (this “Agreement”) is entered into effect as of the Effective Date by and between Customer and HEGIAS AG, Neugasse 6, 8005 Zurich (“HEGIAS”) and/or its Affiliates. Each of the parties may be referred to herein as a “Party” and collectively as the “Parties.” This Agreement includes the attached Annexes, Forms, Terms and Policies, as the case may be. Capitalized terms shall have the meanings set forth in this Agreement. For the purposes of this Agreement, Customer shall include its Affiliates for which Customer shall be directly responsible and the sole obligor.

Cornerstones of the Agreement:

• The Initial Term of the Agreement will be one (1) year starting from the Effective Date of the Agreement or the Order.
• The Agreement will be automatically renewed for another year unless either Party gives the other Party notice of non-renewal in writing at least fourteen (14) days prior to the expiration of the current term.
• Upon termination of the Agreement HEGIAS will terminate the access to its Services and Materials and cease all use of customer’s Confidential Information.
• Ninety (90) days after termination of the Agreement, all Customer and Resultant Data will be permanently deleted.
• Each Party will retain all of their right, title, and ownership in and to their Intellectual Property and related materials.
• Data, which the customer provides in public folders, can be used by HEGIAS and the other customers even after termination of the contractual relationship.
• The Agreement is governed accordance with the laws of Switzerland.

 

In consideration of the mutual covenants contained herein and such other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definiton and Interpretation

1.1. Unless the context otherwise requires, the following words and expressions shall have the following meanings:

“Agreement” means this Cloud Service Agreement.

“Access Credentials” means any username, Identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of Violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Affiliate” means any legal entity that owns, is owned by, or is commonly owned by a Party, whereby “own” means having more than 50% ownership or the right to direct the management of the entity.

“Authorized Users” means Customer’s employees, consultants, contractors, Customer’s clients and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.

“Customer” means an individual, a company or other legal entity entering into this Agreement and obtain the Services provided by HEGIAS

“Customer Data” means information, data, and other content, in any form or medium, that is (i) uploaded or otherwise provided, directly or indirectly from Customer or an Authorized User by or through using the Services and (ii) is specific to such Customer. For the avoidance of doubt, Customer Data does not include Personal Data.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, Software, hardware, databases, electronic systems, browsers and networks, whether operated directly by Customer or through the use of third-party Services.

“Data Protection Laws” means the relevant data protection and data privacy laws, rules and regulations to which the Customer Data are subject, and shall include, but not be limited to, the Swiss Data Protection Law (CC 235.1) and the EU General Data Protection Regulation 2016/679 (“GDPR”) principles and requirements.

“Device” means any personal Computer or computerized system.

“Documentation” means any manuals, instructions, or other documents or materials that HEGIAS provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or HEGIAS Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Effective Date” means the date on which this Agreement is mutually agreed between the Customer and HEGIAS.

“Fees” means any fees payable by Customer to HEGIAS for the services and HEGIAS material provided by HEGIAS and ordered by Customer.

“Harmful Code” means any Software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious Computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, Software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or HEGIAS Systems as intended by this Agreement.

“HEGIAS Materials” means the Services, Documentation, and HEGIAS Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, Software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by HEGIAS in connection with the Services or otherwise comprise or relate to the Services or HEGIAS Systems. For the avoidance of doubt, HEGIAS Materials may include Resultant Data and Customer Data, but do not include Personal Data.

“HEGIAS Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of HEGIAS or any subcontractor.

“HEGIAS Systems” means the information technology infrastructure used by or on behalf of HEGIAS in performing the Services, including all computers, Software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by HEGIAS or through the use of third-party Services.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance, except that with respect to infringement claims. Losses shall be limited to damages ordered to be paid in a final court decision based on demonstration of an infringement of a patent or copyright of the country in which the Subscription Services are delivered or any sum paid in accordance with an amicable settlement of the dispute concerned insofar as HEGIAS has agreed to such settlement.

“Multi-User-Mode” means entering and visiting three-dimensional objects in virtual reality simultaneously with other Authorized Users of HEGIAS’ Services.

“Order” means a written or electronic purchase order for HEGIAS Services in a form acceptable to HEGIAS signed or mutually accepted in electronic form by HEGIAS and Customer and referencing this Agreement. For the avoidance of doubt, an Order may also include an online order form provided by HEGIAS.

“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations in accordance with the Documentation.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Personal Data” means any information that relates to an identified or identifiable living individual. Different pieces of information, which collected together can lead to the identification of a particular person, also constitute Personal Data.

“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalogue, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Representatives” means the Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.

“Resultant Data” means data and information resulting from the use of the Services by the Customer. The Resultant Data may include Customer Data but does not include Personal Data. The Resultant Data may be stored, amended and used by HEGIAS in order to implement and improve its Services.

“Services” means the Subscription Services and other products and Services as identified on an Order.

“Software” means a set of instructions, data or programs used to operate Devices, networks and other IT infrastructure and to execute specific tasks.

“Storage Space” means the data storage capacity depending on the Subscription Plan chosen by the Customer.

“Subscription Plan” means the Subscription Services offered by HEGIAS which differ according to Storage Space, number of Authorized Users and other criteria. The Subscription Plans are displayed on HEGIAS’ website.

“Subscription Services” means the Subscription Services for access to and use of the Subscription Services Platform, Support Services and associated user documentation and supplemental materials as specified on an Order. The Subscription Services do not include any professional services which are offered by HEGIAS as separate offerings.

“Subscription Services Platform” means HEGIAS’s data storage facilities, computer Software and associated central Software application environment, infrastructure and communication Services used by HEGIAS to provide the Subscription Services.

“Support Services” means the support and maintenance for the Subscription Services as provided in accordance with a separate Agreement.

“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other Software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to HEGIAS.

1.2. The interpretation and construction of this Agreement shall all be subject to the following provisions:

i. words importing the singular meaning include where the context so admits the plural meaning and vice versa;

ii. words importing the masculine include the feminine and the neuter;

iii. references to any person shall include natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assignees or transferees;

iv. headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement

2. Service

2.1. Access and Use. Subject to and conditional on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, HEGIAS hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. HEGIAS shall provide to Customer the Access Credentials as of the Effective Date. The total number of Authorized Users, the maximum Storage Space or other criteria for a specific Subscription Plan will not exceed the specification set forth in the applicable Order, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. In case the Subscription Plan is allocated to specific Devices, Services may not be transferred to another Device, except when the original Device has been decommissioned.

2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) HEGIAS has and will retain sole control over the operation, provision, maintenance, and management of the HEGIAS Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the HEGIAS Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or HEGIAS; (ii) results obtained from any use of the Services or HEGIAS Materials; and (iii) conclusions, decisions, or actions based on such use.

2.3. Changes. HEGIAS reserves the right, in its sole discretion, to make any changes to the Services and HEGIAS Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of HEGIAS’s Services to its Customers; (ii) the competitive strength of or market for HEGIAS’s Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

2.4. Data Protection. To the extent that Customer Data comprises Personal Data is hereby acknowledged that HEGIAS is acting as data processor. HEGIAS shall: (i) process the Customer Data that is Personal Data only on Customer’s instructions (including in accordance with this Agreement) and applicable data protection laws binding on HEGIAS; (ii) take appropriate technical, organizational and security measures against unauthorized access to or unauthorized alteration, disclosure, destruction or loss of such Personal Data, (iii) take reasonable steps to ensure that employees and/or subcontractors used by HEGIAS to provide the Services are aware of and are suitably instructed in such technical, organizational and security measures, and (iv) unless prevented by law, promptly refer to Customer any requests, notices or other communication from data subjects or a data protection authority. Further information can be obtained in HEGIAS’ data privacy policy.

3. Customer obligations

3.1. Authorization. If an individual is entering into this Agreement on behalf of a company or other legal entity, the individual represent that he/she has the authority to bind such entity to the terms and conditions of this Agreement.

3.2. Use Restrictions. Customer may permit any other Person to access or use the Services or HEGIAS Materials but remain responsible for such Person to comply with the rules and regulations of this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Services or HEGIAS Materials; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or HEGIAS Materials, in whole or in part; (c) bypass or breach any security device or protection used by the Services or HEGIAS Materials or access or use the Services or HEGIAS Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (d) input, upload, transmit, or otherwise provide to or through the Services or HEGIAS Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (e) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, HEGIAS Systems, or HEGIAS’s provision of Services to any third party, in whole or in part; (f) remove, delete, alter, or obscure any trademarks, specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or HEGIAS Materials, including any copy thereof; (g) access or use the Services or HEGIAS Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; or (h) otherwise access or use the Services or HEGIAS Materials beyond the scope of the authorization granted under this Section 2

3.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and HEGIAS Materials); and (b) notify HEGIAS of any such actual or threatened activity.

3.4. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, keep updated, and operate in good repair and in accordance with the specifications all Customer Systems as well as Third Party Material on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as HEGIAS may reasonably request to enable HEGIAS to exercise its rights and perform its obligations under and in connection with this Agreement. Customer, at Customer’s expense, will provide timely participation of Customer’s functional and/or information technology staff as HEGIAS reasonably deems necessary for the timely delivery of the HEGIAS Services as contemplated in this Agreement.

3.5. Effect of Customer Failure or Delay. HEGIAS is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

3.6. Customer Responsibilities. Customer is responsible for providing all network connections and links between Customer’s local network(s) and the Subscription Services Platform for the implementation and execution of the Subscription Services as provided in HEGIAS’s technical specifications. Customer is responsible to maintain connectivity and public bandwidth of sufficient capacity for the operation of the Subscription Services. Customer has the sole responsibility for installation, testing and operations of facilities, telecommunications and internet services, equipment and Software upon Customer’s premises necessary for Customer’s use of the Subscription Services, and for paying all third-party access fees incurred by Customer to access and use the Subscription Services. Further, Customer is responsible to maintain functionality of all interfaces with Third Party Material, e.g. by updating/upgrading to the latest Software version.

4. Service levels and Support

4.1. Service Level. HEGIAS will provide the Services to Customer in accordance with HEGIAS’ Service Level Agreement.

4.2. Support Services. The Services include HEGIAS’s standard support services as outlined in the HEGIAS Service Level Agreement. Customer may purchase enhanced Support Services separately at HEGIAS’s then current rates.

5. Data Backup

5.1. HEGIAS Backup. The HEGIAS Systems are programmed to perform routine data backups as set out in HEGIAS’s backup policy in effect from time to time (the “Backup Policy”). Upon Customer’s written request, HEGIAS will deliver to Customer its then most current back-ups of Customer Data and Resultant Data as and when set forth in the Backup Policy. In the event of any loss, destruction, damage, or corruption of Customer Data and Resultant Data caused by the HEGIAS Systems or Services, HEGIAS will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from HEGIAS’s then most current backup of such Customer Data or Resultant Data in accordance with the then current Backup Policy.

6. Security

6.1. Information Security. HEGIAS will employ reasonable security measures to protect the integrity of HEGIAS Systems, Data, Customer Data and Resultant Data in accordance with current technical standards.

6.2. Data Breach Procedures. In accordance with current data protection laws, HEGIAS will notify Customer of a data breach or security incident as soon as reasonably practicable.

6.3. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and HEGIAS Materials directly or indirectly by or through the Customer Systems or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.4. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.

7.1 Fees and payment

7.1. Fees and Payment Timeframe for the Initial Term. The Fees payable by Customer to HEGIAS for the Initial Term as defined in Section 1 are set forth on HEGIAS’ website or in an Order and are payable in the currency set forth in the Order or invoice prior to be authorized to receive Services or HEGIAS Material except as for the trial period or if the Fee is invoiced to the Customer. Services or HEGIAS Material are only available to the Customer under the condition that the Fees for the Initial Period are paid in full.

7.2. Fees and Payment Timeframe for the Renewal Term. The Fees payable by Customer to HEGIAS for the Services for the Renewal Term(s) as defined in Section 2 as well as the respective currency are set forth on HEGIAS’ website or in the invoice issued to the Customer and are payable prior to the commencement of the respective term.

7.3. Late Payment. In the event of non-payment in whole or part of any Fees due under this Agreement within the timeframe as specified in the Order, HEGIAS shall be entitled to charge interest on the outstanding sum unpaid from the due date until the actual date of payment at a rate equal to five percent (5%) per annum. In the event that payment that is properly owed under this Agreement is not made when due, Customer will be in material default under the terms of this Agreement, and HEGIAS may invoke any or all available remedies, including the right to suspend its performance under this Agreement. Customer will reimburse HEGIAS for all costs and expenses incurred by HEGIAS arising from HEGIAS’s collection of amounts due under this Agreement, including, without limitation, reasonable attorneys’ fees.

7.4. Subscription Plans. HEGIAS offers different plans for the subscription of Services as described on HEGIAS website or other marketing material provided by HEGIAS. If Customer decides to upgrade to a larger Subscription Plan, Fees already paid for the smaller Subscription Plan will be accounted for in the invoice for the larger Subscription Plan. In case of a downgrade from a lager to a smaller Subscription Plan, Section 5 applies.

7.5. Non-Refundable. All Fees are non-refundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of taxes.

7.6. Taxes. Customer agrees to pay all taxes or levies of whatever nature arising out of or in connection with this Agreement, including the sale, delivery, or use of the HEGIAS Services (including VAT) or any other activities hereunder, excluding taxes based on HEGIAS’s net income. Customer will reimburse and indemnify HEGIAS in full for any of the foregoing taxes or levies that are paid by HEGIAS for which Customer is responsible hereunder. If Customer is required by law to withhold or deduct any amount from the Fees, Customer will increase the Fees paid to HEGIAS such that HEGIAS receives the full amount of Fees specified under this Agreement. If Customer asserts that any transaction under this Agreement is tax exempt, Customer will provide HEGIAS with a tax exemption certificate acceptable to the applicable taxing authority.

7.7. No Deductions or Setoffs. All amounts payable to HEGIAS under this Agreement shall be paid by Customer to HEGIAS in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued by HEGIAS or any deduction or withholding of tax as may be required by applicable Law). Bank charges for transfers shall be borne by Customer.

8. Confidentiality

8.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 2, “Confidential Information” means Information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including Information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.

8.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

8.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 4, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (e) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 8. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its representatives.

8.4. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

9. Intellectual protperty rights

9.1. Reservation of Rights. Each Party will retain all of their right, title, and ownership in and to their Intellectual Property and related materials. HEGIAS will retain all right, title to and ownership of all documentation, Software, techniques, tools, processes and other deliverables used in and/or developed by HEGIAS in the course of performing the Subscription Services, Support Services and other Services under this Agreement (collectively, “HEGIAS IP“). HEGIAS IP includes, without limitation, all written materials, copyright and patent rights, and other Intellectual Property rights.

9.2. HEGIAS Materials. All right, title, and interest in and to the HEGIAS Materials, including all Intellectual Property Rights therein, are and will remain with HEGIAS and, with respect to Third-Party Materials, the applicable third-party provider owns all right, title, and interest, including all Intellectual Property Rights, in and to the Third- Party Materials. Customer has no right, license, or authorization with respect to any of the HEGIAS Materials except as expressly set forth in this Agreement or the applicable third-party license, in each case subject to Section 1. All other rights in and to the HEGIAS Materials are expressly reserved by HEGIAS.

9.3. Customer Data. Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data that is not shared in the public library of the Subscription Services Platform, including all Intellectual Property Rights relating thereto. Customer is aware of the fact that deleting Customer Data in the private library of the Subscription Services Platform will result in such data being not available anymore for Authorized Users. Customer hereby unconditionally and irrevocably grants to HEGIAS an assignment of all right, title, and interests to the Costumer Data that is shared in the public library solely for the use of such data to provide Services on the Subscription Services Platform.

9.4. Resultant Data. Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Resultant Data, including all Intellectual Property Rights relating thereto.

9.5. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data uploaded to the public library of the Subscription Services Platform as are necessary or useful to HEGIAS to provide, enlarge or extend its Service and to allow other customers to use these Customer Data. Customer is aware of the fact that Customer Data in the public library of the Subscription Services Platform may not be deleted.

9.6. No transfer. Nothing in this Agreement shall transfer any Intellectual Property Rights in or arising from the Software, Services or Documentation to Customer but that these shall remain vested in HEGIAS, and no rights to use any such Intellectual Property Rights are granted, except as expressly stated in this Agreement. If, notwithstanding this, any Intellectual Property Rights in or arising from the Software, Services and Documentation are acquired by Customer (including any new Intellectual Property Rights), Customer hereby assign (and to the extent that any such Intellectual Property Rights are not capable of such assignment, agree to hold on trust) and agree to do all such things and sign all such documents as HEGIAS may reasonably require in respect of the assignment of all such Intellectual Property Rights to HEGIAS as may be appropriate.

10. Representations and warranties

10.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

10.2. Additional HEGIAS Representations, Warranties, and Covenants. HEGIAS represents, warrants, and covenants to Customer that HEGIAS will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Services and will devote adequate resources to meet its obligations under this Agreement.

10.3. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to HEGIAS that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by HEGIAS and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

10.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1 AND SECTION 10.2, ALL SERVICES AND HEGIAS MATERIALS ARE PROVIDED “AS IS.” HEGIAS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HEGIAS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR HEGIAS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, IN PARTICULAR COLOURS, MEASUREMENTS, PATTERNS, STRUCTURES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFULCODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

11. Indemnification

11.1. HEGIAS Indemnification. HEGIAS shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:

a) Third-Party Materials or Customer Data;

b) access to or use of the HEGIAS Materials in combination with any hardware, system, Software, network, or other materials or Service not provided by HEGIAS or specified for Customer’s use in the Documentation;

c) modification of the HEGIAS Materials other than: (i) by or on behalf of HEGIAS; or (ii) with HEGIAS’s written approval in accordance with HEGIAS’s written specification; or

d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of HEGIAS.

11.2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless HEGIAS and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “HEGIAS Indemnitee“) from and against any and all Losses incurred by such HEGIAS Indemnitee resulting from any Action by a third party (other than an Affiliate of a HEGIAS Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

a) Customer Data, including any Processing of Customer Data by the Services provided by HEGIAS in accordance with this Agreement;

b) any other materials or Information (including any documents, data, specifications, Software, content, or technology) provided by or on behalf of Customer or any Authorized User, including HEGIAS’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by HEGIAS;

c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or gross negligence or more culpable act or omission (including recklessness or wilful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement

11.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defence and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defence of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.

11.4. Litigation. If any of the Services or HEGIAS Materials are, or in HEGIAS’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or HEGIAS Materials is enjoined or threatened to be enjoined, HEGIAS may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and HEGIAS Materials materially as contemplated by this Agreement; (b) modify or replace the Services and HEGIAS Materials, in whole or in part, to seek to make the Services and HEGIAS Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and HEGIAS Materials, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and HEGIAS Materials, and require Customer to immediately cease any use of the Services and HEGIAS Materials or any specified part or feature thereof, provided that if such termination occurs, subject to Customer’s compliance with its post-termination obligations set forth in Section 14, Customer will be entitled to a refund of the remaining portion of any pre-paid Service fees for the parts of the Service for which use is prohibited.

11.5. SOLE REMEDY. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HEGIAS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND HEGIAS MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12. Limitations of liability

12.1. EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL HEGIAS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF HEGIAS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO HEGIAS UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.3. Third party products. In no event will HEGIAS be liable for any damage caused by third party products such as VR googles. The Customer is aware and will make any Authorized User aware of the fact that third party products may only be used in connection with HEGIAS Services or HEGIAS Material if and to the extent that the required security measures are in place.

12.4. Audio. In no event will HEGIAS be liable for any damage of Customers, Authorized Users and third parties caused by not completely closing a session when using HEGIAS’ Services or HEGIAS Materials. The Customer is aware and will make any Authorized User aware of the fact that not completely closing a session will result in the audio still running and sessions participants being able to overhear ongoing conversations.

12.5. Multi-user. Using the Services in Multi-User-Mode in the same room is done at one’s own risk.

12.6. Exceptions. The exclusions and limitations in Section 1 and Section 12.2 do not apply to HEGIAS’s liability for HEGIAS’s gross negligence or wilful misconduct.

13. Term and Termination

13.1. Initial Term. The initiaZ term of this Agreement or the related Order commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreements express provisions, will continue in effect until one (1) year from such date (the “Initial Term”).

13.2. Renewal Term. This Agreement or the related Order will automatically renew for additional successive annual terms unless earlier terminated pursuant to this Agreements provisions or either party gives the other party notice of non-renewal in writing or Customers makes the respective amendments in the online Customer account at least thirty (30) days prior to the expiration of the then-current term (each a, “Renewal Term” and, collectively, together with the Initial Term, the “Term“).

13.3. Suspension or Termination of Services. HEGIAS may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or HEGIAS Materials, without incurring any resulting obligation or liability, if: (a) HEGIAS receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires HEGIAS to do so; or (b) HEGIAS believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated.

13.4. Termination of Agreement. In addition to any other express termination right set forth elsewhere in this Agreement:

a) HEGIAS may suspend this Agreement and block access for the Customer or Authorized Users to the Services, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after HEGIAS’s delivery of written notice thereof. HEGIAS may terminate this Agreement and delete all Customer Data and Resultant Data, if amounts due remain unpaid for ninety (90) days;

b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and

c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

14. Effect of Termination or Expiration

14.1. Immediate Effect. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

a) all rights, consents, and authorizations granted by either party to the other hereunder will immediately terminate and HEGIAS may disable all Customer and Authorized User access to the Services and HEGIAS Materials;

b) unless otherwise expressly provided in this Agreement, HEGIAS shall immediately cease all use of any Customer’s Confidential Information and (i) return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer’s Confidential Information; and (ii) permanently erase all Customer’s Confidential Information from all Systems HEGIAS directly or indirectly controls in accordance with its data retention policy (approximately 90 days), provided that, for clarity, HEGIAS’s obligations under this Section 1(b) do not apply to any Customer Data and Resultant Data; and

c) Customer shall immediately cease all use of any Services or HEGIAS Materials and (i) return to HEGIAS, or at HEGIAS’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any HEGIAS Materials or HEGIAS’s Confidential Information; and (ii) permanently erase all HEGIAS Materials and HEGIAS’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to HEGIAS in a signed written instrument that it has complied with the HEGIAS requirements of this Section 1(c),

14.2. Customer’s Termination. Where Customer terminates this Agreement pursuant to Section 4(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the Effective Date of such termination and HEGIAS will: (i) refund to Customer Fees paid in advance for Services that HEGIAS has not performed as of the Effective Date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled.

14.3. HEGIAS Termination. Where HEGIAS terminates this Agreement pursuant to Section 4(a) or Section 13.4(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of HEGIAS’s invoice therefor.

14.4. Data Delivery. As the Resultant Data may not be used in other systems due to the specific data structure, HEGIAS is not obliged to provide the Customer with such Data upon termination of the Agreement or the non-renewal of an Order. For the avoidance of doubt, it is Customers sole responsibility to keep and maintain a backup of all Customer Data and HEGIAS is not liable for any data loss. Ninety (90) days after termination of the Agreement, all Customer Data in private libraries and Resultant Date will irrevocably be deleted.

14.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 8, Section 4, Section 11, Section 12, Section 14.4, this Section 14.5, and Section 15.9

15. Miscellaneous

15.1. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

15.2. Notices. Notices pursuant to this Agreement must be in writing and will be deemed effectively delivered to the party when delivered at the address provided in the online Customer account (or such other address as a party subsequently may provide by notice to the other party). Notices may be delivered: (i) by email using a method that positively establishes receipt of the email by the recipient; (ii) by personal, same or next day delivery; or (iii) by commercial overnight courier with written verification of delivery. All notices so given will be deemed given upon the earlier of receipt or three (3) days after dispatch.

15.3. Marketing. Subject to the warranties given in rest of this section, Customer accepts that HEGIAS can use the Customer’s trading name, brand name or logo strictly for HEGIAS’s marketing purposes; e.g., customer testimonials, success stories, presentations, or mentions of Customer as user of Service. HEGIAS warrants that it will not deface, modify or misuse in anyway any brand name or logo of the Customer. HEGIAS further warrants that it will only publish any business case, customer study or testimonial or such similar content with prior written approval of the Customer.

15.4. Entire Agreement. This Agreement constitutes the entire understanding between HEGIAS and Customer with respect to the subject matter hereof and supersedes any prior representations, statements or warranties given by either Party. Any change to the terms of this Agreement must be in writing and signed by both Parties. Terms and conditions presented in any ordering document or purchase order that differ from, conflict with or are not included in this Agreement, unless signed by a duly authorized representative of HEGIAS, shall not become part of this Agreement.

15.5. Assignment. Neither this Agreement nor any of Customer’s rights or obligations hereunder may be assigned or delegated by Customer to any third party, including without limitation in connection with a merger, acquisition, reorganization, outsourcing, change of control or under any other circumstance without the prior written consent of HEGIAS. Any such purported assignment or delegation shall be void and of no effect and shall constitute an incurable breach of this Agreement resulting in the automatic termination of this Agreement and all rights granted to Customer hereunder.

15.6. Force Majeure. HEGIAS shall not be liable for any breach of this Agreement due to any circumstances outside HEGIAS’s reasonable control including, but not limited to, acts of God, fire, acts of government, war, military operation or riot, accidents, embargo, industrial actions, terrorist threat, pandemics, hereinafter referred to as “Force Majeure”. In case of Force Majeure, HEGIAS shall notify the Customer in writing providing it with all relevant Information thereto.

15.7. Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party.

15.8 Waiver and Severability. The waiver by a Party of one breach or default by the other Party under this Agreement will not constitute the waiver of any subsequent breach or default. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. If any court or competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.

15.9. Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be construed and governed in accordance with the laws of Switzerland without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction. The Parties hereby submit to the exclusive jurisdiction and venue of Zurich to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including any non-contractual disputes or claims) and waive any objections based on forum non conveniens.

15.10. Equitable Relief. Customer acknowledges that HEGIAS’s rights in and to the HEGIAS materials are unique and that financial remedies will be insufficient to compensate HEGIAS for any infringement of such rights. HEGIAS shall be entitled to seek injunctive and other equitable relief to protect, maintain, defend, enforce, and preserve such rights, in addition to any other remedy that may be available.

Zurich, May 12^th, 2020 – Version 1.0