GTC
of ASMIQ I/O AG
Version April 1, 2023.
Subject to change at any time.
- Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as GTC) - together with the other contractual components - govern the business relationship between the customer and ASMIQ I/O AG (Baslerstrasse 60, 8048 Zurich, Switzerland; hereinafter referred to as ASMIQ) in connection with the use of the subscription management software ASMIQ.one (hereinafter referred to as ASMIQ.one).
1.2 References to persons apply equally to all genders and to a plurality of persons. - Availability
2.1 ASMIQ provides access to ASMIQ.one via a web interface for the defined contract term.
2.2 ASMIQ is committed to ensuring the highest possible and uninterrupted availability of the service. However, ASMIQ does not guarantee uninterrupted service or service at a specific time. Likewise, ASMIQ does not guarantee the completeness, authenticity and integrity of the data stored or transmitted via its system or the Internet.
2.3 Customers will receive the logins and passwords required to access ASMIQ.one.
2.4 During maintenance periods, ASMIQ.one may only be available with restrictions and individual interruptions.
2.5 ASMIQ reserves the right to rectify critical defects by means of hotfixes outside the maintenance windows without prior notice. - Further development of the software
3.1 ASMIQ maintains the software on an ongoing basis and develops it further in accordance with general requirements and the state of the art. These costs are included in the license and usage fees.
3.2 Insofar as ASMIQ provides updates to the software during the term of the contract, the above right of use shall apply to these in the same way.
3.3 ASMIQ shall not be obliged to provide new versions, upgrades or updates unless these are absolutely necessary to rectify defects or unless otherwise agreed between the parties.
3.4 Further services, in particular individual further developments, additional installation, consulting, customization or training services by ASMIQ, can be booked and purchased from ASMIQ for an additional fee and in accordance with additional agreements.
3.5 ASMIQ may add or remove functions or features and suspend or stop certain features altogether.
3.6 ASMIQ also reserves the right to charge a fee for each new function added to the system. The customer is free to purchase these chargeable functions. - Obligations of the customer
4.1 The customer shall use the software within the usual and reasonable scope and in accordance with the scope ordered.
4.2 The customer is obliged to provide in good time and free of charge all data, information, documents and personnel resources necessary for the preparation and provision of the service and its operation.
4.3 The customer is obliged to store passwords, identification codes, login data, etc. carefully and securely and not to make them accessible to unauthorized persons. Customers shall ensure that they only use the login on devices that are used exclusively by them or by persons authorized by them. As soon as there are indications that the usage and access authorizations have been unlawfully obtained by third parties or could be misused, the customer is obliged to inform ASMIQ immediately.
4.4 The customer is responsible for establishing and maintaining the telecommunications connection between the customer's computers and the transfer point required for the use of ASMIQ.one.
4.5 The customer is obliged to pay the agreed price for the use of ASMIQ.one in accordance with the agreed payment terms.
4.6 The customer shall notify ASMIQ as soon as possible of any changes in the price-relevant factors.
4.7 The customer is not permitted to obtain access to further modules that go beyond the agreed use. In this case, ASMIQ reserves the right to demand the remuneration normally owed for the respective module.
4.8 The customer is obliged to check data and information for viruses before sending them and to use state-of-the-art virus protection programs and software-compatible firewalls.
4.9 The customer is fully responsible for the data it processes. ASMIQ does not check the content for legality, accuracy, freedom from viruses or virus processing capability. The customer shall indemnify ASMIQ against all possible third-party claims. - Terms of payment
5.1 ASMIQ shall issue periodic invoices in advance for the remuneration to which it is entitled. Any discrepancies must be reported within ten days.
5.2 Invoices are payable net within 30 days by bank transfer to ASMIQ's account. After expiry of this payment period, the customer shall be in default without a reminder. Default interest of 5 percent per year is owed for late payment.
5.3 If the customer is more than 60 days in arrears with payments to ASMIQ, ASMIQ is entitled to terminate this contract with immediate effect for good cause.
5.4 All prices are in Swiss francs (CHF) and exclusive of VAT.
5.5 The offsetting of customer claims against ASMIQ is excluded. - Data storage/backup
6.1 ASMIQ shall provide the customer with a data server for the storage of application data in connection with the use of the software. The transfer of the application data to the data server shall take place by agreement between the parties.
6.2 The customer may access the stored application data within the agreed usage times. The customer is solely responsible for the storage and processing of the application data.
6.3 ASMIQ is responsible for backing up the customer's application data stored on the data server. Data backups are made daily. The data backups are stored by the provider for at least four weeks. After this retention period has expired, the provider may overwrite the stored application data.
6.4 ASMIQ shall provide the customer with a copy of the application data stored on the data server at any time upon request, but at the latest upon termination of the contract. The application data shall be handed over on a suitable data carrier and in a suitable format as agreed between the parties. The work required for this shall be invoiced to the customer on a time and material basis.
6.5 ASMIQ shall delete the customer's application data stored on the data server four weeks after the application data has been handed over to the customer in connection with the termination of the contract, unless the customer notifies the Provider within this period that the application data handed over to it is unreadable or incomplete. Failure to notify the Provider shall be deemed consent to the deletion of the Application Data. - Warranty
7.1 ASMIQ guarantees that ASMIQ.one fulfills the described and agreed functions during the available times. However, the customer acknowledges that malfunctions in ASMIQ.one cannot be completely ruled out even with the greatest care and that comprehensive functionality of the software cannot be guaranteed.
7.2 If a defect occurs, the customer informs ASMIQ via the web-based help center (ticket system).
7.3 If necessary, the customer shall support ASMIQ free of charge in remedying the defect and shall in particular provide all necessary documents, data, etc. that ASMIQ requires to analyze and remedy the defect.
7.4 Should ASMIQ's contractual services be defective, ASMIQ shall be obliged to rectify or re-perform them within a reasonable period of time after receipt of the notice of defects. The circumvention or suppression of a defect shall also be deemed to be a permissible rectification.
7.5 Further warranty claims by the customer (including the right to a reduction in the usage fee or to compensation for damages) are expressly excluded.
7.6 ASMIQ shall be released from its warranty obligation to the extent that a defect of ASMIQ.one is due to circumstances for which it is not responsible. - Liability
8.1 Any liability of ASMIQ for damages caused by slight and medium negligence is excluded to the extent permitted by law.
8.2 ASMIQ shall not be liable - to the extent permitted by law - in particular for indirect or consequential damages such as loss of profit, loss of data or damages resulting from downloads.
8.3 ASMIQ shall not be liable for damages caused by auxiliary persons engaged by ASMIQ or third parties (e.g. subcontractors, suppliers, etc.) as a result of slight or medium negligence.
8.4 ASMIQ shall not be liable - to the extent permitted by law - for damages resulting from the use of its services in breach of the law or the contract.
8.5 Claims arising from product liability and personal injury are reserved.
8.6 ASMIQ shall not be liable - to the extent permitted by law - for damages due to force majeure or disruptions caused in particular by a lack of Internet connection, unlawful interference with telecommunications equipment and networks, network overload, willful blockage of electronic access by third parties or interruptions. - Duty to inform
9.1 The parties shall inform each other of circumstances or events that could be of significance for the execution of this contract. In the event of extraordinary occurrences, the other party must be notified immediately. - Property and intellectual property rights
10.1 All pre-existing property rights (intellectual property rights and ancillary copyrights as well as expectancies to such) shall remain with ASMIQ or the third parties it engages. No intellectual property rights (copyrights, trademark rights, design rights or patent rights) are transferred by this contract. The customer is not entitled to submit or protect industrial property rights (intellectual property rights and ancillary copyrights as well as expectancies to such) or domain names from this business relationship alone without prior agreement to the contrary. All intellectual property rights arising in connection with the provision of services (including further or new developments), as well as organizational and program documents, shall belong to or remain with ASMIQ.
10.2 For the duration of the contract, the customer shall receive a non-exclusive, non-transferable and non-sublicensable right to use the service/software provided by ASMIQ and the documents made available, limited to the purpose of the contract. This does not include the right to edit or sell.
10.3 In particular, the customer is not entitled to copy, reverse engineer, decompile or otherwise translate any software provided.
10.4 All documents that ASMIQ makes available to the customer, including those in electronic form, may only be used and copied for the purpose of the contract.
10.5 The parties shall inform each other immediately if third parties assert the infringement of property rights through the provision of services. Without such immediate notification, the affected party waives the right to assert indemnification. The parties shall consult with each other regarding the defense against claims, support each other in an appropriate manner in the defense and keep each other informed of the progress of proceedings on an ongoing basis and without delay.
10.6 If claims are asserted against the customer by third parties, ASMIQ shall only be obliged to take one of the following actions:
- Replacement of the service with an equivalent service that does not infringe the rights of third parties; or
- Ensuring that customers can continue to use the service.
10.7 The assertion of claims for damages against ASMIQ shall be governed by the agreed liability provision.
10.8 The use of trademarks and logos may only take place with the written consent of the party concerned and must be within the scope of the fulfillment of this agreement.
10.9 Should the customer allow unauthorized third parties to use the software, the customer shall pay a contractual penalty for each individual case in the amount of the usage fee for two years, but at least CHF 50,000.00.
10.10. Payment of the contractual penalty shall not release the customer from its contractual performance obligations. The payment of the contractual penalty has no influence on ASMIQ's claim for damages against the customer. - Secrecy
11.1 The parties undertake to maintain confidentiality about the content of the contract and about all facts and information that are neither public knowledge nor generally accessible. In case of doubt, facts and information shall be treated confidentially.
11.2 The duty of confidentiality shall exist prior to the conclusion of the contract and shall remain in force indefinitely after the termination of this contract.
11.3 ASMIQ is entitled to report data protection and security breaches to the competent authorities. - Data protection
12.1 The parties undertake to comply with the relevant data protection legislation, in particular the Federal Act on Data Protection and the Ordinance to the FADP.
12.2 Personal data may only be processed for the purpose and to the extent necessary for the fulfillment and execution of the contract. The parties shall observe the principles of lawfulness, proportionality, purpose limitation, transparency and good faith.
12.3 ASMIQ processes subscription data of end customers exclusively on behalf of its customers. ASMIQ does not use customer data for its own purposes or for the purposes of third parties.
12.4 The parties undertake to support each other, if necessary, in the fulfillment of data protection claims of the end customers concerned, in particular claims for information, correction and deletion of data.
12.5 The parties shall ensure - subject to statutory retention obligations - that all personal data of the other party made available to them or any third parties involved in the performance of the contract shall be deleted in accordance with data protection regulations after termination of this contract or after the purpose has ceased to exist or has been fulfilled, and that any copies shall be returned.
12.6 ASMIQ may engage third parties (e.g. subcontractors, sub-suppliers) for the provision of its services. It shall remain responsible for the contractual provision of services by the third parties involved.
12.7 ASMIQ undertakes to lawfully transfer all statutory and regulatory data protection requirements to the third parties it engages. It guarantees the protection of the data by the third parties it engages at all times.
12.8 ASMIQ undertakes to store data exclusively in data centers in Switzerland and/or in the EU/EEA. Data transfer to a third country outside Switzerland, the European Union and the EEA is only possible after prior information of the customer and under the conditions of Art. 6 FADP. - Data security
13.1 The parties undertake to take all reasonable, necessary, technical and organizational measures to protect personal data. The technical and organizational measures must ensure the confidentiality, integrity, availability and resilience of the systems and services in connection with the processing in the long term. In addition to digitalized information and data security, the premises in which the data is processed must be access-protected.
13.2 The safety precautions must correspond to the current state of the art and be economically reasonable. In particular, ASMIQ assures its customers of the following measures:
- The entire data transfer is transmitted securely using encryption.
- ASMIQ uses up-to-date anti-virus programs and firewalls.
- ASMIQ backs up the data on the hosting server daily.
13.3 ASMIQ reserves the right to delete customer data infected with malware after prior consultation with the customer.
13.4 IT attacks and IT misuse with an impact on this contract must be reported to the other party immediately. The customer shall provide ASMIQ with existing logs in order to trace any attacks or misuse. - Assignment/transfer, extraordinary termination
14.1 The customer may only assign or transfer this contract - together with the other parts of the contract - or individual rights or obligations arising from it to third parties with the prior written consent of ASMIQ.
14.2 Each party is entitled to terminate this contract - together with the other parts of the contract - for good cause at any time and without notice. Good cause shall be deemed to exist in particular if the other party commits a material breach of contract and fails to remedy this breach within ten days despite a written warning. - Severability clause
15.1 Should individual provisions of this contract - together with the other parts of the contract - be invalid, incomplete or unlawful or should fulfillment become impossible, this shall not affect the validity of the remaining parts of the contract.
15.2 In this case, the parties undertake to immediately replace the provision in question with a valid provision that comes closest to the original intention in terms of its content. - Applicable law and place of jurisdiction
16.1 The contract with the customer shall be governed by Swiss law. To the extent permitted by law, the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG, SR 0.221.211.1) is excluded, as are the conflict of laws provisions of the Swiss Federal Act on Private International Law (IPRG, SR 291).
16.2 The place of jurisdiction is Zurich. (Partially) mandatory places of jurisdiction remain reserved.
ASMIQ I/O AG, March 2023