By ordering software products from Archilyse AG (the “Provider” or “Archilyse”), available on the homepage www.archilyse.com, the user (“User”) unconditionally accepts the following General Terms and Conditions (“General Terms and Conditions” or “GTC”).
The Provider reserves the right to change these terms and conditions at any time. The amended Terms and Conditions shall enter into force upon publication on the Website.
SOFTWARE AS A SERVICE (SAAS) – CONTRACT
The Provider provides SaaS services for its Users via the medium of the Internet in the area of business software.
The subject of the contract is:
the provision of the Provider’s software for use via the Internet, and
the storage of the User’s data (data-hosting).
The Provider provides the User with the software solution “Archilyse.one” in the respective current version via the Internet for use against payment for the duration of this contract. For this purpose, the Provider stores the software on a server that is accessible to the User via the Internet.
The Provider continuously develops the software and improves it through ongoing updates and upgrades. The respective current scope of functions results from the service description on the Provider’s website (www.archilyse.com).
The Provider continuously monitors the functional capability of the software and eliminates software errors to the extent technically possible. An error exists in particular if the software does not fulfill the functions specified in the service description, delivers incorrect results or does not function properly in any other way, such that the use of the software is impossible or considerably impaired.
RIGHT TO USE THE SOFTWARE
The provider grants the User the non-exclusive and non-transferable right to use the software “Archilyse.one” for the duration of the contract within the framework of the SaaS services in accordance with its intended use.
The User may neither duplicate nor edit the software unless this is expressly permitted in the current service description on the website. In particular, it is prohibited to install the software, even temporarily, or to store it on data carriers (hard disks or similar) of the hardware used by the User (with the exception of main memory).
The User is not entitled to make this software available to third parties for use against payment or free of charge. The User is expressly prohibited from making the software available to third parties in any form, in particular also the data obtained from the software.
In addition to the “Archilyse.one” software, the User has the option of ordering various additional packages (“add-ons”) from the Provider. Such add-ons can in particular enable integrations to third-party software. If access rights are required for the use of such an add-on, the User expressly agrees to grant all necessary access rights by ordering the add-on.
The Provider provides the User with a defined storage space for a fee.
The Provider shall ensure that the stored data can be accessed via the Internet within the scope of technical possibilities.
The User undertakes not to store any content on the storage space, the provision, publication and use of which violates applicable law or agreements with third parties.
The Provider is obliged to take appropriate and reasonable precautions against data loss and to prevent unauthorized access by third parties to the User’s data within the scope of technical possibilities. For this purpose, the Provider shall make regular backups, check the User’s data for viruses and install firewalls.
After termination of the contract, the User is still entitled to demand the return of his data for one month (from the termination date) under the provisions of the paragraph above. The Provider is not obliged to store the User’s data beyond this period. If a User requests the return of data after the expiration of the one-month period and the data is still available at the Provider, the Provider shall return the data to the User after payment of the costs actually incurred for this purpose. The Provider reserves the right to use and save the data in accordance with Clause 14 after the contract has been terminated.
SUPPORT & CUSTOMER SERVICE
The Provider will answer inquiries (by e-mail or telephone) of the User regarding the software “Archilyse.one” and other SaaS services within the business hours published on the website www.archilyse.com by telephone or in writing as soon as possible after receipt of the respective question.
IMPAIRMENT OF ACCESSIBILITY
Adjustments, changes and additions to the SaaS services that are subject of the contract, as well as measures that serve to determine and remedy malfunctions, will only lead to a temporary interruption or impairment of accessibility if this is required because of technical reasons.
Monitoring of the basic functions of the SaaS services takes place daily. The maintenance of the SaaS services is generally carried out from Monday to Friday 08:00- 17:30. In case of serious errors – the use of the SaaS services is no longer possible or significantly restricted – the maintenance is usually carried out within 2 hours from the time of knowledge or notification by the User. The Provider will notify the User about the maintenance work in due time and perform it as soon as possible.
The availability of the individual SaaS service is 99.5% on an annual average.
OBLIGATIONS OF THE USER
The User is obliged to prevent unauthorized access to the software by third parties by taking suitable precautions. For this purpose, the User shall, to the extent necessary, instruct its employees to comply with copyright law. In particular, the User shall instruct its employees not to make any copies of the software or to pass on access data to third parties.
The User itself is responsible for the entry and maintenance of its data and information required for the use of the SaaS services – without prejudice to the Provider’s obligation to back up data.
The User is obliged to check his data and information for viruses or other harmful components before entering them and to use state of the art virus protection programs for this purpose.
When using the SaaS services for the first time, the User must create a User Account and generate a “User ID” and a password itself, which are required for the further use of the SaaS services. The User is obliged to keep the “User ID” and password secret and not to make them accessible to third parties.
The User is obliged to provide true, accurate, current and complete registration and profile data requested by the Provider.
The User shall notify the Provider immediately of any unauthorized use of the “User ID” and password or other attacks on security. In such cases, the Provider shall, in agreement with the User, change the User’s “User ID” and password.
The User shall take all measures which, in the Provider’s due discretion, are necessary to maintain or improve the security of the data, the software and the network connections.
The User undertakes to pay the Provider for the provision of software and data hosting the fee agreed in accordance with its subscription plus statutory VAT.
The Provider shall send the User a statement of the contractually owed fee.
The Provider shall be entitled to adjust the fees and service contents by notifying the User in writing as of the next possible termination date. Reasons for such a change in service are, in particular, technical progress and further development of the software. If the User does not wish to continue the contract at the changed rates, he is entitled to extraordinary termination with a notice period of 14 days to the date of the change.
In the event of late payment, the Provider is entitled to temporarily restrict or block the User’s access. In this case, the agreed fee remains owed in full even during the restriction. Access will be reactivated after payment of the outstanding invoices. Clause 38 remains reserved.
WARRANTY / LIABILITY
The Provider warrants the functional and operational readiness of the SaaS services in accordance with the provisions of these GTC.
The User undertakes to indemnify the Provider against all claims of third parties based on the data stored or provided by the User and to reimburse the Provider for all costs incurred by the Provider due to possible infringements of rights.
The Provider is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. The Provider shall immediately notify the User of the removal and the reason for it. The block is to be lifted as soon as the suspicion is fully invalidated.
Within the framework of the legal provisions, the Provider excludes any liability towards the User (or any third party), in particular for the fulfillment of its contractual and non-contractual obligations and for the loss of data and loss of profit (including for negligence). This exclusion of liability also applies to the damage caused directly or indirectly by the use of the software “Archilyse.one”.
In all cases, regardless of the basis of liability, the mutual liability of the contracting parties shall be limited to the amount of the monthly access fees in the last twelve months before the damage occurred.
The contractual relationship begins with the application and registration by the User.
The contract term corresponds to the term agreed between the end User and Archilyse. The respective order (Order Form) records the details.
Form of termination: The notice of termination must be in writing, whereby delivery via e-mail is sufficient.
The parties are free to terminate the contract immediately for good cause. An important reason for the immediate termination of this contract exists for the Provider in particular
if the User is declared bankrupt or the bankruptcy proceedings are discontinued for lack of assets;
if the User is in arrears with payment obligations arising from this contractual relationship to the extent of at least one month’s fees and has been reminded unsuccessfully by setting a grace period of two weeks and threatening to terminate the contract;
if the User culpably violates legal provisions or infringes copyrights, industrial property rights or rights to the name of third parties when using the services that are the subject matter of the contract;
in case of use of the distributed services for the purpose of promotion of criminal, unlawful and ethically questionable acts by the User.
The Provider undertakes to maintain secrecy about all confidential processes, in particular business or trade secrets of the User, that come to its knowledge in the course of the preparation, execution and fulfillment of this Contract and not to disclose this information to outside third parties without the authorization of the User. This applies to any unauthorized third parties, unless the disclosure of information is necessary for the proper fulfillment of the Provider’s contractual obligations. The Provider reserves the right to use the data as stated and in accordance with Clause 14.
The User authorizes the Provider to publicly name the User as a reference and to use general information about the agreed contract in an appropriate manner for marketing and sales purposes.
The contracting parties are aware that the conclusion and fulfillment of this contract may result in the processing of personal data relating to the contracting parties. They agree that such data may be used to process and maintain their business relationships and may also be disclosed for this purpose to third parties, such as manufacturers, suppliers, holders of intellectual property rights, in Switzerland or abroad. In such cases, the disclosing contractual partner will ensure that data protection is guaranteed by taking suitable organizational, technical and contractual precautions. Through the use of the software “Archilyse.one” by the User, the provider does not become the owner of any data collections.
INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights to the software “Archilyse.one”, which are made available to the User for use, are entitled to the provider or the software manufacturer. The User does not acquire any rights to the software “Archilyse.one” (documentation included), the developments and the know-how of the provider, unless this is expressly regulated otherwise in the contract or in the appendix.
The User is prohibited from copying, modifying, decompiling or reproducing the intellectual property rights of Archilyse, including its software.
PROVIDER’S RIGHT OF USE
The Provider has the right to save copies of data produced by the Provider, which are provided by the User for the purpose of data analysis by the Provider, as well as the results of the data analysis for an indefinite period of time.
The Provider is also authorized to reproduce, change and edit the data copies made and the results of the data analysis in anonymised form and to use them comprehensively and without further restrictions for the purpose of improving the Archilyse products and software. The provider is also given the right to use the datasets and the results of the data evaluations in connection with services to third parties and to make these data accessible to these third parties.
Unless a stricter form is stipulated in this Contract or by law, all notifications shall be sent in writing to the addresses specified during the User’s registration or on the Provider’s homepage. Sending by e-mail satisfies the written form requirement. Notifications of the Provider to the e-mail address indicated by the User upon registration shall in any case be deemed to be a written notification.
The contracting parties shall be obliged to notify the other contracting party of any changes of address (including e-mail) without undue delay, failing which notifications shall be deemed to have been received with legal effect at the address last notified in writing.
In the event that individual clauses of this contract are wholly or partially invalid, the invalid provisions shall be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued by the invalid provision is achieved. The same shall apply in the event that there are loopholes in this contract.
JURISDICTION & APPLICABLE LAW
With regard to all legal relationships arising from this contractual relationship, the parties agree that the law of the Swiss Confederation shall apply to the exclusion of the rules of private international law (PIL) and the UN Convention on Contracts for the International Sale of Goods (CISG).
Zurich is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the execution of this contractual relationship.
c/o Matthias Standfest