Nature of Services

1.1       The Company shall provide the Customer with the services specified in the Statement of Work (or interchangeably – “Offer”) and all other services as agreed from time to time under, or in connection with, this Agreement (“Services”). The Company’s services are not intended to be used as the sole basis for any business decision and are based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for the Company to guarantee.

1.2       The Company’s failure to perform its obligations under this Agreement will not be treated as a breach if and to the extent such failure is caused by the Customer’s failure to perform any of its obligations under this Agreement.

Terms of Payment

2.1       In consideration for the provision of the Services by the Company, the Customer must pay the fees specified in the Statement of Work.

2.2       The Company is paid for services performed on an hourly basis, based on an eight-hour working day, unless otherwise specified in the Statement of Work. The rate of the expenses to be invoiced shall be stated in the Statement of Work.

2.3       Services are recorded and invoiced to the Customer on a monthly basis, unless stated otherwise in the Statement of Work.

2.4       Unless stated in the SOW, all invoices are payable in cleared funds within fourteen (14) days after receipt of the invoice.

2.5       Unless otherwise stated in the Statement of Work, all fees specified are exclusive of all reasonable out of pocket expenses which are payable in addition by the Customer. The Company must provide receipts or other reasonable evidence to the Customer of all out of pocket expenses, together with the invoice related to such out of pocket expenses.

2.6       If any sum payable by the Customer to the Company is not paid in cleared funds by its due date, the Customer is in delay without further notice. The Company is entitled to charge interest on the overdue amount at no more than 8% p.a. of the amount outstanding. Interest will accrue daily from the due date up to the date of actual payment or before judgment.

2.7       All sums referred to in the SOW are exclusive of VAT, GST, withholding taxes or any other similar sales or turnover tax (if applicable); such taxes are payable by the Customer to the Company on the same payment terms as applies to the sums to which the taxes relate.

2.8       All payments made by a party under the SOW must be made free and clear of any present or future taxes including any withholding taxes, deductions, fees or other imposts, or any bank charges. If either party is required by law to make any deductions or withholdings from payments due under the SOW, such party must pay such additional amounts to the receiving party as may be necessary to ensure that the actual amount received by the receiving party after deduction or withholding (and after payment of any additional taxes due as a consequence of such additional amount) is equal to the amount that would have been payable to the receiving party if such deduction or withholding were not required. Each party further agrees to furnish an official receipt, or certified copy of it to the other evidencing the timely payment of such withholding or deduction to the proper governmental authority.

2.9       Unless otherwise agreed upon in the SOW, all payments by the Customer must be in Swiss Francs. To the extent fees are indicated in any other currency, payments will be computed at the exchange rate prevailing on the due date at the Reuters Foreign Exchange Rate sourced in NetSuite ERP.

Confidentiality & Non-Disclosure

3.1       Both Parties acknowledge that confidential information is confided to them within the scope of work and that it may also possibly gain knowledge of Confidential Information in some other way.

3.2       “Confidential Information” shall include all information whether commercial, financial, technical or otherwise of the Disclosing Party and its Affiliates (defined below) in whatever form, including without limitation trade secrets, systems, procedures, confidential re-ports, cost information, pricing information, commission schedules, sales and/or trading strategies, marketing plans, computer software and tapes, programs, source codes, know-how, product plans, financial information relating to the nature and manner of products and services sold, used or serviced, and arrangements with customers and sup-pliers of the Disclosing Party or its Affiliates, together with all analyses, compilations, data, studies or other documents prepared by the Receiving Party or its permitted Affiliates which are derived from or in connection with such information or which contain or are based in whole or in part upon such information.

3.3       “Affiliate” in this Agreement means any entity that controls, is controlled by or is ultimate-ly under common control with a party. Control shall mean ownership of at least fifty per-cent (50%).

3.4       In consideration of the disclosure to the Receiving Party of the Confidential Information, the Receiving Party undertakes to the Disclosing Party:

3.4.1     to keep confidential the Confidential Information; and

3.4.2     not to disclose the Confidential Information in whole or in part to any Third Party without the Disclosing Party’s written consent, except to the Receiving Party’s or the Receiving Party’s Affiliates’ employees, agents and approved sub-contractors in-volved in the discussion or evaluation of the Transaction on a strictly confiden-tial and need-to-know basis.

3.5       The confidentiality obligations under this Agreement will not apply if the Receiving Party is required by any court, government or other regulatory body to disclose the Confidential Information, but only to the extent required by law, provided that the Receiving Party gives the Disclosing Party written notice as soon as practicable of such requirement, to the extent legally permissible, so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agree-ment.  If such protective order or other remedy is not obtained, then the Receiving Party will furnish only that portion of the Confidential Information which the Receiving Party is advised by reasonable opinion of counsel is legally required and will exercise all reasona-ble efforts to assist the Disclosing Party in obtaining a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information that is disclosed.

3.6       The confidentiality obligations under this Agreement will not extend to Confidential In-formation which:

3.6.1     has ceased to be confidential without default of the Receiving Party’s part; or

3.6.2     was already in the Receiving Party’s possession prior to disclosure by the Disclos-ing Party with no confidentiality obligations; or

3.6.3     has been received from a Third Party who did not acquire it in confidence.

3.7       Neither party shall, without the prior written consent of the other party, disclose to any Third Party either the fact that discussions or negotiations are taking place concerning the Contractual Services, or any of the terms, conditions, or other facts with respect to the Contractual Services, including the status thereof and the subject matter of this Agree-ment. No request or proposal to amend, modify or waive any provision of this Agreement shall be made or solicited except in a non-public and confidential manner.

3.8       The disclosure of the Confidential Information by the Disclosing Party will not create an obligation on either party to enter into any further agreement between the parties or to proceed with any possible relationship or other transaction with any third party.

3.9       All Confidential Information is acknowledged by the Receiving Party to be the property of the Disclosing Party and the disclosure of the Confidential Information shall not be deemed to confer any rights to that Confidential Information on the Receiving Party.

3.10     The Receiving Party agrees that it shall protect the Confidential Information using not less than the same standard of care that the Receiving Party applies to its own confidential in-formation and that the Confidential Information shall be stored and handled in such a way as to prevent unauthorised disclosure.

3.11     The Receiving Party understands that neither the Disclosing Party nor any of its Affiliate makes any representation or warranty, express or implied, as to the accuracy or com-pleteness of the Confidential Information and the Disclosing Party and its Affiliates dis-claim any and all liability arising from the use of or reliance on the Confidential Infor-mation.

Rights to Intellectual Property

4.1       In this section, “Intellectual Property” includes letters patent, trademarks whether registered or unregistered, designs, utility models, copyrights (including design copyrights applications for any of the foregoing and the right to apply for them in any part of the world) discoveries, creations, inventions or improvements upon or additions to an invention, confidential information, knowhow and any research effort relating to any of the above mentioned, business names whether registrable or not moral rights and any similar rights in any country.

4.2       Intellectual Property produced or acquired prior to the period of the engagement remain the property of the respective Parties. Both Parties shall safeguard Intellectual Property shared during the engagement and not disclose it to third parties that may result in a direct or indirect competitive disadvantage to the other Party.

4.3       Both Parties foresee that Intellectual Property may be discovered or created in the course of the engagement. They acknowledge that any inventions produced or helped to produce in the course of the engagement may be used by either of the Parties to the extent that they do not result in a direct or indirect competitive disadvantage to the other Party to the Company regardless of whether they can be protected or not.

4.4       Furthermore, the Company may, in terms of applicable Service Level Agreements and/or Saas Agreements with a client, distribute, as its intellectual property, functionality in the form of NetSuite bundled configurations to be used throughout the customer base, with whom the Company has entered into an agreement as mentioned above, for use at no further cost. Such bundles shall remain the sole and exclusive property of the Company and may be retracted at the end of the contractual relationship, or upon any breach committed by the Customer.

4.5       Any intellectual property generated via the specific development of a specific custom product on behalf of a specific Customer by the Company, and where a specific Customer has afforded remuneration for such intellectual property, may be unlocked upon request. Although the Customer may have access to said intellectual property, said property shall remain the sole and exclusive property of the Company unless otherwise specifically agreed to.

4.6       Where customized intellectual property is built upon the Company’s functionality bundles, or upon any intellectual property of the Company (as stated above), and where the Customer chooses to terminate the contractual relationship with the Company, the Customer may purchase such functionality via a separate SaaS Agreement, thereby enabling customized scripts and/or bundles to continue functioning. Where the Customer does not wish to engage in a further SaaS agreement, the Customer will be provided with the custom scripts and be afforded access to the functionality bundles for a period of 3 months, after which the bundled configuration will be retracted and no further use and/or access will be provided to said Customer.

4.7       Any use and/or distribution of the aforementioned intellectual property by a Customer, in contravention of these Terms and Conditions; the initial Service Level Agreements; or any subsequent Saas Agreements, shall be deemed to be a breach of the Intellectual Property Clause of these Terms and Conditions and this Master Service Agreement.

4.8       In the event of any such breach by the Customer (“Defaulting Party”), which may cause, or threaten to cause, damages to the other party (“Non-defaulting Party”), the Non-defaulting Party shall notify the Defaulting Party in writing, requesting it to rectify and correct said breach. If the Defaulting Party does not take actions which rectify and correct such breach to the satisfaction of the Non-defaulting Party within seven (7) days upon the issuance of the written notice, the Non-defaulting Party may take action pursuant to this Agreement, or other measures in accordance with the law, in response.

4.9       The rights and obligations under these Clauses on Intellectual Property shall continue in force after termination of the engagement in respect of Intellectual Property made during the engagement and shall be binding upon the Customer’s representatives and assigns.

Breach and Termination

5.1       Should either party (“the Defaulting party) be in breach of any material terms of this agreement, the Non-Defaulting party shall notify the Defaulting party in writing of said breach and demand that the Defaulting party remedies said breach within a period of 7 working days of receipt of said notice.

5.2       Should the Defaulting party fail to remedy the breach as demanded, the Non-Defaulting party shall be entitled, without prejudicing any of its other remedies in law, to:

1) terminate the agreement;

2) claim proven damages; and/or

3) enforce the terms of the agreement.

5.3       Notwithstanding the aforesaid, either of the Parties may terminate the Agreement at any stage, for whatever reason, by giving the other 3 (three) calendar months’ Notice of its intention to do so.

5.4       The termination of the Agreement, for whatever reason, shall not affect the rights of either of the Parties:

5.4.1 that may have accrued before the termination of the Agreement; or

5.4.2 which specifically or by their nature survives the termination of the Agreement.

Limitations to Liability

6.1       Neither party excludes or limits its liability to the other for any of the following (and nothing in this Agreement shall be construed as excluding or limiting such liability):

1. a) for any matter which it would be illegal for that party to exclude and/or limit, or attempt to exclude and/or limit, its liability; or
2. b) for personal injury or death resulting from its negligence or that of its Suppliers, agents and/or sub-contractors; or
3. c) for breach of terms in this Agreement.

6.2       Subject to Clause 6.1, neither party shall be liable to the other (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) for:

1. a) any indirect or consequential loss; or
2. b) the following types of financial loss, even if that party had notice of the possibility of the other party incurring such losses: loss of profits; loss of earnings; loss of business or goodwill; or business interruption; or
3. c) the following types of anticipated or incidental losses, even if that party had notice of the possibility of the other party incurring such losses: loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; or reduction in the value of an asset.

Non-Solicitation

7.1       The Customer acknowledges and agrees that:

1. a) the Company has invested substantial time and expense in recruiting, hiring, training and retaining employees and contractors;
2. b) if the Customer hires an employee or contractor of the Company, as a result of the exposure of such person to the Customer in the course of activities under this Agreement, the Customer will receive significant additional value under this Agreement at the expense of the Company;
3. c) accordingly, at any time from the date of this Agreement until two (2) years after its termination, the Customer will not directly or indirectly without the prior written consent of the Company, solicit or hire any person who has been directly or indirectly involved in the provision or receipt of services under this Agreement; and
4. d) without prejudice to the Company’s other remedies under this Agreement, the Customer, who is in breach of this Clause, shall pay the Company a penalty in the amount of 150,000 CHF for each breach, which the Customer acknowledges to be reasonable compensation in the circumstances to account for the loss suffered by the Company.

7.2       For the purposes of this Clause, “to hire” shall mean to hire as an employee, supplier, and/or otherwise to engage or retain as an independent contractor or consultant and/or obtain any form of services from such supplier with or without compensation.

Validity

8.1       If any clause or term of this Agreement should be invalid, unenforceable, defective or illegal for any reason whatsoever, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability, defect or illegality goes to the root of this Agreement.

Domicilium and Notices

9.1       The Parties elect the addresses as set out on the first page of this agreement, as their respective domicilium citandi et executandi.

9.2       Either of the Parties may change its domicilium citandi et executandi to another address within the same country, by way of a notice to the other party to this Agreement, provided that such a notice is received by the addressee, at least 7 (seven) calendar days prior to such a change taking effect.

9.3       Any notice or communication required or permitted to be given in terms of this Agreement shall only be valid and effective if it is in writing.

9.4       Any notice addressed to either of the Parties and contained in a correctly addressed envelope and sent by registered post to it at its chosen address, or delivered by hand at its chosen address, to a responsible person on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and Swiss public holidays, shall be deemed to have been received, unless the contrary is proved, if sent by registered post, on the 14th (fourteenth) calendar day after posting and, in the case of hand delivery, on the day of delivery.

9.5       All notices sent by e-mail during business hours, will be presumed to have been received on the date of successful transmission of the e-mail.  Any e-mail sent after business hours or on a day which is not a business day will be presumed to have been received on the following business day.

9.6       Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.

Force Majeure

10.1     In the event of any act of God, strike, war, warlike operation, rebellion, riot, civil commotion, lockout, combination of workmen, interference of trade unions, suspension of labour, fire, accident, or (without regard to the foregoing enumeration) of any circumstances arising or action taken beyond or outside the reasonable control of the Parties hereto preventing them, or any of them, from the performance of any obligation hereunder (any such event hereinafter called “Force Majeure”) then the Party affected by such Force Majeure shall be relieved of its obligations hereunder, during the period that such Force Majeure continues, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage which the other Party may suffer due to, or resulting from, the Force Majeure, provided always that a written notice shall be promptly given of any such inability by the affected Party.

10.2     Any Party invoking Force Majeure shall upon termination of such Force Majeure give prompt written notice thereof to the other Party. Should a Force Majeure continue for a period of more than 90 (ninety) days, then either Party shall be entitled forthwith to cancel this Agreement.

Entire agreement and variations

11.1     This Agreement constitutes the whole agreement between the Parties and supersedes all prior verbal or written agreements, understandings, or representations by or between the Parties regarding the subject matter of this Agreement, and the Parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.

11.2     No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.

11.3     Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.

Assignment, cession and delegation

12.1     The Customer shall not be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of this Agreement, in whole or in part, to any other party or person without the prior written consent of the Company, which consent shall not unreasonably be withheld or delayed.

Relaxation

13.1     No indulgence, leniency or extension of a right, which either of the Parties may have in terms of this Agreement, and which either party (“the grantor”) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by the grantor of that right.

Waiver

14.1     No waiver on the part of either party to this Agreement of any rights arising from a breach of any provision of this Agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

Counterparts

15.1     This Agreement may be executed in any number of counterparts, which together shall constitute one agreement. Any party may enter into this Agreement by executing a counterpart and this Agreement shall not take effect until it has been executed by all parties.

Governing Law and Jurisdiction

16.1     This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed and enforced in accordance with the laws of Olten, Switzerland. The courts of Olten, Switzerland, shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement. The Parties irrevocably submit to the jurisdiction of such courts and waive any objection to proceedings in any such court on the ground of venue or on the ground that the proceedings have been brought in an inconvenient forum.