Terms & data processing

Version October 2023

I. General Agreements

1. Scope

1.1 The following terms and conditions (hereinafter “GTC”) of Creativ Software AG (hereinafter “CSA”) govern – unless otherwise agreed - all services provided by CSA. These are mainly:

• The preparation of offers
• The performance of preliminary analyses
• The implementation of CSA software solutions
• The licensing of CSA software solutions
• Participation in the operation and further development of CSA software solutions
• The performance of set-up and data processing tasks
• The provision of consulting services
• The provision of services in the field of IT and IT hosting via additional options

1.2 These terms and conditions form the basis of all contracts and service agreements between CSA and the customer (hereinafter also “contractual partner”). Upon placing an order or signing a CSA contract, these terms and conditions are deemed to have been accepted.

1.3 CSA reserves the right to amend these GTC at any time. CSA will notify the customer of any changes with reasonable advance notice; if no objection is raised within the specifically stated period, the new GTC are deemed to have been accepted. The new version of the GTC furthermore applies to all contracts concluded after its entry into force.

1.4 The customer’s general terms and conditions are expressly excluded.

1.5 Deviations from the GTC are only valid if they are set out in a written agreement or in an individual contract with the customer.

2. Offers/preliminary analyses/solution concepts

2.1 Participation in tenders (e.g. preparation of indicative quotations, participation in presentations) is generally free of charge. The invoicing of services remains reserved subject to agreement.

2.2 The preparation of customer-specific solution concepts (e.g. within the scope of preliminary analyses, clarifications of requests or projects), together with the necessary preliminary clarifications, is generally subject to a charge (cf. I/Section 10).

2.3 Offers from CSA (proposed prices, costs, procedures, deadlines and the resources thereby envisaged) are valid for 30 days.

3. Deliverables

3.1 Project objectives, project organisation, implementation procedures, deliverables, deadlines, costs and responsibilities are laid down in writing by mutual agreement for all CSA services.

3.2 CSA may change the technical approach for providing the agreed deliverables, provided that their performance is not significantly impaired or the approaches have not been agreed as binding.

3.3 Changes to tasks after conclusion of the contract are possible by mutual agreement within the framework of change requests. In the absence of an individual agreement with the contractual partner, the general rates apply (cf. I./Section 10).

3.4 CSA is entitled to have the services it owes performed by third parties. It is likewise entitled to make partial deliveries and render partial services.

3.5 In the event of a delay in delivery, the contractual partner shall grant CSA a reasonable period of time for subsequent performance of the agreed services, to the exclusion of claims for damages.

4. General duties of cooperation of the customer / duty to give notice of defects

4.1 The contractual partner is responsible for providing, in good time and as required, all information, materials, resources and IT systems within its area of responsibility, as well as other necessary prerequisites, and for communicating the specifications required for the performance of the contract. Further duties of cooperation of the customer in accordance with the offer and/or solution concept remain reserved.

4.2 The contractual partner shall declare acceptance or give notice of defects within 30 days of delivery of the deliverables – but no later than 10 days after commencement of productive operation (in the case of delivered software systems) – if no notice of defects is given within the stated period, acceptance is deemed to have been declared. Partial commissioning is deemed to be partial acceptance of the software parts concerned.

4.3 Delays and additional work resulting from the customer’s failure to properly fulfil its duties of cooperation shall be borne by the customer.

5. Rights to work results

5.1 The intellectual and property rights to the deliverables remain in principle with CSA. The contractual partner thereby recognises all of CSA’s property rights, in particular its copyright in programs, CSA software, software documentation, templates and other deliverables not created exclusively for the contractual partner.

5.2 Deliverables created for the contractual partner within the scope of projects or orders may – unless otherwise agreed – be passed on to third parties by CSA, provided that confidentiality towards the contractual partner is maintained. The contractual partner undertakes to affix CSA’s proprietary notices to all modifications and copies – including extracts.

5.3 In the case of third-party intellectual property rights, in particular software licences from third-party manufacturers, the customer recognises the terms of use and licence terms of these third parties; CSA will provide the customer with the relevant terms of use and licence terms upon request.

6. Entry into force / term and termination

6.1 The individual contract between the customer and CSA enters into force upon signature of the customer-specific offer (acceptance of the solution concept) and/or the placing of the project order. The contract between CSA and the customer may also be concluded by acceptance of the offer (so-called implied conduct), in that the customer accepts CSA’s services or uses CSA’s services. CSA assumes that the employees of the customer involved in each case are authorised to represent the customer alone and thus to conclude the contract.

6.2 After expiry of any minimum term, the contracts are deemed to have been concluded for an indefinite period. The contracts may thereafter be terminated subject to six months’ notice to the end of a calendar year.

6.3 Premature, extraordinary termination of the contract by CSA for good cause remains reserved; good cause for termination by CSA exists in particular in the following cases:

• Opening of bankruptcy proceedings against the customer, or the opening of bankruptcy proceedings against the customer was rejected for lack of assets
• Non-payment of the agreed fees
• Infringement by the customer of legal provisions, copyrights, industrial property rights or name rights of third parties
• Use by the customer of the customer’s data managed by CSA to promote unlawful activities

In the event of extraordinary termination, the entire outstanding contract value (total up to the end of the contract in the case of a minimum term or fixed-term contract, or up to the date of termination subject to the ordinary notice period) becomes due immediately; the customer’s obligation to pay for work already performed by CSA also remains in force.

7. Inflation / tariff changes

7.1 CSA is entitled to adjust all fees, for example for software licences, for the options data hosting and SLA contract, to current inflation subject to a notice period of three months (basis: CPI September 2023; initial value: month of contract commencement; adjustment value: month preceding notification of an inflation adjustment) and/or to increase them at its own discretion.

7.2 Upon receipt of a tariff change that goes beyond the adjustment for inflation, the customer has an extraordinary right of termination with a notice period of 30 days to the date of the planned tariff change. If the customer does not terminate, the new tariff applies from the date notified by CSA. There is no special right of termination for the customer for services not affected by a tariff change. A decrease in inflation does not entitle the customer to a reduction of the original tariffs.

8. Assurances and warranties

8.1 The customer is aware that, in view of the wide range of possible applications and its complexity, software may not be delivered or installed free of errors. According to the current state of the art, complete freedom from errors in software cannot generally be guaranteed. CSA is responsible to the customer for the careful and contractual provision of the agreed services. CSA has a warranty obligation only if deviations from published or contractually agreed specifications are identified, whereby these deviations (e.g. in the case of software functions on the customer’s hardware specified to CSA within the scope of the project order) must be reproducible and lead to a significant impairment of functionality.

8.2 CSA cannot warrant that hardware/CSA software can be used permanently, without interruption and free of errors in all combinations desired by the customer, nor that the correction of a program error excludes the occurrence of other program errors.

8.3 CSA’s warranty obligation lapses in general in the event of any kind of intervention by the contractual partner in the source code, in application scripts, in data tables and their contents, as well as in the event of unauthorised changes to the set-up and parameterisation of the application. For the avoidance of doubt: for warranty reasons, the customer is not granted direct access in the sense of write permissions or similar to the SQL database. Any access that goes beyond so-called read permissions leads to the expiry of any warranty obligations of CSA.

8.4 For third-party products (all hardware, as well as third-party software supplied by CSA separately or integrated into its own services or products), the warranty is governed exclusively by the provisions granted by the respective manufacturers/suppliers or licensors. This applies to the scope of services, the warranty period, the conditions for asserting the warranty and all other rights of the customer. Vis-à-vis CSA, the warranty rights for third-party products consist exclusively in CSA asserting them against the manufacturer, supplier or licensor on behalf of the customer. If the manufacturer, supplier or licensing partner does not voluntarily fulfil its warranty obligation, CSA assigns the warranty rights to the customer for legal enforcement.

8.5 In the event of a warranty claim, CSA is entitled to (repeated) rectification. If a defect cannot be remedied, the contractual partner is entitled to a price reduction in proportion to the reduced value compared with the agreed deliverable.

9. Liability and limitations of liability

9.1 CSA is liable only in cases of intent or gross negligence. Otherwise, liability is excluded to the extent permitted by law.

Any further liability of CSA is excluded, in particular liability:

• For indirect damage
• For consequential damage arising from work performed by CSA or from its products
• For loss of profit
• In the event of a delay in delivery due to circumstances beyond CSA’s control, such as: reasons attributable to the contractual partner, natural events, illnesses and accidents of key employees, labour disputes, late or defective supplies from third parties, official measures
• Damage of any kind attributable to fault on the part of the contractual partner, such as
  • incorrect operation of the software
  • modification of delivered software functions
  • missing/incomplete provision of agreed means and resources of the contractual partner
  • provision of incorrect or incomplete information and documents by the customer
• For the conduct of auxiliary persons engaged by CSA
• For interruptions or damage caused by computer viruses, disruption and/or interruption of the internet connection or by denial-of-service attacks

9.2 Insofar as CSA is liable, its liability is in all cases limited in amount to the proven damage, but at most to the contract value in the calendar year concerned.

10. Rates for services and expenses

10.1 Unless otherwise agreed, services are invoiced on a time-and-materials basis in hours; the scope of work offered constitutes a cost estimate. The currently valid rates for work during normal business hours are set out in the annex to the offer or the solution concept.

In the absence of an individual agreement, these amount to:

10.2 Supposed emergency tickets (“false alarm”): In addition to the services rendered, CSA is entitled to charge an additional flat fee of CHF 100.00 if it turns out that a fault classified by the customer as an “emergency” (“emergency ticket”) falls into a lower fault class (cf. III/2.1), or that a fault to be classified as an “emergency” does exist but is not attributable to a malfunction of the CSA software.

10.3 For services that must necessarily be performed outside business hours, a surcharge of 50% is levied on the above rates. Business hours are services on working days from 07.00 to 18.00 from Monday to Friday. Standby services and services to be performed outside business hours must be booked with CSA at least two weeks before they are required. The public holidays of the Canton of St. Gallen apply.

10.4 Prices for CSA’s services and deliveries are net ex works in CHF, excluding VAT, duties, freight, packaging, insurance, permits, notarisations and employees’ travel expenses.

10.5 If a service has exceptionally been agreed at fixed prices, CSA may charge additional costs in the following cases:

• The contractual partner fails to fulfil its obligations, resulting in additional work for CSA
• Other additional expenses not caused by CSA

11. Terms of payment

11.1 Subject to special agreements, the following terms of payment apply:

Invoicing of general orders:

• monthly invoicing with 30 days’ payment term

Project invoices:

• 30% upon conclusion of the contract
• 40% upon installation
• 30% after acceptance,

each with 30 days’ payment term

11.2 After expiry of the payment term, CSA may charge default interest (8%).

11.3 Invoice deductions that have not been agreed – in particular set-off against claims against CSA not recognised by CSA – are not permitted.

11.4 Until invoices have been paid in full, all deliverables remain the property of CSA, or CSA may revoke the customer’s use of them if the customer is in default of payment.

12. Confidentiality

12.1 The parties undertake to maintain the strictest secrecy regarding all confidential matters of the other party that come to their knowledge within the scope of the contractual relationship, in particular business or trade secrets, and neither to pass them on nor to exploit them in any other way.

12.2 The duty of confidentiality does not apply insofar as the information

• was already known to the recipient before disclosure by the informant;
• is generally known or becomes known through no fault of the recipient;
• was acquired in good faith from third parties without an obligation of confidentiality;
• was developed by the recipient itself without disclosure by the informant;
• was released for disclosure by written authorisation of the informant;
• was transmitted to third parties by the informant without a corresponding obligation of confidentiality.

12.3 In cases of doubt, the parties are obliged to obtain the consent of the other party to any possible disclosure of information.

12.4 CSA is entitled to make public the contractual partner as a customer of CSA as well as the nature of the cooperation and to use this in an appropriate manner for marketing and sales purposes.

13. Data protection

13.1 The separate data protection provisions, as amended from time to time, apply. The customer may at any time order a copy of the data protection provisions from CSA or view the current version on the CSA website www.creativ.ch.

14. Written form/amendment of contract/no assignment/place of jurisdiction/choice of law

14.1 All matters relevant to the contract and/or amendments to the contract must be communicated in writing. E-mail is recognised as written form. The customer is obliged to notify any change to its address, internal contact person or correspondence e-mail address. Neither CSA nor any third-party companies engaged by CSA are liable for incorrect delivery.

14.2 In the event that individual clauses of these GTC or other contractual components are wholly or partially invalid, or in the event of gaps in the provisions, any invalid provisions shall be reinterpreted, supplemented or replaced in such a way that the economic purpose pursued by the invalid provision is achieved.

14.3 Rights and obligations arising from the contractual relationship may not be assigned, transferred or pledged by the customer to third parties without the prior written consent of CSA.

14.4 Swiss law applies. The provisions of private international law (PILA) and of the uniform UN sales law (CISG) are excluded.

14.5 For all disputes arising in connection with the provision of services by CSA to the contractual partner, the court at CSA’s registered office (Altstätten SG) is agreed as the competent court. CSA may bring proceedings before the competent court at the customer’s registered office; mandatory places of jurisdiction remain reserved.

II. Provisions on CSA software licences

1. General licence provisions

1.1 The following CSA software licences are available to the customer:

• Acquisition of a perpetual licence with local installation at the customer’s premises (so-called licence purchase)
• Acquisition of a fixed-term licence with local installation at the customer’s premises (so-called licence rental)
• Acquisition of a fixed-term licence provided via the internet (so-called licence rental as SaaS)

1.2 By acquiring a CSA software licence - or upon full payment of the agreed fees - the customer acquires the following rights:

• The non-exclusive, non-transferable and partly time-limited right to use the licensed programs for the contractual partner or the users registered for it and their access and functional areas on the agreed systems
• Entitlement to training in the software functions (subject to a charge)
• Entitlement to documentation of the software functions (subject to a charge)

1.3 The transfer of CSA software licences to legal successors of the customer, for example in the context of mergers, demergers, transfers of business etc., is subject to the written consent of CSA. CSA may refuse consent to the transfer for justified reasons. If the contractual partner continues to exist after the legal transaction concerned (such as mergers, demergers, transfers of business etc.), the customer must furthermore confirm in writing that it has ceased use, deleted its own installations and not retained any copies. The legal successor may only begin using the CSA software after registration with CSA and acceptance of the contractual provisions (incl. GTC).

1.4 Sub-licensing of software by the customer to third parties, whether for payment or free of charge, is prohibited without the explicit written consent of CSA. Written consent is also required for permanent or temporary modification of the software and for reverse engineering of the machine-readable program into the source language.

1.5 The customer is obliged to take all necessary measures to protect programs and documentation against unwanted access or misuse by unauthorised persons. In particular, before passing on storage media, it shall delete all parts of the program or documentation stored on them.

1.6 CSA has the right to discontinue the operation or maintenance of software versions subject to a notice period of six months. With the discontinuation of a software version, the associated services are also discontinued.

2. Supplementary provisions for licence purchase

2.1 In the case of a licence purchase, the right to use the acquired software is unlimited in time.

2.2 The contractual partner may install the licensed software on the agreed system and, where necessary, also make backup copies. Installation on other systems and devices may only be carried out with the consent of CSA.

2.3 In the absence of an additional agreement, the contractual partner alone is responsible for the procurement and operation of the software and hardware. For the avoidance of doubt: the delivery of software updates or maintenance services is not included. The customer is free to conclude an Up-Date and SLA contract for this purpose (cf. III).

3. Supplementary provisions on the licence rental models (installation at the customer’s premises or rental in the SaaS model)

3.1 In the case of licensing of the CSA software in the rental models (installation at the customer’s premises or rental in the SaaS model), the time-limited right of use exists for the agreed contract term.

3.2 The commencement of productive operation is deemed to be the start of the licensing of the CSA software in the rental models (installation at the customer’s premises or rental in the SaaS model). Unless otherwise provided in the offer or project contract, CSA is entitled to charge usage fees for the CSA software in the amount of the contractual licence fees for the period between installation of the CSA software and during any test phase until the commencement of productive operation. Any other installation (even if only temporary) on other systems and devices, or the saving of software on data carriers of any kind, is not permitted.

3.3 The following minimum terms apply to the licensing of the CSA software in the rental model:

• A minimum term of 4 years applies to licence rental with installation of the CSA software at the customer’s premises.
• A minimum term of 3 years applies to licence rental in the SaaS model.

3.4 The right to use CSA software in the rental model (installation at the customer’s premises or rental in the SaaS model) expires immediately upon termination of the contract.

3.5 The services for Up-Date and Up-Date installation (cf. III.) are included in the fees for licensing the CSA software under licence rental in the SaaS model, while the rental model (installation at the customer’s premises) entitles the customer to receive Up-Date services, without Up-Date installation.

3.6 Licence rental in the SaaS model: access to the registered functions of the CSA software under licence rental in the SaaS model is provided to the contractual partner via the internet. The contractual partner may make access to the functions available only to the registered users. Licence rental in the SaaS model is linked to data hosting operated by CSA (software and data of the contractual partner) (cf. IV).

III. Provisions on the update contract

1. Fees / services

1.1 The services of the update contract are included in the fees for licensing the CSA software in the rental models. Otherwise, the fee for services of the update contract is payable annually in advance.

1.2 Where an update contract exists, CSA provides the following services for the licensed functions and registered users of the CSA software:

• Operation of a software-supported ticket system with handling history
• Operation of a support hotline during business hours (08:30 to 11:30 and 14:00 to 16:30)
• Internal alerting of tickets classified as “emergency”
• Delivery of service packs, upgrades and releases (installation included only for licence rental in the SaaS model)
• Provision of (corrective) updates (without installation)
• Share in functional, general software enhancements
• Ensuring adjustments and data processing tasks within the scope of the installed software version
• Support in the use of the software functions (subject to a charge)
• Preparation of release documentation with installation instructions

1.3 The installation of updates, upgrades etc. is in principle the responsibility of the contractual partner. CSA’s assistance with installation is subject to a charge. In the absence of an individual agreement with the contractual partner, the general rates apply (cf. I./Section 10).

1.4 CSA provides the requested services on a “best effort basis”.

2. Response times and faults

2.1 For reported faults, graduated response times are offered depending on the classification, whereby the classification of the reported fault is at the sole discretion of CSA:

The response times apply to faults within CSA’s general business hours from Monday to Friday from 08:30 to 11:30 and from 14:00 to 16:30 (excluding public holidays applicable at CSA’s registered office). Faults must in principle be reported via the helpdesk (ticket system) so that the response times can be guaranteed.

On working days immediately preceding a religious holiday, CSA’s business hours end at 16:00; these are in particular:

• Thursday before Good Friday (Maundy Thursday)
• Wednesday before Ascension Day
• Day before All Saints’ Day
• Day before Christmas Day (Christmas Eve)

2.2 Use of CSA’s services listed above, for example in connection with the adjustment of software set-ups, data processing tasks and application support or installations of updates, is in principle invoiced on a time-and-materials basis. In the absence of an individual agreement with the contractual partner, the general rates apply (cf. I./Section 10).

2.3 There is no entitlement to implementation. This also applies to the rectification of faults and defects. CSA provides the requested services on a “best effort basis”. For the avoidance of doubt: the rectification of faults and defects or the provision of a so-called workaround does not take place within the response time. Rather, CSA informs the customer of the time likely to be required for this, including an estimate of the effort. In the absence of an individual agreement with the contractual partner, the general rates apply (cf. I./Section 10).

2.4 With the SLA contract option, CSA offers individual additional services and extensions of business hours as well as the agreement of contingent hours (also “pool hours”) (cf. V.).

IV. Provisions on data hosting

1. Scope of services / operation and contact person

1.1 Within the scope of licensing the CSA software “rental in the SaaS model”, the licensed software functions including data hosting/data management are operated in an external IT environment (hereinafter “data hosting”).

1.2 Data hosting comprises the following services:

• The customer has at its disposal an appropriate server environment with sufficient storage space for storing and managing its data (data centre location: Switzerland).
• The licensed software functions are available to the customer via the internet during business hours. Plannable maintenance work on the systems is announced to the customer in advance and, where possible, coordinated with the customer.
• Data access and the basic functions of the software licensed by the customer are monitored (“monitoring”).
• The systems and data managed by the customer in the IT environment are protected against improper data access, external interference (viruses etc.) and loss in accordance with the current standard procedures.
• The restoration of software functions and/or customer data is subject to a charge (cf. I./Section 10). CSA provides such services on a “best effort” basis.

The expansion of the IT resources used and the associated additional costs remain reserved. Should this occur, CSA will inform the contractual partner in good time and ensure the additional resources.

1.3 CSA is free to engage subcontractors for data hosting. If a subcontractor is engaged, CSA remains available to the customer as contact person.

2. Supplementary provisions on data protection and data export

2.1 The parties agree that any personal data of the customer or data of its contractual partners (together “customer data”) transmitted to CSA or its subcontractors in the course of the customer’s use of the data hosting will be collected, processed and used by CSA or its subcontractors exclusively as data processors. In relation to CSA, the customer remains the sole controller within the meaning of data protection law and is responsible for the lawfulness of the collection, processing and use of the customer data in accordance with the statutory provisions. The customer must therefore ensure that it is entitled to engage CSA and to transmit the customer data to CSA in this connection.

2.2 The parties further agree that CSA is entitled to use the data provided to it within the scope of the commissioned data processing for its own internal purposes, in particular for statistical evaluations and for the purpose of quality assurance and further development of the solutions provided, insofar as this customarily serves the performance of the contract. The customer will take any measures and steps required for this purpose, including providing appropriate information to and obtaining the consent of its contractual partners.

2.3 CSA supports the customer with regard to the obligations incumbent on it under the applicable data protection law, for example Art. 32 to 36 GDPR or corresponding provisions of Swiss data protection law. CSA informs the customer without delay of a data protection breach within CSA’s area of responsibility.

2.4 The customer acknowledges that CSA or its subcontractors are entitled and obliged to delete the customer data in principle 30 days after termination of the data hosting. The customer is aware that it is responsible for the backup and migration of the customer data as of the termination date of the data hosting. At the customer’s choice, the customer data is handed over either by delivery of data carriers or by transmission via a data network, whereby CSA is free to choose the format. CSA is entitled to invoice the customer for the costs and expenses incurred in the data export. In the absence of an individual agreement with the contractual partner, the general rates apply (cf. I./Section 10). The customer has no entitlement to receive software suitable for using the customer data.

V. Provisions on the SLA contract option

1. Contracts required for the SLA contract option

1.1 The SLA contract option (service level agreement for services) builds on the services of the contract for licensing the CSA software (licence purchase of the CSA software or rental models of the CSA software) and on the services of the update contract. For the avoidance of doubt: the existence of a valid update contract is therefore mandatory for concluding the SLA contract option.

2. Services and prices of the SLA contract option

2.1 The services to be provided by CSA to the customer within the scope of the SLA contract option, as well as any extension of business hours or shortening of response times (cf. III/Section 2), are governed by contract. Irrespective of this, the operating hours of the telephone support hotline correspond to the original business hours, i.e. from Monday to Friday from 08:30 to 11:30 and from 14:00 to 16:30 (excluding public holidays applicable at CSA’s registered office and days before religious holidays). Faults must in principle be reported via the helpdesk (ticket system) so that the response times can be guaranteed.

2.2 The costs and tariffs for the SLA contract option are based on the individual agreement with the customer; insofar as no provision is made, the rates according to I/Section 10 apply.

2.3 Training, system configuration or programming of extensions fall neither under the services of the update contract nor under the response time (cf. III). For reasons of planning certainty and to secure capacity for the benefit of the customer, such work should be planned well in advance and agreed jointly between the customer and CSA (“project orders”). Within the scope of the SLA contract option, the customer furthermore has the option of reserving contingent hours (also “pool hours”) on a monthly basis during a calendar year for support and minor work that is not agreed via project orders. Pool hours are provided with priority. CSA is entitled to invoice the customer for the pool hours in advance. Contingent hours not used by the customer can neither be accumulated nor carried over to a subsequent period, nor does the customer have any claim against CSA for reimbursement of the payments made for them.

3. Duties of cooperation of the customer

3.1 When providing services within the scope of the SLA contract option, CSA assumes that, in addition to the general duties of cooperation, the customer will also fulfil the following duties of cooperation:

• The customer designates persons responsible for the operation, further development and technology of the licensed applications and their surrounding systems, who coordinate internal matters at the customer as a “single point of contact” and act as the customer’s project managers vis-à-vis CSA.
• The CSA helpdesk system is used for all matters relevant to operations.
• Requests and projects in the context of further developments are handled via standardised requests and test procedures that are coordinated with CSA.
• The customer grants CSA individual, dedicated access to its IT environment and the system components relevant to operations in accordance with CSA’s requirements.

Creativ Software AG, version (October 2023)