Legal

Responsible for the content of the website

Divergent GmbH
Chamerstrasse 172
6300 Zug, Switzerland

Phone: +41-44-5868801
Email: inquiry@divergent.ch

Disclaimer

All texts and links have been carefully checked and are regularly updated. We strive to provide accurate and complete information on this website but make no guarantee that the information provided on this website is accurate, complete or up to date, nor do we take responsibility for it. We reserve the right to modify the information on this website at any time and without notice. We make no commitment to update the information provided. All links to external providers were checked for accuracy at the time of their inclusion. However, we are not liable for the content and availability of the websites accessible via hyperlinks. Solely the provider of the linked website is liable for illegal, incorrect or incomplete content and particularly for any damage caused by the content of the linked website. It makes no difference whether the damage is of a direct, indirect or financial nature, or it resulted from data loss, system outage or there is any other reason for the damage.

We cannot guarantee the security of data transmission on the internet. There is a particular risk of third parties accessing the data when transmitting them by e-mail. Third parties are hereby strictly prohibited from using the contact data disclosed in this legal notice for advertising purposes. The operator explicitly reserves the right to take legal action in case of unsolicited advertising or information materials being sent. If individual regulations or formulations of this disclaimer are or become invalid, it will not affect the content or validity of the remaining regulations.

Data protection

Our Privacy Guidelines

Personal information (mostly referred to as "information" in the following) will only be processed by us as far as required and for the purpose of providing a functional, user-friendly online presence, including its content and the services offered.

According to Art. 4 No. 1 of the regulation (EU) 2016/679–commonly known as the General Data Protection Regulation (referred to as "GDPR" in the following)–"processing" refers to any operation or set of operations performed on personal information–whether or not by automated means–such as its collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or other form of provision, alignment or combination, restriction, erasure, or destruction.

In the following privacy policy, we will inform you of the type, scope, purpose, duration, and legal basis of the processing of personal information in any context where we–alone or in conjunction with others–make decisions about the purposes and means of information processing. Also, we will inform you in the following of the third-party components we use for optimization purposes and improving the user experience wherever third parties are responsible for processing information.

This is how our privacy policy is structured:

I. Rights of users and people affected
II. Information on information processing
III. Information on us as the responsible party

We reserve the right to modify the privacy policy to adjust it to changing legislation as well as changes to the service or the way information is processed. However, this is restricted to any declarations about the processing of information. Wherever user consent is required or parts of the privacy policy contain provisions regarding contractual relationships with users, changes are subject to user consent.

We ask users to familiarize themselves with the privacy policy's contents on a regular basis.

I. Rights of users and people affected

Regarding information processing–as subsequently described in greater detail–users and people affected are entitled

to obtain confirmation whether or not personal information pertaining to them is being processed, to be advised of the information being processed, to obtain other information pertaining to information processing, and to obtain a copy of the information (cf. Art. 15 GDPR);
to have incorrect or incomplete information corrected or completed (cf. Art. 16 GDPR);
to have information pertaining to them deleted immediately (cf. Art. 17 GDPR) or, alternatively–as far as further processing is required according to Art. 17 No. 3 GDPR–to have processing restricted as per Art. 18 GDPR;
to obtain the information pertaining to them as provided by them and to have it transmitted to other providers / parties responsible (cf. Art. 20 GDPR);
to file a complaint with the supervisory authority whenever they find that information pertaining to them is being processed by the provider in violation of privacy regulations (cf. Art. 77 GDPR).

Additionally, the provider is obligated to notify any parties to which information has been disclosed by the provider of any correction or deletion of information or any restriction of processing in accordance with Art. 16, Art. 17 No. 1, and Art.18 GDPR. However, this obligation does not apply as far as notification is impossible or would involve disproportionate effort. Regardless, the user is entitled to be advised of the identity of such recipients.

Also, users and people affected according to Art. 21 GDPR are entitled to object to the processing of any information pertaining to them going forward as far as the information is being processed by the provider as per Art. 6 No. 1f) GDPR. This applies particularly to objections to information processing for the purpose of direct advertising.

II. Information on information processing

The information processed in the context of your use of our online presence will be deleted or blocked as soon as the purpose for storing it ceases to apply, its deletion does not violate any legal retention requirements, and none of the following provisions pertaining to particular processing methods apply.

Server data

For technical reasons, particular for the purpose of providing a secure and uninterrupted online presence, your web browser will transmit data to us or our web host. Among other purposes, these so-called server log files are used to collect information about the type and version of your web browser, your operating system, the website from which you are visiting our online presence (referrer URL), the particular page or pages you are visiting, the date and time of your visit, and the IP address of the internet connection used to access our online presence.

The data gathered in this way will be stored temporarily, but not in conjunction with any other information about you.

The legal basis for the storage of this data is Art. 6 No. 1f) GDPR. Our legitimate interest is the improvement, stability, functionality, and security of our online presence.

The data will be deleted after seven days at the latest as far as no further retention is required in the interest of providing evidence. Otherwise, the data will be fully or partially exempt from the deletion requirement until such time as the incident in question has been fully resolved.

III. Information on us as the responsible party

Responsible party

Divergent GmbH
Chamerstrasse 172
6300 Zug, Switzerland

CHE-315.534.157

Phone: +41-44-5868801
Email: inquiry@divergent.ch

Data protection officer

Name: Dustin Smuz
Email: dustin.smuz@divergent.ch

General Terms and Conditions

General Terms and Conditions for Software Services of Divergent GmbH – Version 11.2023 (hereinafter: "GTCs")

1. Scope of Application

The subject of these GTCs is the use of software provided by Divergent GmbH (hereinafter referred to as Divergent). For the duration of this contract, Divergent shall make the software products available to the Customer for use in the respective current version via the Internet or on the Customer's servers subject to a fee.

The contractual relationship between Divergent and the Customer shall come into effect upon the Customer's first use of a Divergent software product. By using the software, the Customer expressly accepts these GTCs. In the event of contradictions between any individual contract and these GTCs, the individual contract shall prevail.

Any of the Customer's general terms and conditions of business or general terms and conditions of purchase are hereby expressly excluded unless they are expressly accepted in writing by Divergent.

2. Divergent's Responsibilities and Deliverables

Divergent shall be responsible for the provision of the agreed contractual services and the separately agreed service level or the service level pursuant to Clause 5. These include the reliable and secure operation of the technical infrastructure, installation and maintenance of the software, operation of a backup system, as well as the measures required to maintain operational capability. Divergent shall provide the Customer with the ordered software products for the intended use and shall grant the Customer the non-exclusive and non-transferable right to use them for the duration of the contract.

3. Responsibilities of the Customer

The customer bears co-responsibility for the operation, safety, and condition of his website and all other electronic/digital media on which Divergent Software is used (hardware, software, operation, security, etc.). This includes appropriate precautions for the protection of systems, data, and applications that exist in the technical environment of the customer and are intended to secure the use of software products provided by Divergent. The customer agrees to comply with applicable laws and regulations relating to data protection and data security and bears all costs associated with the perception of his responsibilities. Divergent and the customer agree to cooperate in good faith to address potential security risks or privacy issues that may arise from the use of the software products.

4. System availability

Divergent places the utmost value on the quality standards of its software services and takes appropriate measures to enable as uninterrupted use of the software products as possible. However, Divergent cannot guarantee that the software services will always be available without any failure, especially due to the technical complexity and dependence on third parties for certain services.

Planned maintenance work, system improvements, or software updates that may require a temporary interruption of availability are generally announced at least 2 working days in advance. In rare cases where immediate work is required to ensure system security or to quickly resolve issues, Divergent reserves the right to perform these without prior notice.

Divergent is committed to minimizing any inconvenience due to system interruptions and keeping system availability as high as possible.

5. Support

Divergent Support is available to the Customer from Monday to Friday from 09:00 to 17:00 (CET/CEST) via e-mail at support@divergent.ch. For support outside these hours, individual contract supplements (Service Level Agreements) can be concluded.

6. Remuneration

The amount of remuneration for the agreed services is regulated separately in the respective price lists. As a rule, it consists of one-time and recurring fees. Recurring fees are generally invoiced periodically in advance, while one-time fees are invoiced after the service has been provided. Recurring fees are subject to change upon prior notice. They are due within 14 days. Additionally agreed services will be invoiced separately.

7. Property rights

The Customer acknowledges the property rights, in particular Divergent's copyright to programs and documentation. The Customer is not entitled to make this software available to third parties for use, either for a fee or free of charge, or to sublet and/or use it outside the scope of the contractual relationship with Divergent or to challenge Divergent in any way.

8. Confidentiality

The parties mutually undertake to keep secret all confidential information of the other party. Divergent shall be entitled to involve assistants and subcontractors, but shall be bound by the confidentiality obligation. Divergent undertakes to treat all transmitted data as confidential in relation to third parties and to comply with the applicable data protection regulations. In this regard, the service providers designated by the Customer shall not be considered third parties.

9. Data protection and data security

Divergent shall treat the Customer's data with the utmost care and protect it from misuse and loss. To this end, Divergent shall take technical and organizational measures that at least comply with the applicable requirements of the GDPR. The data is stored in Europe, usually in Switzerland or Germany. Special agreements on server locations can be made within the scope of technical possibilities.

9.1. The Customer is responsible for the lawfulness of the data transfer or its use. All Customer data stored and processed by Divergent is the exclusive property of the Customer and will be used by Divergent exclusively for the purpose of fulfilling the contract.

10. Warranty

Divergent is unable to provide any assurances or guarantees that the data is up-to-date, complete and correct, that the software functions correctly, or that the software, its functionalities, integrated hyperlinks and other content are available at all times or without interruption. In particular, it is neither assured nor guaranteed that the use of the software will not infringe the rights of third parties.

11. Liability

Divergent shall be liable for property damage and personal injury caused intentionally or through gross negligence within the scope of this contract as well as for damages arising from product liability. Any further liability for direct or indirect, immediate or secondary damages, for consequential damages, loss of profit, claims of third parties as well as for consequential damages from loss of production, data loss or damage and liability for slight negligence is completely ruled out, regardless of the legal grounds, to the extent permitted by law.

Divergent shall not be liable for the non-performance or delayed performance of its obligations if this is due to force majeure, including strikes.

The Customer itself is responsible for ensuring that it does not violate any relevant legal provisions, such as the Unfair Competition Act (UWG), the Trademark Act (MarkenG), all applicable data protection provisions including the General Data Protection Regulation (GDPR), the current Federal Data Protection Act (DSG) or other relevant provisions, or that it does not violate the rights of third parties by using Divergent's services, as well as applications and data provided. Divergent does not assume any auditing obligations, in particular it is not obliged to check the use of the services for possible infringements of the rights of third parties.

12. Contract duration and termination

The contract shall generally be concluded for an indefinite period and shall enter into force on the date agreed in the contract. Contracts may be concluded for a limited period of time. Unless there is an express time limit in the purchase order, the contract may be terminated in writing in accordance with the terms and conditions of the respective software product.

The parties are free to terminate the contract immediately for good cause. Divergent shall be deemed to have good cause for the immediate termination of this contract in particular if the Customer:

1) goes bankrupt or the opening of bankruptcy proceedings has been rejected for lack of assets

2) is in default with payment obligations arising from this contractual relationship and has been reminded unsuccessfully by setting a grace period and threatening to terminate the contract

3) culpably violates legal regulations or interferes with copyrights, industrial property rights or naming rights of third parties when using the contractual services

4) when using the distributed services for the purpose of promoting criminal, unlawful and ethically questionable activities

13. Changes to the contract

If an extension (qualitative or quantitative) of the contractually regulated services is requested within the scope of the currently available software products, Divergent shall implement such extension within a period to be agreed upon and shall remunerate the Customer according to the adjusted conditions as of the time of activation. All adjustments must be made by the Customer in writing and it is the Customer's responsibility to ensure that the transfer is successful.

If adjustments are requested within the scope of the currently available software products that result in a reduction (qualitative or quantitative) of the contractually regulated services, they shall become valid at the end of the following month and can only be obtained after the expiry of any agreed minimum term.

14. Communication

Divergent shall be entitled to mention the Customer as a reference and to use general information about the agreed contract in an appropriate manner for marketing and sales purposes.

15. Notifications

Unless a stricter form is stipulated in this contract or by law, all notifications must be sent in writing to the agreed e-mail addresses. Sending them via e-mail shall suffice. The contracting parties shall be obliged to notify the other contracting party without delay of any changes to the contact person or the address; otherwise notifications sent to the address last given in writing shall be deemed to have been received with legal effect.

16. Final provisions

16.1 Amendments and supplements to the contract must be made in writing in order to be valid.

16.2 The contract or individual rights derived from it may only be assigned to third parties with the prior written consent of the other party.

16.3 Should any provision of this contract be invalid or unenforceable, the validity of the remaining provisions of this contract shall remain unaffected. The parties shall replace the invalid or unenforceable provision with a provision that corresponds to its economic intent.

16.4 All provisions of the contract which, by their nature, extend beyond its termination shall remain in force until they have been fulfilled, including confidentiality, governing law, remuneration, intellectual property, liability and warranty.

16.5 In the event of disagreement, the parties shall seek an amicable settlement, ultimately at senior management level, before bringing it before the court. Should such a settlement not be possible from the point of view of one of the parties, the matter may be brought before the court.

16.6 The contract shall be governed by Swiss law to the exclusion of the United Nations Convention on the International Sale of Goods. The place of jurisdiction shall be at the registered office of Divergent GmbH.

Zug, November 2023 (replaces all previous versions)