General Terms and Conditions
General Terms and Conditions for Software Services of Divergent GmbH – Version 06.2021 (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
Apart from the Divergent software products, the Customer shall remain fully responsible for the operation, security and condition of its website and all other electronic/digital media on which Divergent Software is used (hardware, software, operation, security, etc.). The Customer shall bear all costs incurred in connection with the performance of its responsibilities.
4. System availability
Divergent software services shall be provided in accordance with "best effort" principles. Divergent shall take reasonable measures to ensure that the use of the software products is as uninterrupted as possible. However, the Customer is aware that the software services and other components from third-party partners whose functionality cannot be influenced by Divergent are a technically complex system, which is why Divergent cannot guarantee the constant and complete availability of these components. Interruptions due to system maintenance, updates, etc., shall be announced in advance in accordance with Clause 15, whereby a period of 2 working days shall be observed for work that can be scheduled. Work that is immediately necessary and causes an interruption in availability can be carried out without prior notice in order to quickly resolve the problem or avert potential risks (e.g., virus attack).
Divergent Support is available to the Customer from Monday to Friday from 09:00 to 17:00 (CET/CEST) via e-mail at firstname.lastname@example.org. For support outside these hours, individual contract supplements (Service Level Agreements) can be concluded.
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.
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.
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.
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.
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.
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.
Zurich, June 2021 (replaces all previous versions)