Legal

General Terms of Use

Version 1.0 — Effective September 20, 2018

Futurae General Terms of Use

These Futurae Terms of Use (“Terms” or “Agreement”), including any
applicable Addendums, Annexes, Exhibits, etc., constitute a legal
agreement between you or your employer or other entity on whose behalf
you enter into this Agreement (the “Customer”) and Futurae Technologies
AG (“Futurae”).

YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING
THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED
ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE
AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR
ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE
AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.

YOU MAY NOT ACCESS THE SERVICE IF YOU ARE A FUTURAE COMPETITOR, EXCEPT
WITH THE PRIOR WRITTEN CONSENT OF FUTURAE.

If you register for a Free Trial, the Terms will also govern your use of
the Service during the trial period.

Futurae may amend these Terms from time to time by posting an amended
version at its website and sending Customer notice thereof (an email to
Customer’s project sponsor shall be deemed sufficient in this case).
Such amendment will be deemed accepted and become effective 30 days
after such notice (the “Proposed Amendment Date”) unless Customer first
gives Futurae written notice of rejection of the amendment. In the event
of such rejection, these Terms will continue under their original
provisions, and the amendment will become effective at the start of
Customer’s next Subscription Term following the Proposed Amendment Date.
Customer’s continued use of the Service following the effective date of
an amendment will confirm Customer’s consent thereto. These Terms may
not be amended in any other way except through a written agreement by
authorized representatives of each party.

1. Definitions

1.1. “Affiliate” means any legal entity in which Customer, directly or
indirectly controls more than 50% of the voting rights or shares. Any
such legal entity shall be considered an Affiliate for only such time as
such interest is maintained.

1.2. “Customer Data” means all electronic data or information submitted
by Customer to the Service.

1.3. “Documentation” means the online documentation for integrating and
using the Service, accessible via the Futurae website, as updated from
time to time.

1.4. “Effective Date” means the date that Customer signs the applicable
Order Form.

1.5. “Free Trial” means a no-cost trial or evaluation of the Service for
which Customer may register with Futurae via Order Form or online via
our website. Additional terms and conditions applicable to a Free Trial
may appear on the trial registration web page, which are incorporated
into this Agreement by reference and are legally binding.

1.6. “Order Form” means the ordering documents (including those
associated with online commerce) representing a purchase of the Service
that are executed hereunder and that specify, among other things, the
number of subscriptions ordered, the Subscription Term, applicable fees,
and applicable subscription tier of Technical Support.

1.7. “Purchased Service” means Service that Customer purchases under an
Order Form, as distinguished from that provided pursuant to a Free
Trial.

1.8. “Service” means the online, Web-based services, including
associated application programming interfaces (APIs), web components,
JavaScript libraries and software development kits (SDKs), offline
components, the Futurae mobile applications and SDKs for Android and
iOS, provided or managed by Futurae under an Order Form pursuant to a
Free Trial or a Purchased Service.

1.9. “Service Attributes” means Service usage data related to Customer’s
account, such as resource identifiers, metadata tags, security and
access roles, rules, usage policies, permissions, usage statistics and
analytics.

1.10. “Subscription Term” means the period of time between the
applicable Subscription Start Date and Subscription End Date as set
forth in an Order Form. The Subscription Term for Free Trials is the
start date of any Purchased Service subscriptions ordered by Customer
for such Service.

1.11. “Technical Support” means the trouble handling and break/fix
support services and assistance provided by Futurae. Futurae offers
second level of support, the first level being the support offered by
the Customer to its Users. Futurae offers varying Technical Support
subscription tiers.

1.12. “Users” means Customer’s and its Affiliates employees,
consultants, contractors or agents who are authorized to use the
Service.

2. Service

2.1. Provision of Service. Futurae shall make the Service available to
Customer pursuant to the terms and conditions set forth in this
Agreement and all Order Forms executed hereunder. During the term of
this Agreement, (i) the Service shall perform in accordance with the
Documentation, and (ii) the functionality of the Service will not be
decreased from that available as of the Effective Date. Customer agrees
that its purchase is not contingent upon the delivery of any future
functionality or features nor is it dependent upon any oral or written
public comments made by Futurae with respect to future functionality or
features.

2.2. Minimum System Requirements. Customer recognizes and agrees that in
order to utilize the Service certain minimum system requirements exist,
and can be found in the Documentation.

2.3 Service Level Agreement. Futurae warrants the availability of the
Service in accordance with the Service Level Agreement further described
at https://www.futurae.com/legal/sla.

2.4 Free Trial. Free Trials may only be installed in development and/or
testing environments and used solely for evaluation purposes and not for
the maintenance or processing of any data on which Customer would
typically rely in a production capable environment. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) Futurae DISCLAIMS ANY
LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S
USE OF THE SERVICE DURING A FREE TRIAL, and (ii) either party may
terminate a Free Trial at any time with or without cause, immediately
upon notice to the other party. The parties may extend the Subscription
End Date set forth in the respective Free Trial Order Form upon mutual
written agreement (email being sufficient).

3. Use of the Service

3.1. Futurae Responsibilities. Futurae shall use commercially reasonable
efforts to make the Service generally available 24 hours a day, 7 days a
week, as further set forth and described in the SLA. As part of the
Service, Futurae agrees to provide Customer with Technical Support
consistent with such support subscription tier purchased by Customer.
Futurae shall constantly develop and improve the Service through ongoing
updates and upgrades. Futurae shall continuously monitor the
functionality of the software and shall eliminate any software errors
according to the technical possibilities. In particular, an error exists
if the software is not functioning as specified in the service
description, delivers incorrect results, or does not function properly
in any other way, making the use of the software impossible or
considerably restricted.

3.2. Customer Responsibilities. Customer is responsible for all
activities that occur under Customer’s User accounts. Customer shall:
(i) have sole responsibility for the accuracy, quality, integrity,
legality, reliability, and appropriateness of all Customer Data; (ii)
use commercially reasonable efforts to prevent unauthorized access to,
or use of, the Service, and notify Futurae promptly of any such
unauthorized use; and (iii) comply with all applicable local, state,
federal, and foreign laws in using the Service.

3.3. Use Guidelines. Customer shall not: (i) license, sublicense, sell,
resell, rent, lease, transfer, assign, distribute, time share or
otherwise commercially exploit or make the Service available to any
third party, other than as contemplated by this Agreement; (ii)
knowingly send spam or otherwise duplicative or unsolicited messages in
violation of applicable laws; (iii) knowingly send or store infringing,
obscene, threatening, libelous, or otherwise unlawful or tortious
material, including material harmful to children or in violation of
third party privacy rights; (iv) knowingly send or store material
containing software viruses, worms, Trojan horses or other harmful
computer code, files, scripts, agents or programs; (v) interfere with or
disrupt the integrity or performance of the Service or the data
contained therein; (vi) attempt to gain unauthorized access to the
Service or its related systems or networks: or (vii) use the Service in
excess of the licensed quantity as set forth in the applicable Order
Form. At all times Customer remains responsible for Affiliates’ use of
the Service and related Documentation. A breach of the Agreement by a
Customer Affiliate shall be considered a breach by Customer hereunder.

3.4 Third Party Services. Use of the Service may require Users to
install Futurae software on their mobile devices, which use shall be
subject to this Agreement. Customer’s use of third party products or
services that are not licensed to Customer directly by Futurae (“Third
Party Services”) shall be governed solely by the terms and conditions
applicable to such Third Party Services, as agreed to between Customer
and the third party. Futurae does not endorse or support, is not
responsible for, and disclaims all liability with respect to Third Party
Services, including without limitation, the privacy practices, data
security processes or other policies related to Third Party Services.
Customer agrees to waive any claim against Futurae with respect to any
Third Party Services.

3.5 Users’ Personal Information. Customer acknowledges that the Service
will require Users to share with Futurae certain information which may
include personal information regarding Users (such as usernames, Futurae
admin panel passwords, email address and/or phone number) solely for the
purposes of providing and improving the Service. Prior to authorizing an
individual to become a User, Customer is fully responsible for obtaining
the consent of that individual, in accordance with applicable law, to
the use of his/her information by Futurae. Customer represents and
warrants that all such consents have been or will be obtained prior to
authorizing any individual to become a User.

3.6 Users’ Compliance. Customer will be fully responsible for Users’
compliance with this Agreement and any breach of this Agreement by a
User shall be deemed to be a breach by Customer. Futurae’s relationship
is with Customer and not individual Users or third parties using the
Service through Customer, and Customer will address all claims raised by
its Users, and third parties using the Service through Customer,
directly with Futurae. Customer must ensure that all third parties that
utilize the Service through Customer agree (a) to use the Service in
full compliance with this Agreement, and (b) to the extent permitted by
applicable law, to waive any and all claims directly against Futurae
related to the Service.

4. Security and Data Privacy

4.1. Protection of Customer Data. Futurae has adopted and will maintain
industry-standard administrative, physical, and technical safeguards
designed to protect the security, privacy and integrity of Customer
Data. Futurae shall not be responsible for loss of data transmitted on
networks not owned or operated by Futurae, including the Internet.

4.2. Use of Service Attributes and Anonymized Data. Futurae may process,
use and share certain Service Attributes for internal business purposes,
for example, to support proper functioning of the Service, to provide
Customer with support services and to investigate fraud, abuse or
violations of this Agreement. Futurae may also process, share,
reproduce, or otherwise use Service Attributes and Customer Data in the
form of Anonymized Data in any way, in Futurae’s sole discretion.
“Anonymized Data” means Service Attributes and/or Customer Data with the
following removed: personally identifiable information and the names and
addresses of Customer and any of its Users or customers.

5. Fees & Payment

5.1. Fees. Customer shall pay all fees specified in all executed Order
Forms hereunder. Except as otherwise provided, (i) all fees are quoted
in Swiss Francs, (ii) fees are non-refundable, and (iii) Customer may
not downgrade the purchased subscription level during the relevant
Subscription Term stated in the Order Form (if applicable).

5.2. Invoicing & Payment. Fees for the term of the Service will be
invoiced either monthly or annually in accordance with the terms set
forth in the relevant Order Form, and paid by credit card or bank
transfer. Unless otherwise stated in the Order Form, charges are due net
30 days from the invoice date. Unless otherwise stated in the Order
Form, all payments made under this Agreement shall be in Swiss Francs.
Invoices submitted via email should be sent in individual attachments
(one invoice per attachment) in either PDF or TIFF formats to an email
address provided by Customer.

5.3. Overdue Payments. Any payment not received from Customer by the due
date may accrue (except with respect to charges then under reasonable
and good faith dispute), at Futurae’s discretion, late charges at the
rate of 1% of the outstanding balance per month, or the maximum rate
permitted by law, whichever is lower, from the date such payment was due
until the date paid.

5.4. Suspension of Service. If Customer’s account is 30 days or more
overdue (except with respect to charges then under reasonable and good
faith dispute), in addition to any of its other rights or remedies,
Futurae reserves the right to suspend the Service provided to Customer,
without liability to Customer, until such amounts are paid in full.

5.5 Taxes. Unless otherwise stated, Futurae’s fees do not include any
local, state, federal or foreign taxes, levies or duties of any nature
(“Taxes”). Customer is responsible for paying all Taxes, excluding only
taxes based on Futurae’s income. If Futurae has the legal obligation to
pay or collect Taxes for which Customer is responsible under this
Section, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides Futurae with a valid tax exemption
certificate authorized by the appropriate taxing authority.

6. Proprietary Rights

6.1. Reservation of Rights. Customer acknowledges (a) that in providing
the Service, Futurae utilizes (i) the futurae.com name, the futurae.com
logo, the futurae.com domain name and subdomains, the product and
service names associated with the Service, and other trademarks and
service marks; (ii) certain audio and visual information, documents,
software and other works of authorship; and (iii) other technology,
software, hardware, products, processes, algorithms, user interfaces,
know-how and other trade secrets, techniques, designs, inventions and
other tangible or intangible technical material or information
(collectively, “Futurae Technology”) and (b) that the Futurae Technology
is covered by intellectual property rights owned or licensed by Futurae
(collectively, “Futurae IP Rights”). Other than as expressly set forth
in this Agreement, no license or other rights in or to the Futurae
Technology or Futurae IP Rights are granted to Customer, and all such
licenses and rights are hereby expressly reserved. Any suggestions,
ideas, enhancement requests, feedback, recommendations or other
information provided by Customer or any third party relating to the
Service are hereby assigned to Futurae.

6.2. License Grant. Futurae grants Customer and its Users a worldwide,
non-exclusive, non-transferable (except in connection with a permitted
assignment of this Agreement), non-sublicenseable right to access and
use the Service for its internal business purposes and otherwise in
accordance with the terms of this Agreement. Futurae reserves the right,
with reasonable notice to Customer, to audit Customer’s use of the
Service no more than once each calendar year to ensure compliance with
the terms of the Agreement.

6.3. Restrictions. Customer shall not (i) modify, copy or create
derivative works based on the Service or Futurae Technology; (ii) allow
non-Users to access the Futurae Services without sufficient Futurae
licenses; (iii) access the Service via any sort of ‘bot’ or other
malicious piece of software; or (iv) disassemble, reverse engineer, or
decompile the Service or Futurae Technology, or access it in order to
(A) build a competitive product or service, (B) build a product or
service using similar ideas, features, functions or graphics of the
Service, or (C) copy any ideas, features, functions or graphics of the
Service.

6.4. Customer Data. As between Futurae and Customer, all Customer Data
is owned exclusively by Customer. Customer Data shall be considered
Confidential Information subject to the terms of this Agreement.

7. Confidentiality

7.1. Definition of Confidential Information. As used herein,
“Confidential Information” means all confidential and proprietary
information of a party (“Disclosing Party”) disclosed to the other party
(“Receiving Party”), whether orally or in writing, that is designated as
confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure,
including the terms and conditions of this Agreement (including pricing
and other terms reflected in all Order Forms hereunder), the Customer
Data, the Service, the Futurae Technology, business and marketing plans,
technology and technical information, screen and product designs
interoperability of the Service with third-party products and software,
and business processes. Confidential Information (except for Customer
Data) shall not include any information that: (i) is or becomes
generally known to the public without breach of any obligation owed to
the Disclosing Party; (ii) was known to the Receiving Party prior to its
disclosure by the Disclosing Party without breach of any obligation owed
to the Disclosing Party; (iii) was independently developed by the
Receiving Party without breach of any obligation owed to the Disclosing
Party; or (iv) is received from a third party without breach of any
obligation owed to the Disclosing Party.

7.2. Non-Disclosure and Use Restrictions. The Receiving Party shall not
disclose or use any Confidential Information of the Disclosing Party for
any purpose outside the scope of this Agreement, except with the
Disclosing Party’s prior written permission.

7.3 Protection. Each party agrees to protect the confidentiality of the
Confidential Information of the other party in the same manner that it
protects the confidentiality of its own proprietary and confidential
information of like kind, but in no event shall either party exercise
less than reasonable care in protecting such Confidential Information.
The Receiving Party shall, except as otherwise authorized by the
Disclosing Party in writing, limit access to Confidential Information of
the Disclosing Party to those of its and its Affiliates’ employees,
contractors and agents who need such access for purposes consistent with
this Agreement and who have signed confidentiality agreements with the
Receiving Party containing protections no less stringent than those
herein for the protection of Confidential Information. The Receiving
Party shall be responsible for any use or disclosure of Confidential
Information by any of its, and its Affiliates’, employees, contractors
and/or agents.

7.4 Compelled Disclosure. If the Receiving Party is compelled by law to
disclose Confidential Information of the Disclosing Party, it shall
provide the Disclosing Party with prior notice of such compelled
disclosure (to the extent legally permitted) and reasonable assistance,
at Disclosing Party’s cost, if the Disclosing Party wishes to contest
the disclosure.

7.5 Remedies. If the Receiving Party discloses or uses (or threatens to
disclose or use) any Confidential Information of the Disclosing Party in
breach of this Section 7, the Disclosing Party shall have the right, in
addition to any other remedies available to it, to seek injunctive
relief to enjoin such acts, it being specifically acknowledged by the
parties that any other available remedies are inadequate.

8. Warranties & Disclaimers

8.1. Warranties. Each party represents and warrants that it has the
legal power to enter into this Agreement. Futurae represents and
warrants that (i) it will provide the Service in a manner consistent
with general industry standards reasonably applicable to the provision
thereof; (ii) it owns or otherwise has sufficient rights to the Service
and the Futurae Technology to grant the rights and licenses granted
herein; and (iii) the Service and Futurae Technology do not infringe any
intellectual property rights of any third party.

8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Futurae MAKES NO
WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
FUTURAE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Mutual Indemnification

9.1. Indemnification by Futurae. Subject to this Agreement, Futurae
shall (a) defend, or at its option settle, any claim, demand, action or
legal proceeding (“Claim”) made or brought against Customer by a third
party alleging that the use of the Service as contemplated hereunder
infringes the intellectual property rights of a third party, and (b) pay
(i) any final judgment or award directly resulting from such Claim to
the extent such judgment or award is based upon such alleged
infringement or (ii) those damages agreed to by Futurae in a monetary
settlement of such Claim; provided, that Customer (a) promptly gives
written notice of the Claim to Futurae; (b) gives Futurae sole control
of the defense and settlement of the Claim (provided that Futurae may
not settle or defend any Claim unless it unconditionally releases
Customer of all liability); and (c) provides to Futurae, at Futurae’s
cost, all reasonable assistance. Customer will have the right to
participate in the defense, including retention of and/or advice of
separate counsel, at its own expense.

The foregoing obligations do not apply with respect to portions or
components of the Service (i) not created by Futurae, (ii) resulting in
whole or in part from Customer specifications, (iii) that are modified
after delivery by Futurae, (iv) combined with other products, processes
or materials where the alleged infringement relates to such combination,
(v) where Customer continues allegedly infringing activity after being
notified thereof or after being informed of modifications that would
have avoided the alleged infringement, or (vi) where Customer’s use of
Service is not strictly in accordance with this Agreement and all
related Documentation. If Futurae receives information about an actual
or alleged infringement or misappropriation claim that would be subject
to indemnification rights set forth in this Section 9, Futurae shall
have the option, at its expense, to: (a) modify the Service to be
non-infringing; or (b) obtain for Customer a license to continue using
the Service. If Futurae determines it is not commercially reasonable to
perform either of the above options, then Futurae may at its option
elect to terminate the license for the Service and refund the unearned
portion of any pre-paid fees, prorated on a monthly basis. THIS SECTION
STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT,
MISAPPROPRIATION AND/OR CLAIMS ALLEGING INFRINGEMENT OR
MISAPPROPRIATION. Futurae’s obligations under this Section 9 do not
apply to Customer’s use of the Service under a Free Trial.

9.2. Indemnification by Customer. Subject to this Agreement, Customer
shall (a) defend, or at its option settle, any Claim made or brought
against Futurae by a third party alleging that the Customer Data or
Customer’s unlawful use of the Service (as opposed to the Service
itself) infringes the intellectual property rights of, or has otherwise
harmed, a third party and (b) pay (i) any final judgment or award
directly resulting from such Claim to the extent such judgment or award
is based upon such alleged infringement or (ii) those damages agreed to
by Customer in a monetary settlement of such Claim; provided, that
Futurae (a) promptly gives written notice of the Claim to Customer; (b)
gives Customer sole control of the defense and settlement of the Claim
(provided that Customer may not settle or defend any Claim unless it
unconditionally releases Futurae of all liability); and (c) provides to
Customer, at Customer’s cost, all reasonable assistance. Futurae will
have the right to participate in the defense, including retention of
and/or advice of separate counsel, at its own expense.

10. Limitation of Liability

10.1. Limitation of Liability. EXCEPT FOR ANY OTHER LIABILITY THAT
CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY’S LIABILITY WITH
RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS
AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12
MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER
PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE
LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND
REGARDLESS OF THE THEORY OF LIABILITY.

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL
EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS,
LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.

11. Term & Termination

11.1 Term of Agreement. Subject to earlier termination as expressly
provided for in this Agreement, the initial Term of this Agreement shall
be for the Term specified in the Order Form, or in the event of multiple
Order Forms, until the Term of all Order Forms has expired. Each Order
Form and this Agreement shall automatically renew after the initial Term
and any renewal Term for a renewal Term equal to the expiring
subscription Term, unless either party provides to the other at least
forty-five (45) days prior written notice that it will not renew. The
fees for each renewal Term will be equal to the fees for the immediately
prior Term, plus a price increase. Any pricing increase will not exceed
seven percent (7%) per year, unless the pricing was designated in the
applicable Order Form as promotional or one-time.

11.2. Uninstall and Delete. Upon termination or expiration of this
Agreement, Customer will uninstall and delete, from all Customer
desktop, mobile, server, web and other environments, any Futurae
provided software related to the Service. This includes managed packages
or other software that has been installed in Customer environments.

11.3. Termination for Cause. A party may terminate this Agreement for
cause: (i) upon 30 days’ written notice of a material breach to the
other party if such breach remains uncured at the expiration of such
period; or (ii) if the other party becomes the subject of a petition in
bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors. Upon any
termination for cause by Customer, Customer shall be entitled as its
sole and exclusive remedy, to receive a refund of any prepaid fees paid
by Customer to Futurae for Services not rendered as of the termination
date.

11.4. Outstanding Fees. Termination shall not relieve Customer of the
obligation to pay any fees accrued or payable to Futurae prior to the
effective date of termination.

11.5. Surviving Provisions. The following provisions shall survive any
termination or expiration of this Agreement: Sections 5, 6 (excluding
Section 6.2), 7, 8, 9, 10, 11 and 12.

12. General Provisions

12.1. Relationship of the Parties. This Agreement does not create a
franchise, joint venture, agency, fiduciary or employment relationship
between the parties.

12.2. No Third-Party Beneficiaries. There are no third-party
beneficiaries to this Agreement.

12.3. Notices. All notices under this Agreement shall be in writing and
shall be deemed to have been given upon: (i) personal delivery; (ii) the
second business day after mailing; (iii) the second business day after
sending by confirmed facsimile; or (iv) the second business day after
sending by email.

12.4. Waiver and Cumulative Remedies. No failure or delay by either
party in exercising any right under this Agreement shall constitute a
waiver of that right. Other than as expressly stated herein, the
remedies provided herein are in addition to, and not exclusive of, any
other remedies of a party at law or in equity.

12.5. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the provision
shall be modified by the court and interpreted so as best to accomplish
the objectives of the original provision to the fullest extent permitted
by law, and the remaining provisions of this Agreement shall remain in
effect.

12.6. Assignment. Neither party may assign any of its rights or
obligations hereunder, whether by operation of law or otherwise, without
the prior express written consent of the other party. Notwithstanding
the foregoing, either party may assign this Agreement together with all
rights and obligations hereunder, without consent of the other party, in
connection with a merger, acquisition, corporate reorganization, or sale
of all or substantially all of its assets not involving a direct
competitor of the other party. Any attempt by a party to assign its
rights or obligations under this Agreement in breach of this Section
shall be void and of no effect. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of the parties, their respective
successors and permitted assigns.

12.7. Attorneys’ Fees. In any legal action or proceeding arising from,
related to, or brought to enforce, construe, interpret, rescind or
cancel this Agreement or any of its provisions (including any Order
Forms executed hereunder), the prevailing party shall be entitled to
recover from the other party reasonable attorneys’ fees and costs
incurred in connection with such action or proceeding, in addition to
any other relief to which it may be entitled.

12.8. Governing Law. This Agreement and all claims arising from it shall
be exclusively governed by the law of the Swiss Confederation to the
exclusion of the provisions of Private International Law (PIL) and the
UN Convention on Contracts for the International Sale of Goods (CiSG).

12.9. Venue. Zurich, Switzerland is agreed as the exclusive place of
jurisdiction for all disputes arising in connection with the fulfillment
of this contractual relationship. Each party also hereby waives any
right to jury trial in connection with any action or litigation in any
way arising out of or related to this Agreement.

12.10. Entire Agreement. This Agreement, including all exhibits and
addenda hereto and all Order Forms executed hereunder, constitute the
entire agreement between the parties, and supersede all prior and
contemporaneous agreements, proposals or representations, written or
oral, concerning its subject matter. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless in
writing and signed by the party against whom the modification, amendment
or waiver is to be asserted. In the event of any conflict between the
provisions in this Agreement and any exhibit or addendum hereto, or
Order Form executed hereunder, the terms of this Agreement shall prevail
to the extent of any inconsistency, except with regard to any provision
of any exhibit, addendum or Order Form that specifically identifies a
conflicting provision of this Agreement and states that the conflicting
provision of this Agreement does not prevail. Notwithstanding any
language to the contrary therein, no terms or conditions stated in a
Customer purchase order or in any other Customer order documentation
(excluding Order Forms) shall be incorporated into or form any part of
this Agreement, and all such terms or conditions shall be null and void.
Installation and/or use of third party software applications may require
the User to accept certain “click-through” terms. Such terms flow
directly between the User and such third party.