1. Scope of application and validity
2. Subject of the contract
The SOFTWARE and/or SERVICES shall be deemed to be ordered to the extent that the customer’s order is confirmed by FortunIT by means of an order confirmation and the quantities or SERVICES listed therein. The order confirmation will be sent by email or in the format provided by FortunIT.
You acknowledge and agree that the SOFTWARE is operated in data centres and on infrastructure with established providers in Switzerland.
4. Limits of usage rights
You are not authorized to make any changes to the SOFTWARE or to have them made by third parties. In particular, you agree to refrain from and not allow any third party to use any copyright notices, trademarks or you specifically agree not to remove, alter or obscure any copyright notices, trademarks or other proprietary notices appearing in connection with the SOFTWARE, to copy, reverse engineer, decompile or disassemble the SOFTWARE or otherwise attempt to derive the source code of the SOFTWARE, to sell or lease the SOFTWARE, to license the SOFTWARE, to transfer the SOFTWARE or its use or otherwise transfer any rights or to exploit the SOFTWARE in any unauthorized manner.
The permissible scope of use results from the order as stated in the order confirmation as well as from the other parts of the contract. If the use of the SOFTWARE exceeds the permitted extent, you must pay an appropriate compensation for the excessive use. Further claims on our part or on the part of third parties against you remain reserved.
5. Permitted use of the SOFTWARE
You are solely responsible for the content of the data and information processed in connection with the use of the SOFTWARE. You agree to comply with the terms of the agreement, in particular our Acceptable Use Policy, as published and available at www.fasolit.com.
You will indemnify and hold us harmless from and against any and all third-party claims, including attorneys’ fees, arising out of your unlawful use of the SOFTWARE or arising out of any data privacy, copyright or other legal dispute related to your non-contractual or unlawful use of the SOFTWARE. When using the SOFTWARE, you shall comply with the applicable laws and shall not violate any rights of third parties, in particular intellectual property rights, personal rights, and rights to a name. In particular, you shall refrain from storing, distributing and displaying unlawful or immoral content as well as harmful program code.
6. Provision of the SOFTWARE
We make the SOFTWARE available to you in a standard configuration. It is up to you to configure the SOFTWARE according to your own requirements within the scope of the contract components.
We are responsible for the infrastructure on which the SOFTWARE is hosted unless you operate the infrastructure yourself. The infrastructure is shared by several of our customers. Through technical measures, the respective instances are logically separated from each other.
The locations of the data centres and the security measures are detailed in the appendix (infrastructure and security). We have taken appropriate technical and organizational security measures to ensure that the confidentiality of the data is maintained.
7. Support services
We provide support services for the SOFTWARE as described in the appendix.
8. Backup of data, storage, return
You are responsible for creating and checking data backups. We provide you with appropriate functions in the SOFTWARE. Likewise, the restoration of data can be carried out via the SOFTWARE. Paragraph 2 remains subject to change.
We store your own completed transactions, stock shift- and order processes in the SOFTWARE for three years. After that, they will be deleted. For your order transactions, corresponding receipts are made, which you can download via the SOFTWARE.
At the end of the contract period, you have the right to receive your stored data in an easily readable format, as far as they have not already been deleted. The claim for data return must be made within 14 days after the end of the contractual relationship. Otherwise, we will delete the data stored by you with us (transaction data, stock data, etc.).
9. Data protection and security
The parties undertake to comply with the applicable data protection regulations and to process data carefully. In all other respects, the corresponding data protection annex shall apply.
9.1 Use of personal data by FortunIT
For and in connection with the operation of the SOFTWARE, we may collect personal data ourselves, obtain it from third parties, store it, process it, and pass it on to third parties in compliance with applicable data protection standards. In this context, personal data may be used by us or by consulted third parties in particular in the following ways: a) to verify prerequisites for the conclusion of a contract, b) to fulfil contractual obligations to the customer, c) to maintain and develop the customer relationship as well as usage behaviour, d) for address validation, e) to prevent unlawful use of services (in particular to prevent cases of fraud such as excessive usage, etc.), f) for invoicing, g) for financing and collection purposes, h) for the provision of services with manufacturers.
9.2 Disclosure abroad
Personal data can be disclosed abroad within the framework of the legal or preceding provisions. If your personal data is transferred abroad, the data protection requirements in accordance with the currently valid version of the federal law on data protection or corresponding statutory provisions shall be observed.
9.3 Supplementary agreements
In all other respects, the appendix to the data protection/contract data processing agreement shall apply.
10 Further development
We continuously improve and develop the SOFTWARE. We may, at our discretion, install a new version of the SOFTWARE on our infrastructure (updates).
We will notify you about updates at least two months in advance. At the same time, we will inform you about the changes of functions as well as interfaces.
You agree to pay the prices agreed upon at the conclusion of the contract for the use of the SOFTWARE. All prices are net prices in Swiss Francs (CHF) excluding value added tax as well as additional costs such as public charges etc. at your expense.
We have the right to adjust the prices with a notice period of 1 month to the end of each month. The adjustment of the prices does not entitle you to terminate the contract or the order prematurely.
11.2 Terms of payment and default
Invoices are due for payment net 10 (ten) days after the invoice date. After expiration of this period, you are in default without reminder.
In case of default of payment, we are entitled without further warning to stop your access to the SOFTWARE in whole or in part or to make it dependent on securities until the claim has been settled or secured. All consequences resulting from such a restriction of use shall be borne exclusively by you. We expressly reserve the right to assert further claims for damages.
If you do not settle the claim or secure its fulfilment even within a period of grace set by us, we shall be entitled to terminate the contracts extraordinarily and to assert all further claims. You are obliged to notify us immediately if liquidity bottlenecks are foreseeable. We have the right to hand over and/or assign the claim as well as the related documents and information to third parties for collection purposes.
You are not entitled to set off any counterclaims against our claims.
We guarantee that the SOFTWARE fulfils the functions described in the contract components when used according to the contract during the contract period.
You acknowledge that a malfunction of the SOFTWARE cannot be completely excluded even with the greatest care and that the uninterrupted availability and functionality cannot be guaranteed.
We offer no guarantee for the timeliness of the data stored with the SOFTWARE. Especially in case of delayed data transfer due to possible connection problems during data acquisition. Further warranties are expressly excluded.
13. Liability and indemnity
Each party is liable for intentional or grossly negligent caused direct damage and personal injury without limitation. Liability for any other damage such as damage caused by slight negligence or indirect or consequential damage such as loss of profit or damage from loss of data is expressly and fully excluded.
You indemnify us from any liability and from any damages, if third parties assert claims against us, which are due to your non-contractual or illegal use of the SOFTWARE. We indemnify you from any liability and damages, if third parties claim an infringement of their intellectual property rights in connection with your use of the SOFTWARE in accordance with the contract. The indemnity obligation also includes the party’s own expenses incurred in connection with proceedings or investigations initiated by the other party. Each party shall support the other party to an appropriate and reasonable extent and shall inform the other party immediately in writing of any third-party claims asserted.
14. Force majeure
Force majeure shall mean all unpredictable events as well as events the effects of which on the performance of the contract are not the responsibility of either party, including third parties involved. These include, but are not limited to, acts of nature including natural disasters, mobilization, war, riots, epidemics, pandemics, accidents, sabotage, terrorism, labour disputes as well as official measures, significant operational disruptions, interruption of telecommunications lines, in particular those of the Internet, power failures, virus attacks and the like.
15. Duration and termination of the contract
An order resp. the contract comes into force with the order confirmation; the contract duration of the contract resp. an order starts with the access to the SOFTWARE and is concluded for the duration of one year. It shall be renewed for one year at a time unless it is terminated in writing by either party with one month’s notice prior to the end of a contract year.
Either party is entitled to terminate an order or the contract at any time without notice for good cause. Good cause shall be deemed to exist in particular if the other party commits a material breach of contract and fails to remedy such breach within twenty days despite a written warning, or if the continuation of the order or the contract is objectively no longer reasonable. Our right to block your access completely or temporarily for good cause and without written warning shall remain reserved (clause 6 of the contract).
Both parties undertake to keep secret all technical and commercial information which they receive in connection with their business relationship. No distinction shall be made as to whether such information originates directly from the contracting party or from third parties.
The information may only be disclosed to third parties by both parties if the other party expressly agrees.
The parties shall also be obliged to maintain confidentiality a) if the information does not lead to an order, b) if the project is terminated prematurely, c) if the information is not related to the business relationship.
The obligation to maintain secrecy shall continue for 2 years after termination of the contractual relationship to the same extent as before.
17. Involvement of third parties
You agree that we may involve third parties for the provision of services at our own discretion. We will inform you in advance of the involvement of a third party.
We undertake to conclude a contract with third parties that is at least as strict as the present one regarding obligations towards you.
18. Final provisionsChanges and additions to this contract must be made in writing.
This contract or individual rights and obligations arising from it may only be assigned or transferred to third parties with our prior written consent.
Should certain points not be regulated, or individual provisions be invalid, the order or the contract shall nevertheless remain in force. The parties undertake to replace an invalid provision with a valid provision whose content comes as close as possible to the economic purpose of the invalid provision. This shall apply to possible gaps
This contract resp. this order is subject to Swiss law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the Federal Act on Private International Law (PILA).
The exclusive place of jurisdiction for all legal disputes arising from or in connection with this order or this contract is Lachen, Switzerland.
Lachen, November 2020