Terms & Conditions
1. Services Provided by Smaac’s Brandhub
1.1 Right of use
Smaac’s Brandhubshall provide the software product named and described in the User Plan ("Software")to the Customer for use via the Internet ("Service"). TheCustomer is not entitled to further rights associated with the Software, suchas ownership, copyright, patent, trademark, or usage rights.
The Software shall be operated oncomputers of a computer center used by Smaac’s Brandhub. For the duration ofthis Agreement, the Customer is given the non-exclusive and non-transferableright to access the Software by means of a browser and an Internet connectionand to use same for its own business purposes exclusively for the exercise ofits commercial or independent professional activity. The Customer isresponsible for the Internet connection between the Customer and the computercenter and the hardware and software required for this purpose (e.g. PC,network connection, browser).
The right of use is limited to the numberof usage units booked by the Customer in accordance with the respective UserPlan. Any sub-licensing or further licensing of the Software is prohibited. TheCustomer has no right to a copy and thus also no right to a backup copy of theSoftware. All rights in the Software or the Service over and above the right ofuse defined in these GTC remain fully with Smaac’s Brandhub.
1.2 Restrictions
Customer will not,directly or indirectly: reverse engineer, decompile, disassemble or otherwiseattempt to discover the source code, object code or underlying structure,ideas, know-how or algorithms relevant to the Services or any software,documentation or data related to the Services; modify, translate, or createderivative works based on the Services or any Software (except to the extentexpressly permitted by Smaac’s Brandhub or authorized within the Services); orremove any proprietary notices or labels.
1.3 Operation
Smaac’s Brandhubshall take appropriate measures to make it possible for the Customer to use theService as interruption-free as possible. Smaac’s Brandhub cannot guaranteeavailability of the Service at all times and absence of any other disruptionsand interruptions to the functioning.
The Customer shall notify Smaac’s Brandhub of any disruptions to the Service without delay and provideinformation regarding the details of the circumstances of the issue. Smaac’s Brandhub shall remedy the disruption to the Service within an appropriateperiod of time. Smaac’s Brandhub is entitled to circumvent the disruption tothe Service by means of a workaround solution if the cause of the disruptionitself is only to be remedied with inappropriate expense and the usability ofthe Service is not significantly negatively affected.
1.4 Support
In support of useof the Software as a Service, Smaac’s Brandhub shall provide online support.The support shall not include: general know-how transfer, trainings,configuration implementation or customer-specific documentation or modificationof the Software.
Support shall be carried out by email to info@smaac.nl. Smaac’s Brandhub shall provide the support services during working hours from Monday to Thursday between 8.30 am and 5.00 pm UTC+1. Legal holidays are excluded. Inquiries received outside of thesesupport times shall be regarded as received on the following working day.
1.5 Changes to services
Smaac’s Brandhubmay modify the Software (Service, including its system requirements) for thepurposes of adapting to technical or commercial market changes and for goodcause. In particular, such shall be deemed to exist if the modification isrequired due to
a) a necessary adaptation to a newlegal situation or case law; b) changed technical framework conditions (newbrowser versions of technical standards); c) protection of system security, or;d) further development of the Software (disabling old functions that arelargely replaced by new ones).
2. Involvement of Third Parties
Smaac’s Brandhub isentitled to involve third parties for the purpose of meeting its contractualobligations. This shall, in particular, apply to hosting services.
Smaac’s Brandhub shall not accept anyliability for the services of third parties involved to the extent legallypermissible.
3. Customer Data,Data Protection and References
3.1 Customer data (Intellectual Property Rights)
TheCustomer is exclusively entitled to the data input, generated thereby andallocatable to the Customer and the end users of Customer in the context of theuse of the Software ("Customer Data").
Customershall own all right, title and interest in and to the Customer Data, as well asany data that is based on or derived from the Customer Data and provided toCustomer as part of the Services.
Smaac’sBrandhub shall own and retain all right, title and interest in and to (a) theServices and Software, all improvements, enhancements or modifications thereto,(b) any software, applications, inventions or other technology developed inconnection with implementation Services or support, and (c) all intellectualproperty rights related to any of the foregoing.
Theprovisions of this Section shall survive any termination of this Agreement.
3.2Data protection
TheCustomer is aware that the use and processing of personal data within themeaning of the applicable domestic and/or foreign data protection legislation,in particular and as far as applicable the EU General Data ProtectionRegulation ("EU-GDPR")and the Swiss Data Protection Act (Schweizerisches Datenschutzgesetz ("DSG"))may require the prior consent of the affected persons and/or the registrationof the relevant database with a domestic or foreign authority. Smaac’s Brandhubis, as far as applicable, fully compliant with the regulations of the EU-GDPR and the DSG.
IfSmaac’s Brandhub acts as the data processor, Smaac’s Brandhub shall process thecustomer data solely on behalf of and/or according to the instructions of theCustomer. The processed data is used to provide the Software and is handled inaccordance with Smaac’s Brandhub‘s Privacy Policy. The Customer remains responsible for thelawfulness of the collection, processing and use of the Customer data inaccordance with the applicable legal regulations, in particular pursuant toEU-GDPR and DSG. Therefore, Smaac’s Brandhub provides the Customer with theopportunity to sign a Data Processing Addendum ("DPA"), which thenforms an integral part of the contractual relationship between Smaac’s Brandhuband the Customer.
3.3References
Inthe context of its marketing activities and in the preparation of its offersfor projects of other customers, Smaac’s Brandhub is entitled to refer to theprojects realized by it for the Customer and to document same, subject to thejustified confidentiality interests and consent of the Customer.
Inparticular, Smaac’s Brandhub is entitled, subject to the consent of Customer,to publish the orders placed with same in the context of marketing activities,in particular refer to the business relationship on Smaac’s Brandhub’s websitewith the name and corporate logo of the Customer.
4Release
TheCustomer shall release Smaac’s Brandhub and involved third parties of allthird-party claims that may arise from (a) unlawful use of the Software by theCustomer and/or, with the consent of the Customer, by third parties, (b) disputesarising from data protection laws, copyright laws or other legal disputesassociated with the use of the Software by the Customer.
Customerhereby agrees to indemnify and hold harmless Smaac’s Brandhub against anydamages, losses, liabilities, settlements and expenses (including withoutlimitation costs and attorneys’ fees) in connection with any claim or actionthat arises from an alleged violation of the foregoing or otherwise fromCustomer’s use of Services.
Inthe assertion of relevant claims, the Customer is obligated to notify Smaac’sBrandhub thereof in writing without delay. In this case, Smaac’s Brandhub isentitled to block the Service for the Customer without delay and withoutproviding a grace period. Any compensation claim asserted by the Customer basedon the blocking of the Service is excluded.
5Liability
Smaac’sBrandhub shall not accept any liability whatsoever to the extent legallypermissible, in particular for
a)Damages,
- arising from the Customer’s violation of the contractual obligations;
- caused by Smaac’s Brandhub’s involved third parties or support persons;
- due to viruses;
- as a result of malicious code;
- subsequent to a hacker attack;
- subsequent to a software error;
- subsequent to an error in the operating system, disruptions to operations as a result of fault remedy, maintenance, infrastructure modifications, introduction of new technologies.
- subsequent to a faulty service pack from another manufacturer;
- as a result of data losses.
b)indirect or subsequent damages such as profits foregone, savings not realizedor third-party claims.
6 NoWarranties
Exceptas represented in this agreement, the Software and the Service of Smaac’sBrandhub is provided “as is”. Other than as provided in this agreement, Smaac’sBrandhub makes no other warranties, express or implied, and hereby disclaimsall implied warranties, including any warranty of merchantability and warrantyof fitness for a particular purpose.
7Term and Termination
7.1Term
TheUser Plan is concluded for a particular term (monthly or yearly) depending onthe Customer’s order ("BasicPeriod") and shall thereafter extend automatically by thesame period ("ExtensionPeriod") if the contractual relationship is not ordinarilyor extraordinarily terminated pursuant to Section 9.2 below by one of thecontractual parties.
Theprovisions of Section 9.2 shall apply as aforesaid with respect to a reductionin usage units during the term.
7.2Termination
a)Ordinary termination The contractual relationship may be terminated by any ofthe contractual parties at the end of the Basic Period or an Extension Period.
b)Extraordinary termination Smaac’s Brandhub may extraordinarily terminate thecontractual relationship for good cause at any time and with immediate effect.Good cause entitling Smaac’s Brandhub to extraordinary termination shallinclude, in particular:
- if the Customer violates its contractual obligations insofar as this defect was not or cannot be remedied by the Customer within 10 days despite prior written warning by Smaac’s Brandhub
- if the Customer defaults on the payment of fees;
- if insolvency proceedings are instituted against the Customer.
7.3Customer’s data after termination
Atthe end of the contractual relationship and upon written request by theCustomer, Smaac’s Brandhub shall provide a copy of the Customer’s data saved onits servers as of the date of the end of the contractual relationship on acustomary data carrier or by electronic transfer and in a customary format.
Atthe end of the 60 days from the end of the contractual relationship or uponrequest by the Customer already prior to this period, Smaac’s Brandhub shalldelete the data of the Customer saved on its servers finally and in full. Thisaction shall be subject to mandatory legal retention obligations.
Smaac’sBrandhub is not obligated to surrender its data to the Customer in deviation tothese provisions (in particular relating to time, format or migration). Anydeviating surrender of the Customer’s data shall require the prior writtenconsent of Smaac’s Brandhub as well as separate remuneration by the Customer.
8Confidentiality
Thecontractual partners obligate themselves and their employees and involvedsupport persons reciprocally to maintain the confidentiality of all documentsand information not generally known that relate to the business sphere of theother contractual party and, which become accessible in the preparations forand execution of this contractual relationship.
Theconfidentiality obligation shall continue to endure even after termination ofthe contractual relationship to the extent there is justified interest therein.
9 FinalProvisions
9.1 Amendments to these GTC
Smaac’sBrandhub shall notify the Customer of any amendments to these GTC. Anyamendments to the GTC shall enter into force for the contractual relationshipbetween Smaac’s Brandhub and the Customer insofar as the Customer does notobject to the amended GTC within a period of 10 days in writing.
9.2Offsetting and assignment of claims
Theoffsetting of any claims of Smaac’s Brandhub against counterclaims of theCustomer shall require the prior written consent of Smaac’s Brandhub.
TheCustomer is not entitled to assign any claims from the contractual relationshipwith Smaac’s Brandhub to third parties, in whole or in part, including not toany Group or subsidiary companies.
9.3Place of performance
Theplace of performance shall be the registered offices of Smaac’s Brandhub.
9.4Severability clause
Shouldindividual provisions of these GTC be invalid or incomplete or shouldperformance be impossible, this shall not negatively affect the validity of theremaining provisions of these GTC. Invalid provisions shall be replaced by anadmissible, valid provision that is as close as possible to the content of theoriginal in terms of its intent.
9.5Date of contract conclusion
Thecontract is deemed concluded by the receival of a confirmation e-mail aftersubscribing.
10Applicable Law and Place of Jurisdiction
Thecontractual relationship between Smaac’s Brandhub and the Customer, includingthe User Plan and its Appendices, are subject to Swiss law, under exclusion ofany national or international treaties or agreements legally valid at the timeof entry into force or a dispute (e.g. United Nations Convention on Contractsfor the International Sale of Goods (CISG) or the Hague Convention onPurchases).
Inthe event of any differences of opinion in connection with the contractualrelationship, the contractual parties undertake to attempt to agree to amutually agreed regulation in good faith. If, despite the efforts of thecontractual parties, no agreement can be made by amicable means, the place ofjurisdiction for all disputes, differences of opinion or claims arising from orin connection with the contractual relationship between Smaac’s Brandhub andthe Customer, including the User Plan and its Appendices, including theirvalidity, invalidity, violation or dissolution, shall be St. Gallen,Switzerland. Irrespective thereof, Smaac’s Brandhub is entitled to sue theCustomer at its general place of jurisdiction.
