General Terms & Conditions

GENERAL TERMS AND CONDITIONS FOR CONTRACTING AGNOSTIC INTELLIGNECE SERVICES

In addition to these General Terms and Conditions (hereinafter, „GTC“), the specific conditions agreed in the Order Form and/or Service Contract applicable to the products and services contracted and any other annexes or documentation (hereinafter, the „Order Form“ and/or “Service Contract” and the „Specific Conditions“) provided by AGNOSTIC INTELLIGENCE AG (hereinafter, „Agnostic Intelligence“ or the „Company“) to the Customer (hereinafter, the „Customer“) shall also apply. The Order Form and/or Service Contract and the Annexes shall form an indivisible part of this document and shall supplement and, where applicable, prevail over the provisions of these GTC. The GTC, the Order Form and/or Service Contract shall together be referred to as the „Agreement“. For avoidance of doubt, the specific product purchased by the Customer under this Agreement shall be referenced in the Order Form.

To this effect, with the intention of regulating the provision of the Services, the GTC set forth the following clauses:

1. PURPOSE.

The purpose of these GTC is to regulate the terms and conditions that will apply to the products and services of Agnostic Intelligence, which are provided in favour of the Customer in exchange for the remuneration agreed in Clause 3. The products and services to be contracted by the Customer shall be, among others, Agnostic Intelligence TPRM Platform (hereinafter, the „Platform“), Software as a Service (SaaS) subscriptions, Software licenses, Software implementation / configuration services or Software support and maintenance services, assessment services or project related services (the „Services“).

2. DURATION.

The Agreement shall enter into force on the earlier date of its signature and shall remain in force until termination as indicated in the Order Form. The Agreement will be extended for as long as the Customer maintains any contracted Service, and the Service may be terminated, with the prior notice established in the Order Form and, if not established in the Order Form, within three (3) months, unless a fixed term has been agreed. In this case, at the end of the term agreed in the Order Form, the Services shall be extended for subsequent periods of one (1) year. Any obligation, expressly or impliedly intended to continue in force after the termination of the Agreement, shall continue to bind the Parties.

3. REMUNERATION AND PAYMENT.

The remuneration shall be as set forth in the Order Form. Unless otherwise agreed between the parties, (i) the Customer shall pay all amounts due under the Agreement in the currency established in the Order Form, unless not specified in the Order Form in which case it will be in Swiss Francs (CHF); and (ii) all amounts invoiced under this Agreement shall be due and payable within fourteen (14) days from the date of issuance of the invoice. All fees and other amounts paid by the Customer to the Company under this Agreement are non-refundable. Any amounts not paid when due shall bear interest daily until paid in full at the lesser of (i) the rate of one and one-half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value added, withholding and other direct or indirect taxes, fees, levies, and duties. The Company shall be authorized to increase the price of the Services at least once (1) per year in accordance with the applicable price index or a higher percentage for good and reasonable cause up to a maximum of 15%, unless otherwise set forth in the Order Form. All taxes, withholding and fees of any kind payable in connection with the Services under this Agreement, other than taxes based on the Company’s net income, shall be borne, and paid by the Customer. Any other Services not established in this Agreement shall be budgeted separately and shall be agreed upon by the Parties in an Addendum.

4. LICENSE TERMS.

The Company shall grant the Platform to the Customer, and the Customer accepts, a limited, personal, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Platform solely for Customer’s internal business purposes, in accordance with and subject to the terms set forth in the GTC and, in particular, its Annexes and the Order Form. The Platform will be provided online by remote means on a Software as a Service (SaaS) basis, subject to the terms and conditions that may apply depending on the Service contracted in Annex A. It is hereby clarified that Customer shall have no rights of any nature whatsoever with respect to the source code or executable code of the Software, or any other material or content hosted on, linked to or related to the Platform or Software. The terms and conditions of this Agreement apply to any updates, upgrades, new versions and/or additional features that may be released by the Company during the term of the Services (these updates, upgrades, new versions and/or additional features may be subject to payment of additional fees, as applicable). The Company may make certain Documentation (which shall be considered part of Company’s Confidential Information (as defined below)) available to Customer for Customer’s use within Customer’s internal business purposes and solely in connection with Customer’s use of the Platform or enjoyment of the Services. „Documentation“ means the Company’s standard user guides and/or documentation, whether in paper or any electronic format, links, or other media, describing the use, features and operation of the Platform or Software and Services.

5. INSTANCE.

One instance of the Platform will be provided for each environment, (SaaS) as determined by the parties in the Order Form. An account will be created in connection with Customer’s use of the Platform and Services (the „Account“), which may only be accessed and/or used by Customer’s employees or service providers who are explicitly authorized by Customer to use the Platform and Services (each, an „Authorized User“). The Customer may grant access to as many Authorized Users as it deems appropriate, subject only to the consumption of the agreed number of transactions or resources. Customer hereby acknowledges and agrees to: (i) maintain, and ensure that Authorized Users keep login information and Account passwords protected at all times and otherwise comply with the terms of this Agreement; (ii) remain solely responsible for Account activity and any breach of this Agreement by an Authorized User; and (iii) immediately (and at the latest with 72 hours after having become aware of the unauthorized access to or use of) notify the Company in writing if the Customer becomes aware of any unauthorized access to or use of the Account or the Platform.

6. PROHIBITED USES.

Except as expressly permitted herein, without Company’s prior written consent, the Customer shall not, and neither will permit any Authorized User or any third party, directly or indirectly, to: (i) modify, incorporate into or with other software, or create a derivative or composite work from any part of the Software; (ii) sell, license (or sublicense), rent, assign, transfer, pledge or share the Customer’s rights under this Agreement with or to any third party; (iii) copy, distribute or reproduce the Software for the benefit of any third party; (iv) disclose the models, the data or any other part of the Software, and the results of any testing or benchmarking of the Software to any third party, or use such results for Customer’s own competing software development activities or use the Software for the purpose of creating or endorsing and/or assisting a third party to create products or services that are competitive with the Company’s business; (v) modify, disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to discover the source code of the Software or the internal processes or underlying algorithms of the Software; (vi) use the Software in a manner that violates or infringes any third party rights, including but not limited to privacy rights, intellectual property rights of third parties, including but not limited to copyrights, trademarks, designs, patents and trade secrets; (vii) remove or otherwise modify any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, affixed to, incorporated in, included in or attached to the Software, or copy the Documentation or any written materials accompanying the Software; (ix) use the Software for purposes other than those for which it is designated or which are not in accordance with the terms of this Agreement or in the applicable Order Form. In particular, Customer must not use the Software in any way that exceed the terms and purpose of the specific product purchased in the applicable Order Form and as outlined in the Annexes. (x) circumvent, disable or otherwise interfere with security-related features of the Software or features that impose limitations on the use of the Software; (xi) use any automated means to access the Software; (xii) use the Software without receiving all applicable consents for the collection and processing of personally identifiable information as required by applicable law; (xiii) use the Software without receiving all applicable consents for the collection and processing of personally identifiable information as required by applicable law; (xiv) integrate the Software into Customer’s hardware in any manner other than as directed by Company; (xv) transfer or export the Software to any country, or make available or use the Software in any manner, prohibited by applicable law (including, without limitation, export control laws, as applicable); (xvi) violate or perpetrate any login and/or password protections governing access to the Software; (xvii) permit third parties other than Authorized Users to use the Software; (xviii) access, store, distribute or transmit during the course of Customer’s use of the Software any malicious code (e.g., any malicious code that may be used in the course of Customer’s use of the Software); or (xix) access, store, distribute or transmit during the course of Customer’s use of the Software any malicious code (e.g., computer viruses, Trojan horses, worms, malware or other computer instructions, devices or techniques that erase data or programming, infect, interrupt, damage, disable or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material; and/or (xx) use the Software in any other unlawful manner.

7. USAGE LIMITS.

Certain usage limits (e.g., number of assessments, third parties, users, resources consumed, etc.) may be specified in the Order Form, as well as in the Documentation referenced therein. Before the usage limit is reached, the Company may, but is not obliged to, inform the Customer of this circumstance so that the Customer may request to extend the contracted Services. If Company becomes aware that the Customer’s use of the Service exceeds the usage limits, the Customer shall immediately pay for such excess in accordance with Company’s then current rates. Unpaid fees shall bear interest for late payment as set forth in the „Remuneration and Payment“ clause. The foregoing shall not prevent the Company from suspending or interrupting the Customer’s access to the Platform, Service or Software, without prior notice, when there is or has indications of excess over the limits of use, and the Customer does not comply with the obligations set out in this Agreement (e.g., payment of the amounts corresponding to this excess use). Likewise, the Company reserves the right to terminate this Agreement, not to refund any prepaid amounts, to request payment for the Services provided up to the time of termination and to claim damages caused by such overuse. The Company expressly reserves the right to perform audits, by itself or through third parties, as well as routine checks of transactions made by the Customer through the Agnostic Intelligence Platform or Service. In the event of any deviation from the Customer’s contract (e.g., sending monetary transactions as non-monetary), the Company will invoice the Customer for the effective use made and may choose to apply, at its option, a penalty of 10% of the amount of the deviation, in addition to the cost of the audit.

8. PROJECT EXECUTION.

Company shall carry out the implementation (set-up) of the Agnostic Intelligence Platform within the timeframe determined in the Order Form in accordance with the implementation schedule. In the event that nothing is specified in the Order Form, it shall be understood that the implementation period for the Agnostic Intelligence Platform is one (1) month. Company will begin invoicing the amounts corresponding to the Agnostic Intelligence Platform as agreed between the parties according to the calendar project.

9. MAINTENANCE AND SUPPORT SERVICES.

Within the Services included in the Platform license, the Company will provide the Customer with the 8×5 Maintenance Service with respect to the Platform, as further defined in Annex A. This 8×5 Maintenance Service comprises all those preventive, corrective and evolutive maintenance operations necessary for the proper functioning of the Platform, in accordance with its technical specifications, see Annex A. Consequently, the Company may make available to the Customer any changes, modifications, adaptations, new versions, or improvements made to the Platform.

10. CUSTOMER DATA. ANALYTICAL INFORMATION.

The use of the Platform and the provision of the Services require the Company to monitor, analyse and process certain Customer data which may include Customer Confidential Information (“Customer Data”). The Customer may upload to the Platform, transmit or otherwise make Customer Data accessible to the Company. The Customer agrees that the Company may collect, monitor, store, analyse, process, and use Customer Data, on Customer’s behalf, for the purpose of providing the Services. The Customer has full control over the Customer Data, including by viewing or correcting it. The Customer is responsible for the decisions they make during the validation phase (e.g., specifying the match level required for each section of the transaction). Without limiting the foregoing, the Company is granted a non-revocable, non-exclusive, transferable, sub-licensable, royalty-free license to use the Customer Data for the provision of the Services. In this regard, Company may collect and otherwise use information derived from the use of the Platform and Services (i.e., non-identifying, aggregate and analytical information) (collectively, “Analytical Information”), for the purpose of providing and improving Company’s Platform, Software and Services, for innovation and development purposes, and for any other legitimate business purpose. The Company is and shall remain the sole owner of all intellectual and other similar property rights in the Analytical Information. For such purposes, the Customer agrees to report one hundred percent (100%) of all transactions made or any other uses of the Platform. If the Customer fails to label data and/or provide hundred percent (100%) of the data related to the transactions, the Company cannot guarantee the quality of the model and/or the correct provision of the Services. In any case, the Company shall not be liable for the quality or any inaccuracies in machine learning models.

11. REPRESENTATIONS AND WARRANTIES.

The Customer represents that: (i) the person entering into this Agreement on behalf of the Customer has sufficient authority and power to represent Company (ii) will use the Platform in accordance with any applicable laws, including, without limitation, data protection laws; (iii) has obtained all necessary approvals, consents, authorizations, permissions or licenses for the use, monitoring, processing, analysis, storage and transfer of Customer Data by (or on behalf of) the Company for the purpose of providing the Services; (iv) has obtained all applicable governmental permits or certifications necessary for the use of Customer Data by Company.

Notwithstanding the foregoing, the Customer is and shall always remain solely responsible for (a) Company’s use of Customer Data in accordance with and for the purposes of this Agreement; (b) the backup of Customer Data or any other data on Customer’s systems. The Customer releases the Company from all liability in connection with the use of Customer Data and any other obligation imposed to the Company under the applicable law.

12. OWNERSHIP.

The Platform is not for sale and is and shall remain the exclusive property of the Company. Any right, title, and interest, including Intellectual Property Rights evidenced by or embodied in, attached to, connected and/or related to the Platform. Software and/or the Services and any and all derivative works, enhancements, improvements, extensions and updates are and shall remain the exclusive property of the Company or its licensors. This Agreement does not convey to the Customer any rights related to the Platform or Software, but only, as noted above, a revocable, limited license to use the Platform in accordance with the terms of this Agreement. Nothing herein shall constitute a waiver of the Company’s Intellectual Property Rights under any law. „Intellectual Property Rights“ means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, extensions, renewals and re-examinations of any of the foregoing, all of which are registered or unregistered or capable of being registered; (ii) trade secrets and any other confidential or proprietary or useful information having independent value, and all know-how, in each case whether or not reduced to writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, registered or unregistered; (iv) all trademarks, signs, logos, whether registered or unregistered; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, databases, algorithms, formulas and processes; and (vii) all other Intellectual Property Rights, and all rights pertaining to the foregoing throughout the world. If the Customer contacts the Company providing feedback (e.g., questions, comments, suggestions or the like) regarding the Services and/or the Software (collectively, „Feedback“), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the Software or other current or future products or services of Company (without Customer’s approval and without additional compensation to Customer).

13. THIRD-PARTY COMPONENTS.

The Platform and Software is developed and owned by the Company and/or its licensors, and may use or include third party software, files, platforms, components and, ultimately, services that are subject to their own terms and conditions. A list of third-party components whose licenses require certain notification is contained in the Platform, Software or its Documentation, which may be updated from time to time („Third-Party Services“). The Customer’s right to use such Third-Party Services as part of the Platform in connection therewith is subject to the applicable acknowledgements and license terms attached to, contained in or related to such Third-Party Components. In the event of any conflict between the license terms of such Third-Party Services and this Agreement, the license terms of the Third-Party Services with respect to the related Third-Party Services shall prevail. Such Third-Party Services are provided „AS IS“; without warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. The Customer hereby accepts such terms and conditions associated with the Third-Party Services.

14. CONFIDENTIALITY.

Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or medium, including (without limitation) trade secrets and other information relating to the other Party’s products, software, technology, data, know-how or business, whether written or oral (the „Confidential Information“). Each Party shall take reasonable measures, at least at the same level of protection as it applies to protect its own Confidential Information but in no event less than market standards, to protect the Confidential Information of the other Party from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted by this Agreement or applicable law. For the avoidance of doubt, a receiving Party may disclose the Confidential Information of the other Party to its officers, employees, service providers or consultants only in case of legal obligation or in a reasonable, justified, and limited manner for the performance of this Agreement, and provided that they are subject to non-disclosure obligations similar to those of this Agreement. Any right, title, and interest in and to the Confidential Information is and shall remain the sole and exclusive property of the disclosing Party.

15. DATA PROTECTION AND CYBERSECURITY.

The parties are informed that the personal data may be processed by the other party in the exercise of its activity and for the purpose of executing the Contract and the relations deriving from it, the basis of the processing being the fulfilment of the contractual relationship, the data being kept for the entire time during which it subsists and, even after, until the eventual liabilities deriving from it expire. The interested parties may write to the respective addresses indicated in the heading of these GTC or to the contact address provided to exercise their rights of access, rectification, deletion, limitation, opposition, and portability. Likewise, the Parties may file a complaint before the Competent Authority when they consider that their rights have been violated. If the Company, on the occasion of the provision of the Services, has access to personal data under the responsibility of the Customer, the provisions of Annex B of the Data Processing Order shall apply. The Company declares to have implemented reasonable technical and organizational measures to protect to the maximum extent possible the Customer’s information and systems in accordance with the terms set forth in Annex C of Cybersecurity.

16. MARKETING AND PROMOTIONAL USAGE.

The Customer hereby grants the Company the right to identify the Customer as a valued user of the Platform, Software and/or Services.

This includes, but is not limited to, the usage of the Customer’s trademark and/or logo in the following manners:

Sales Presentations: The Company may use the Customer’s trademark and/or logo in sales presentations to showcase the partnership between the Customer and the Company, emphasizing the positive experiences and benefits derived from using the Software and/or Services.

Promotional/Marketing Materials: The Customer that the Company may feature the Customer’s trademark and/or logo in various promotional and marketing materials, including brochures, pamphlets, and other collateral, to highlight the success and satisfaction associated with the Software and/or Services.

Press Releases: The Company is authorized to include the Customer’s trademark and/or logo in press releases, making reference to the collaborative efforts and positive outcomes achieved through the use of the Software and/or Services.

Customer Profile: For promotional purposes, the Company may develop a concise Customer profile that includes the Customer’s trademark and/or logo. This profile may be featured on the Company’s website and/or social media accounts, showcasing the Customer’s experience as a testament to the quality and effectiveness of the Software and/or Services.

17. MODIFICATIONS.

The Company may change the presentation, form and design of the Platform and/or Software, as well as the availability of certain content, functions or features included therein, from time to time without prior notice to the Customer; however, the Company will notify the Customer of any material changes in the functionality of the Platform and/or Software. The Customer hereby agrees and acknowledges that the Company shall not be liable for any errors or malfunctions that may occur in connection with the changes of the Platform and/or Software.

18. LIABILITY INSURANCE.

During the term of these GTC, Agnostic Intelligence undertakes to have a liability policy with a reasonable scope for the provision of its Services.

19. WARRANTIES.

The Company represents and warrants the operation of the Platform and/or Software under normal conditions of authorized use. As the Customer’s sole and exclusive remedy and Company’s sole liability for breach of this warranty, Company will repair the Platform and/or Software. The foregoing warranties shall not apply if the failure of the Platform and/or Software is due to or attributable to: (i) repair, maintenance or modification of the Platform and/or Software by anyone other than the Company or its authorized collaborators; (ii) accident, neglect, abuse or misuse of the Platform and/or Software ; (iii) use of the Platform and/or Software other than in accordance with the Documentation and/or the Company’s instructions; (iv) combination of the Platform and/or Software with equipment or software not authorized or provided by the Company or otherwise approved by the Company in the Documentation; (v) any downtime, defect or error caused by or attributable to any third party software, technology or system beyond the control of the Company; (vi) during any evaluation period or beta period specified in the Order Form; (vii) failure by the Customer to provide access to the Platform and/or Software to Agnostic Intelligence; and/or (viii) failure by the Customer to maintain the relevant required hardware, infrastructure, resources, and services to enable the Platform and/or Software to function as established in the Agreement and the Documentation.

EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGNOSTIC INTELLIGENCE PLATFORM, SOFTWARE AND SERVICES ARE PROVIDED „AS IS“. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, THE COMPANY DOES NOT WARRANT THAT THE PLATFORM, SOFTWARE AND/OR SERVICES WILL MEET THE CUSTOMER’S NEEDS OR THAT THE OPERATION OF THE PLATFORM, SOFTWARE AND SERVICES WILL BE SECURE AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER LIMITATIONS OF THE PLATFORM, SOFTWARE. USE OF THE PLATFORM, SOFTWARE AND SERVICES HEREUNDER IS AT CUSTOMER’S SOLE RISK AND, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OF ANY INFORMATION DISPLAYED IN THE SOFTWARE AND/OR SERVICES. WITHOUT LIMITING THE FOREGOING, THE COMPANY SHALL NOT BE LIABLE FOR (I) ANY CONTENT (INCLUDING THE ACCURACY OF CUSTOMER DATA) UPLOADED BY OR ON BEHALF OF THE CUSTOMER TO THE PLATFORM AND/OR SOFTWARE; (II) ANY DAMAGES SUFFERED BY THE CUSTOMER AND/OR ANY OTHER PERSON ARISING OUT OF, RELATING TO AND/OR IN CONNECTION WITH THE USE OF SUCH UPLOADED DATA IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

20. LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS OR GOODWILL AND LOSS OF OR DAMAGE TO DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING OUT OF, RELATING TO, OR CONNECTED WITH, ANY USE OF OR INABILITY TO USE THE PLATFORM, SOFTWARE AND/OR THE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND/OR RESELLERS FOR ALL DAMAGES OR LOSSES OF ANY KIND ARISING HEREUNDER OR IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES SHALL IN NO EVENT EXCEED THE TOTAL AGGREGATE LIABILITY OF THE COMPANY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND/OR RESELLERS FOR ALL DAMAGES OR LOSSES OF ANY KIND ARISING HEREUNDER OR IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES, IN THE AGGREGATE, THE TOTAL AMOUNTS OF SERVICE FEES ACTUALLY PAID TO THE COMPANY UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.

21. INDEMNITY OF THE COMPANY.

The Company acknowledges and agrees to defend, at its own expense, any third party action or suit brought against the Customer alleging that the Platform or Software infringes intellectual property rights of any third party („IP Infringement Claim“), and the Company will pay any damages awarded on final judgment against the Customer attributable to such claim, suit or proceeding; provided that (i) the Customer promptly notifies the Company in writing of such claim; and (ii) the Customer gives the Company control to handle the defence or settlement of such claim, suit or proceeding and provides the Company with all reasonable information and assistance, at the Company’s expense. The Company shall not be bound by any settlement reached by the Customer without the prior written consent of the Company. If the Platform or Software becomes, or in the opinion of the Company is likely to become, the subject of an IP Infringement Claim, the Company may, at its sole discretion and expense: (a) procure for Customer the right to continue using the Platform or Software; (b) replace or modify the Platform or Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be met despite Company’s reasonable efforts, then Company may cease providing the Platform or Software (and related Services) and provide Customer with a pro rata refund based on the remainder of the applicable Subscription or Software license term. Notwithstanding the foregoing, the Company shall have no liability for any IP Infringement Claim resulting from or based upon: (i) modifications to the Platform or Software made by any party other than Company or its designee; (ii) the Customer’s failure to use updated or modified versions or patches provided by Company specifically to prevent such infringement; or (iii) the combination or use of the Platform or Software with equipment, devices or software not supplied or authorized by Company, or not in accordance with Company’s instructions. THE FOREGOING TERMS SET FORTH THE SOLE AND EXCLUSIVE LIABILITY OF THE COMPANY AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

22. INDEMNITY OF THE CUSTOMER.

The Customer agrees to defend, indemnify and hold harmless the Company, its officers, directors, employees, agents and resellers, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts and expenses (including, without limitation, attorneys‘ fees) arising out of: (i) the Customer’s unauthorized use of the Platform, Software and/or Services; (ii) the Customer’s breach of its warranties, obligations and undertakings under this Agreement; (iii) a third party claim, suit or proceeding alleging that the use of Customer Data within the scope of this Agreement infringes, or may infringe, any privacy rights of a third party (including, without limitation, the Company’s service providers and/or job applicants); (iv) a claim, suit or proceeding by a third party alleging that the use of Customer Data within the scope of this Agreement infringes, or may infringe, any privacy rights of a third party (including, without limitation, the Company’s service providers and/or job applicants); (iv) a third-party claim, suit or proceeding alleging that Company is the employer or job provider of any service provider or contractor engaged by Customer as a result of or in connection with the Software and/or Services.

23. TERMINATION.

Either Party may terminate this Agreement with immediate effect if the other Party is in material breach of this Agreement and such breach remains uncured (to the extent the breach can be cured) thirty (30) days after receipt of written notice thereof. Upon termination or expiration of this Agreement (i) Company shall cease to provide the Services hereunder, the licenses granted to Customer under this Agreement shall expire and Customer shall cease to use the Platform, Software and/or Services; (ii) Customer shall immediately and permanently delete all copies of the Documentation in the possession or under the control of Customer or any of its representatives; (iii) the receiving Party shall promptly return and/or permanently delete (as directed by the disclosing Party) the Confidential Information, except for data that the receiving Party is required to retain by law, regulation or governmental order; (iv) any investment, cost or expense incurred by the Company for the provision of the Services that has not been recovered or amortized shall be passed on to the Customer in a justified and reasonable manner; and (v) any sums paid by the Customer up to the date of termination shall be non-refundable, and the Customer shall not be relieved of its obligation to satisfy in full all sums owed by the Customer to the Company under this Agreement up to the date of termination or expiration of this Agreement, which sums shall be immediately due and payable on the date of termination or expiration of the Agreement.

24. MISCELLANEOUS.

This Agreement contains the entire agreement relating to the subject matter hereof and may only be modified by an agreement in writing signed by both Parties. The failure of either Party to enforce any of the rights granted hereunder or to take action against the other Party in the event of a breach hereunder shall not be deemed a waiver by such Party as to the subsequent enforcement of subsequent rights or actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement does not create, nor shall it be construed to create any relationship, partnership, agency, franchise or joint venture between the Parties. The Company shall not be liable for any delay or failure to provide the Services arising from circumstances or causes beyond the Company’s reasonable control (i.e., force majeure events). This Agreement may be executed in electronic counterparts, each of which, when executed and delivered, shall be deemed an original and all counterparts, taken together, shall constitute one and the same instrument.

25. ASSIGNMENT AND SUBCONTRACTING.

The Customer may not assign its position in the Contract, except with the prior express written authorization of the Company. The Company may assign the Contract, in whole or in part, to any third party, with express notification to the Customer being sufficient. The Customer authorizes the Company to subcontract part or all of the Services in general, with the Customer’s notification being sufficient for this purpose. The Company shall require from the subcontractor identical or analogous obligations, guarantees and responsibilities to those set forth in this GTC.

26. NOTIFICATIONS.

All notices under this Agreement shall be in writing, so as to provide a record of the sending and receipt of the communications. For this purpose, the Customer may contact the Company via the e-mail address provided on the Order Form. For its part, the Company will contact the Customer through the e-mail address provided by the Customer to access its Account.

27. AUDIT.

When required by the authorities to Agnostic Intelligence or by applicable law, Customer shall provide justified and reasonable access to information relating to the provision of the Services to verify compliance with the Agreement, the proper provision of the Services and the compliance with the information requirements requested by the competent authorities. Agnostic Intelligence shall notify Customer of its interest in conducting the audit sufficiently in advance, unless such notification is not possible for legal reasons or by imposition of the competent authority. Customer shall cooperate with Agnostic Intelligence to comply with the audit right by providing all information that is justifiably and reasonably required. This audit right shall extend during the term of the GTCs and even after until the expiration for liabilities arising from obligations under applicable law.

28. APPLICABLE LAW AND JURISDICTION.

Agnostic Intelligence and the Customer, expressly waiving any other jurisdiction that may apply, submit to Swiss law and the Courts of the city of Zug (Switzerland).