General Terms and Conditions for Software-as-a-Service (SaaS) and Self-Hosting

Frontify AG, Version: February 2016

1 Scope of Application

These General Terms and Conditions (“GTC”) govern the contractual framework conditions between Frontify AG (“Frontify”) and a contractual partner of Frontify (“Customer”) in connection with the provision of software for use as a package (self-hosted) and via the Internet (Software-as a-Service).

The Customer recognizes the respective valid version of Frontify's GTC as an integral part of all existing and/or future contractual arrangements between the Customer and Frontify in connection with the provision of software for use as a package and via the Internet. They shall also apply irrespective of whether they are or are not expressly referred to.

A detailed description of the services to be provided by Frontify arises from the Agreements, incl. Appendices (jointly referred to as “License Agreement”), concluded between Frontify and the Customer in the context of the provision of software.

These GTC supplement the License Agreement. In the event of inconsistencies between these GTC and the License Agreement, the provisions of the License Agreement shall prevail over the provisions of these GTC.

Any deviations and/or supplements to these GTC require the express written approval of Frontify for their validity, in particular in the context of the conclusion of a License Agreement between the Customer and Frontify. Such deviating agreements shall only apply to the License Agreement that contains the deviating agreement and shall not have any prejudicial effect for other License Agreements between the contractual parties.

Any General Terms and Conditions of the Customer are herewith expressly objected to. Their application to the contractual relationship between Frontify and the Customer is excluded.

2. Services provided by Frontify

2.1 Right of use

Frontify shall provide the software product named and described in the License Agreement (“Software”) to the Customer for use as a package (“Self-Hosted”) or via the Internet (“Service”). The Customer is not entitled to further rights associated with the Software, such as ownership, copyright, patent, trademark, or usage rights.

The Software shall be operated on computers of a computer center used by Frontify (Service) or on a computer center of the Customer (Self-Hosted). For the duration of this Agreement, the Customer is given the non-exclusive and non-transferable right to access the Software by means of a browser and an Internet connection and to use same for its own business purposes exclusively for the exercise of its commercial or independent professional activity. The Customer is responsible for the Internet connection between the Customer and the computer center and the hardware and software required for this purpose (e.g. PC, network connection, browser) (Software-as-a-Service). If the Customer uses the Self-Hosted variant, the Customer shall be responsible for the required additional hardware and software

The right of use is limited to the number of usage units booked by the Customer in accordance with the License Agreement. Any sub-licensing or further licensing of the Software is prohibited. The Customer has no right to a copy and thus also no right to a backup copy of the Software. All rights in the Software or the Service over and above the right of use defined pursuant to the License Agreement and these GTC remain fully with Frontify.

2.2 Installation

The Customer shall undertake the first-time installation of the Service (individual settings or import of data) itself and at its own costs. Frontify is not obligated to undertake any changes to the Service, in particular reprogramming according to the Customer’s requests. Corresponding services to be provided by Frontify shall be agreed to and paid for by the Customer separately.

For the first-time installation of the Software in the Self-Hosted variant, the corresponding services to be provided and the amount of the remuneration are found in the price list.

2.3 Operation

Frontify shall take appropriate measures to make it possible for the Customer to use the Service as interruption-free as possible. Frontify cannot guarantee availability of the Service at all times and absence of any other disruptions and interruptions to the functioning.

The Customer shall notify Frontify of any disruptions to the Service without delay and provide information regarding the details of the circumstances of the issue. Frontify shall remedy the disruption to the Service within an appropriate period of time. Frontify is entitled to circumvent the disruption to the Service by means of a workaround solution if the cause of the disruption itself is only to be remedied with inappropriate expense and the usability of the Service is not significantly negatively affected.

If the Customer uses the Self-Hosted variant of the Software, the Customer shall take full responsibility for the operation of the Software.

2.4 Support

In support of use of the Software as a Service or as a Self-Hosted variant, Frontify shall provide online support. The support shall not include: general know-how transfer, trainings, configuration implementation or customer-specific documentation or modification of the Software.

Support shall be carried out by email to Frontify shall provide the support services during working hours from Monday to Friday between 8.30 am and 5.00 pm. Legal holidays are excluded. Inquiries received outside of these support times shall be regarded as received on the following working day.

2.5 Changes to services

Frontify may modify the Software (Self-Hosted & Service, including its system requirements) for the purposes of adapting to technical or commercial market changes and for good cause. In particular, such shall be deemed to exist if the modification is required due to

a) a necessary adaptation to a new legal situation or case law;
b) changed technical framework conditions (new browser versions of technical standards);
c) protection of system security, or;
d) further development of the Software (disabling old functions that are largely replaced by new ones).

3 Involvement of third parties

Frontify is entitled to involve third parties for the purpose of meeting its contractual obligations. This shall, in particular, apply to hosting services.

Frontify shall not accept any liability for the services of third parties involved to the extent legally permissible.

4 Remuneration and payment terms

4.1 Fee structure

For the use of the Software during the contractual term, the Customer shall owe Frontify the license fees agreed to in the License Agreement. The remuneration may, in particular, comprise a one-off setup fee, a fixed monthly basic fee (e.g. for support, hosting and maintenance services) and a monthly usage fee depending on the number of usage units booked or used.

4.2 Due date of license fees

The total basic and usage fee shall be due for payment in advance upon commencement of the Agreement for the Basic Period (see Section 7.1) and thereafter upon commencement of each Extension Period (see Section 7.1) for the period of the extension. Any increase of the booked usage units (or change to a higher service package) is possible at any time. A reduction (or change to a lower service package) shall only be possible with effect as of the end of the Basic or an Extension Period or prior thereto with the agreement of Frontify.

The additional fees shall be invoiced on a pro rata basis in the event of an increase in the booked usage units within the Basic or Extension Period. The prices pursuant to Frontify’s price list in accordance with an order for the additional usage units shall apply to the additional usage units. The Customer is responsible for monitoring the number of usage units used during the Basic or Extension Period.

4.3 Invoicing

Frontify shall invoice the fees on commencement of the Agreement and then on commencement of each Extension Period in advance. Frontify’s invoices shall be due for payment with a payment term of 30 days, strictly net. The Customer shall be in default after expiry of this payment period without requiring a warning. The default interest shall be 5% p.a.

4.4 Net prices

All prices exclude the respectively applicable statutory sales tax (Switzerland: value added tax).

4.5 Measures in the event of payment default

If the Customer defaults on the payment of fees, after relevant warning by email or letter, Frontify is entitled to block access to the Service or extraordinarily terminate the contractual relationship. The Customer shall have no access to the data saved by it in the Service during the block. In the event of a termination, Section 7.2 shall apply.

If the Customer uses the Self-Hosted variant, after relevant warning by email or letter, Frontify is entitled to extraordinarily terminate the contractual relationship. In this case, the Customer is obligated to remove the Software on its servers no later than the termination date.

5 Customer data, data protection and references

5.1 Customer data

The Customer is exclusively entitled to the data input, generated thereby and allocatable to the Customer in the context of the use of the Software (“Customer Data”). Frontify shall treat the Customer Data confidentiality.

5.2 Data protection

The Customer is aware that the use and processing of personal data within the meaning of the applicable domestic and/or foreign data protection legislation, in particular the Swiss Data Protection Act (Schweizerischen Datenschutzgesetzes (“DSG”)) may require the prior consent of the affected persons and/or the registration of the relevant database with a domestic or foreign authority, in particular with the Federal Data Protection and Information Commissioner (FDPIC).

If the Customer Data are personal data, Frontify shall process the Customer Data solely on behalf of and according to the instructions of the Customer and exclusively for the provision of the Software. The Customer remains responsible for the lawfulness of the collection, processing and use of the Customer Data in accordance with the applicable legal regulations, in particular pursuant to DSG.

5.3 References

In the context of its marketing activities and in the preparation of its offers for projects of other customers, Frontify is entitled to refer to the projects realized by it for the Customer and to document same, subject to the justified confidentiality interests of the customer.

In particular, Frontify is entitled to publish the orders placed with same in the context of marketing activities, in particular refer to the business relationship on Frontify’s website with the name and corporate logo of the Customer.

5.4 Release

The Customer shall release Frontify and involved third parties of all third-party claims that may arise from

a) unlawful use of the Software by the Customer and/or, with the consent of the Customer, by third parties,
b) disputes arising from data protection laws, copyright laws or other legal disputes associated with the use of the Software by the Customer.

In the assertion of relevant claims, the Customer is obligated to notify Frontify thereof in writing without delay. In this case, Frontify is entitled to block the Service for the Customer without delay and without providing a grace period, respectively prohibit the further use of a Self-Hosted variant in writing by email or letter. Any compensation claim asserted by the Customer based on the blocking of the Service is excluded.

6 Liability

Frontify shall not accept any liability whatsoever to the extent legally permissible, in particular for

a) Damages,

  • arising from the Customer’s violation of the contractual obligations;
  • caused by Frontify’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 realized or third-party claims.

7 Term and termination

7.1 Term

The License Agreement is concluded for a particular term (e.g. twelve, eighteen or twenty four months) depending on the Customer’s order (“Basic Period”) and shall thereafter extend automatically by the same period (“Extension Period”) if the Agreement is not ordinarily or extraordinarily terminated pursuant to Section 7.2 below by one of the contractual parties.

The provisions of Section 7.2 shall apply as aforesaid with respect to a reduction in usage units during the term.

7.2 Termination

a) Ordinary termination

The Agreement may be terminated by any of the contractual parties by giving 3 months’ notice at the end of the Basic Period or an Extension Period. Notice shall be given in writing.

b) Extraordinary termination

Frontify may extraordinarily terminate the License Agreement for good cause at any time and with immediate effect. Good cause entitling Frontify to extraordinary termination shall include, 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 Frontify
  • if the Customer defaults on the payment of fees;
  • if insolvency proceedings are instituted against the Customer.

7.3 Customer’s data at the end of the Agreement

At the end of the Agreement and upon written request by the Customer, Frontify shall provide a copy of the Customer’s data saved on its servers as of the date of the end of the Agreement on a customary data carrier or by electronic transfer and in a customary format.

At the end of the 30 days from the end of the Agreement or upon request by the Customer already prior to this period, Frontify shall delete the data of the Customer saved on its servers finally and in full. This action shall be subject to mandatory legal retention obligations.

Frontify is not obligated to surrender its data to the Customer in deviation to these provisions (in particular relating to time, format or migration). Any deviating surrender of the Customer’s data shall require the prior written consent of Frontify as well as separate remuneration by the Customer.

For the use of Frontify in the “Self-Hosted” variant, the responsibility for the preparation of a copy of the saved data is with the Customer.

8 Confidentiality

The contractual partners obligate themselves and their employees and involved support persons reciprocally to maintain the confidentiality of all documents and information not generally known that relate to the business sphere of the other contractual party and, which become accessible in the preparations for and execution of the License Agreement.

The confidentiality obligation shall continue to endure even after termination of the contractual relationship to the extent there is justified interest therein.

9 Final provisions

9.1 Amendments to these GTC

Frontify shall notify the Customer of any amendments to these GTC. Any amendments to the GTC shall enter into force for the contractual relationship between Frontify and the Customer insofar as the Customer does not object to the amended GTC within a period of 10 days in writing. The Customer shall be expressly notified of the meaning of silence in the notification regarding amendments to the GTC.

9.2 Offsetting and assignment of claims

The offsetting of any claims of Frontify against counterclaims of the Customer shall require the prior written consent of Frontify.

The Customer is not entitled to assign any claims from the contractual relationship with Frontify to third parties, in whole or in part, including not to any Group or subsidiary companies.

9.3 Place of performance

The place of performance shall be the registered offices of Frontify.

9.4 Severability clause

Should individual provisions of these GTC be invalid or incomplete or should performance be impossible, this shall not negatively affect the validity of the remaining provisions of these GTC. Invalid provisions shall be replaced by an admissible, valid provision that is as close as possible to the content of the original in terms of its intent.

10 Applicable law and place of jurisdiction

The contractual relationship between Frontify and the Customer, including the License Agreement and its Appendices, are subject to Swiss law, under exclusion of any national or international treaties or agreements legally valid at the time of entry into force or a dispute (e.g. United Nations Convention on Contracts for the International Sale of Goods (CISG) or the Hague Convention on Purchases).

In the event of any differences of opinion in connection with the License Agreement or its Appendices, the contractual parties undertake to attempt to agree to a mutually agreed regulation in good faith. If, despite the efforts of the contractual parties, no agreement can be made by amicable means, the place of jurisdiction for all disputes, differences of opinion or claims arising from or in connection with the contractual relationship between Frontify and the Customer, including the License Agreement and its Appendices, including their validity, invalidity, violation or dissolution, shall be the registered offices of Frontify. Irrespective thereof, Frontify is entitled to sue the Customer at its general place of jurisdiction.

In the event of discrepancies between the English and German version of these General Terms and Conditions, the German version prevails.