General Terms and Conditions of Business

November 19, 2014

A Introduction

1. Trading as “riARCHIVE”, Reference Image AG (RIAG) develops and markets a service called “Software-as-a-Service” (“SaaS”), which clients use to store high-resolution enhanced image files. With riARCHIVE, clients can display and exchange image files with various end-users in different colour-spaces, resolutions and degrees of detail. Their functions, e.g. zoom function and reproduction of ancillary image files, can be integrated into clients’ online applications and websites via a programming interface (“API” / Application Programming Interface).
2. RIAG operates riARCHIVE on web servers which are owned by third parties; riARCHIVE is used by clients and their own users via the internet.
3. riARCHIVE is not an operation-critical service for clients. RIAG provides its services in accordance with the ‘best efforts’ principle and gives no assurances concerning the availability of the service. However, RIAG will endeavour to ensure that riARCHIVE operates as smoothly and free of disruptions as possible.
4. RIAG undertakes to continually develop riARCHIVE at its own expense (“upgrades”). In doing so, feedback from users, bug-fixes and development requests will be taken into consideration if these are technically feasible and if RIAG considers them reasonable; new developments – including of a technical, security-related and ergonomic nature – will also be incorporated. With the exception of additional modules, clients will be provided with upgrades at no additional cost: these are included in the cost of the user-fee in accordance with Section C.

B Use of riARCHIVE

5. Subject to payment of the user-fee, clients will be authorised to use riARCHIVE as part of the service packages selected. The service packages are described in the price-list.
6. When integrating riARCHIVE into their own websites and as part of the thus functioning functions of riARCHIVE, clients may enable third parties to access riARCHIVE but not grant them any further rights of use to riARCHIVE or assign acquired rights of use.

C User-Fees

7. The user-fees for riARCHIVE are calculated on the service packages selected and are to be paid by clients in advance at regular intervals.

D Additional Services from RIAG

8. Additional services from RIAG must be mutually agreed and may cover training, support in integrating the API, during rollout, client-specific adjustments, reporting obligations or technical support in integrating riARCHIVE into clients’ systems environment.
9. Additional services from RIAG will be agreed separately and are to be paid for separately from the user-fee for riARCHIVE.
10. The development of special functions will be offered to clients of RIAG on a preferential basis; these are to be paid for by them. On issuing a development order, clients assign all rights to such functions to RIAG. If these functions are then provided to other clients or included in the basic functions of riARCHIVE, the parties will agree an appropriate refund of the development costs paid previously by the clients.

E Supply and Availability of the riARCHIVE Service

11. riARCHIVE services are operated by RIAG on RIAG’s own rented server platforms. RIAG will ensure that the riARCHIVE services are operated on scalable platforms in secure external computing centres in Switzerland or in the EU so that sufficient internet band-width and data-processing and storage capacity are available in order to enable a response-time which permits productive use of the service.
12. RIAG will also ensure that its servers can be accessed via technically up-to-date browsers and that its network security infrastructure fulfils the requirements of business clients for SaaS services used from these clients’ protected business networks.
13. As riARCHIVE is not an operation-critical application, RIAG will waive agreeing service-level agreements (SLAs). RIAG will keep availability-levels of the riARCHIVE service as high as possible and will plan foreseeable interruptions, e.g. maintenance windows, for times when the workload is low. Foreseeable downtimes will also be notified to clients by email.
14. During office hours RIAG will be available to clients to the usual extent via email for support services. RIAG will invoice clients for support over and above this on a monthly basis.

F Legal Relationships to the Data

15. Clients will bear full responsibility for all copyright matters concerning the image data stored in riARCHIVE. They will also be responsible for ensuring that the data stored in riARCHIVE breach no other legal provisions.
16. Should RIAG become aware of third-party claims or other breaches of the law, RIAG will both inform its clients and refer these claims or breaches to the client directly. In this case, the client will keep RIAG entirely free of claims by third parties and of any costs of legal defence and representation incurred by RIAG. In such cases, RIAG will be free to take those technical measures it considers appropriate after consulting clients beforehand.

G Availability of Data and Confidentiality

17. RIAG will ensure that the clients’ data at the computing centre are regularly backed up.
18. Over and above this, RIAG will give no guarantee of the security of the clients’ data. The clients themselves will be responsible for providing adequate security in the eventuality of data-loss at RIAG.
19. The data belonging to the clients may neither used by RIAG nor made available to any other clients of RIAG.
20. Subject to provisions of the law and official regulations and instructions requiring disclosure, both parties will be obliged to maintain confidentiality concerning all business matters of the other party.
21. All information, procedures and data which are not publicly accessible or which obviously require protection will be deemed confidential. Data, information or similar which are already public knowledge or which must be published further to a mandatory legal requirement or a final decision by a responsible public or court authority are exempted from confidentiality obligations. The onus will be on the party obliged to protect data to prove that it has done so.
22. When accessing riARCHIVE, RIAG and its clients will, in accordance with the provisions of the German Data Protection Act, undertake to treat in strict confidence and with the greatest care and discretion all information and all other information of which they become aware about the party concerned and all of RIAG’s data, documentation, information, ideas, all know-how and all results obtained as part of the cooperative venture. Such information may not be made accessible to third parties in any way, either directly or indirectly or used or further developed for personal purposes. In particular, the parties undertake to preserve manufacturing and business secrets; in this context, all results gained in the parties’ cooperative venture will also be considered business secrets.
23. In addition, the client is required
1. to use riARCHIVE only for legally permissible and morally acceptable activities;
2. to prevent as far as possible access to the riARCHIVE service by unauthorised persons;
3. when using the administrator’s password – if assigned – to follow the adequate security procedures, to strictly guarantee the confidentiality of this password and to report any misuse or loss thereof without delay;
4. to report security breaches and systems errors without delay. In particular, no independent tests for security breaches may be carried out;
5. to report any breaches of these security regulations by third persons to RIAG without delay.
24. The confidentiality requirements will continue to remain in force without restriction after this agreement has ended.
25. In accordance with this agreement, both parties will be entitled to communicate this cooperative venture to external parties. However, the parties will agree on each communication with the other party to this agreement. The use of trademarks of the other party (logos, lettering etc.) may only be used with the agreement of this other party. Contractual details, in particular concerning costs, details on users (personal details, figures, etc.), immaterial rights, knowledge and statements concerning transmitted solutions, questions asked or user and profile information will be kept strictly confidential in all cases.

H Usage Data

26. Subject to data protection provisions, the parties agree that they will disclose to each other those data concerning use and non-use of the riARCHIVE service required by both parties in order to improve and expand their respective services operationally and strategically.
27. The exchange of user data will be determined by mutual agreement and will be continually adjusted to the developing requirements of the parties.
28. Where possible and reasonable, usage data will be anonymised or exchanged in aggregate form.

I Invoicing

29. User fees will be invoiced annually and will be due from the date of the invoice. The payment period will be 30 days but may be reduced by RIAG in cases of repeated arrears of payment on the part of the client.
30. In cases of arrears of payment, interest on arrears will apply and will be payable from the date of the invoice. In enforcing payment of due invoices, RIAG will also be authorised to claim its own expenses and external expenses connected with enforcing payment (legal expenses, procedural costs) as part of the basic claim.
31. Additional services from RIAG are to be paid for independent of the use fees and support costs.
32. Neither party may offset costs for claims that have not been recognised by the other party.
33. After the second unsuccessful reminder, RIAG will be entitled to suspend use of riARCHIVE to the entire amount of the invoice or part thereof without this cancelling the entire corresponding claim.

J Liability and Transferability

34. The parties will restrict their mutual liability to gross negligence and intent and will exclude liability for indirect damage and consequential damage to the extent permitted by law.
35. Subject to the explicit exceptions in these T&Cs, the parties undertake not to transfer the rights and obligations granted to them in these T&Cs to or onto third parties. However, as part of restructuring measures or similar, the parties will be authorised to transfer this agreement as a whole to another legal entity as long as this legal entity is under the commercial and legal control of the transferring party and the other party suffers no disadvantages as a result of this transfer.

K Duty of Loyalty and Obligation to Provide Information

36. The parties will support each other in developing the business regulated in this agreement by means of the open and active exchange of information. The parties will work together in good faith and refrain from doing anything that might endanger the success of their joint business efforts or that conflicts with the other party’s interests or affect its interests.
37. The parties undertake to immediately inform the other parties on their own initiative about substantial changes to their ownership structure or in their financial and business relationships which may potentially or in fact have major effects on the relationship between the parties and on the business of the other party.

L Right of Termination

38. The parties will be entitled to terminate this agreement for major reasons in particular, if
1. RIAG cannot fulfil the assured characteristics of riARCHIVE over an uninterrupted period of two weeks or a total of 20 calendar days in each calendar year;
2. the client fails within two months to fulfil a contractual obligation for reasons for which it is responsible in spite of being warned or if within this deadline period it fails to cease conduct that constitutes a breach of contract.

M Partial Invalidity

39. Should individual provisions of these T&Cs prove to be invalid, this will not prejudice the validity of the remainder of these provisions. The invalid provisions are to be replaced by legally permissible provisions which come as close as objectively and commercially possible to the invalid provisions. This provision will apply correspondingly to omissions in this agreement.

N Applicable Law, Place of Jurisdiction and Reservation of the Right to Enter into Mediation Proceedings

40. Instead of the conciliation proceedings, the parties will agree to mediation in accordance with Section 213 ff. of the Swiss Civil Procedure Regulations (ZPO). Should the parties not be able to reach agreement within 30 calendar days after a mediation application has been submitted by the claimant party, the mediator will be appointed by the Zurich Section of the Swiss Chamber for Commercial Mediation (SKWM). Reservation of the right to enter into mediation proceedings explicitly does not apply to procedures used exclusively to execute a claim recognised by the party owing the claim.
41. These T&Cs and all related claims by the parties to this agreement are governed solely by Swiss law. The sole place of jurisdiction is Zurich.