MachIQ Software Services AG, May 2020
General Terms and Conditions
Version: May 2020
1. Scope of Application
These General Terms and Conditions (“GTC”) govern the contractual framework conditions between MachIQ Software Services AG (“MachIQ”) and a contractual partner of MachIQ (“Customer”) in connection with the provision of APM software for use via the Internet (Software-as a-Service).
The GTC may be updated by us from time to time. You can review the most current version of the GTC at any time at: https://www.machiq.com/apm-general-terms-and-conditions/.
The Customer recognizes the respective valid version of MachIQ’s GTC as an integral part of all existing and/or future contractual arrangements between the Customer and MachIQ in connection with the provision of software for use 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 MachIQ arises from the respective APM Plan (“User Plan”).
Any deviations and/or supplements to these GTC require the express written approval of MachIQ for their validity. Such deviating agreements shall only apply to the agreement that contains the deviating agreement and shall not have any prejudicial effect for other 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 MachIQ and the Customer is excluded.
2. Services Provided by MachIQ
2.1 Right of use
MachIQ shall provide the software product named and described in the User Plan (“Software”) to the Customer for use 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 servers of a data center used by MachIQ. 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).
MachIQ only offers accounts on behalf of business entities and does not offer personal accounts on behalf of individuals. You represent and agree that (i) you are entering into this agreement on behalf of the company or other legal entity (collectively, the “Business User”) that you may specify, (ii) that your account is for, and held in the name of, the Business User (and not any individual), (iii) such Business User has full legal capacity and is in good standing in the jurisdiction in which it is formed, (iv) you have full legal capacity and authority to bind yourself individually and such Business User to these GTC, and (iv) the terms “you” or “your,” as used herein shall, unless the context otherwise reasonably requires, refer to both (A) such Business User, and (B) the individual or individuals (the “Individual User(s)”) accessing or using the Service as authorized or invited by such Business User; provided, however, that each such Individual User(s) shall remain vicariously liable and be required to comply with these GTC even though the account may be held in the name of the Business User. If you do not meet the requirements above, or if you do not agree with these terms and conditions, you may not use the Service.
MachIQ reserves its right to refuse any subscription to the Service. Subscription to the APM Free plan is available only to process manufacturing companies.
The right of use is limited to the number of usage units and features booked by the Customer in accordance with the respective User Plan. 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 in these GTC remain fully with MachIQ.
You may not access the Service for purposes of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without MachIQ’s prior written consent. You may not access the Service if you are a direct competitor of MachIQ, except with MachIQ’s prior written consent.
You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify MachIQ of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. MachIQ cannot and will not be liable for any loss or damage arising from your failure to comply with the GTC, including, without limitation, this section.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt 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 create derivative works based on the Services or any Software (except to the extent expressly permitted by MachIQ or authorized within the Services); or remove any proprietary notices or labels.
Customer will not use the Service to access, store, distribute or transmit any viruses, or any material during the course of its use that:
Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
Facilitates illegal activity;
Depicts sexually explicit images;
Promotes unlawful violence;
Is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
In a manner that is otherwise illegal or causes damage or injury to any person or property;
And MachIQ reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause or in case of a reasonable suspicion of a breach.
MachIQ shall take appropriate measures to make it possible for the Customer to use the Service as interruption-free as possible. MachIQ cannot guarantee availability of the Service at all times and absence of any other disruptions and interruptions to the functioning.
The Customer shall notify MachIQ of any disruptions to the Service without delay and provide information regarding the details of the circumstances of the issue. MachIQ shall remedy the disruption to the Service within an appropriate period of time. MachIQ 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.
In support of use of the Software as a Service, MachIQ 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 support@MachIQ.com. MachIQ shall provide the support services during working hours from Monday to Friday between 8.30 am and 5.00 pm CET. Legal holidays in the Canton of Basel Stadt, Switzerland, are excluded. Inquiries received outside of these support times shall be regarded as received on the following working day. Support is provided in English.
2.5 Changes to services
MachIQ may modify the Software (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. Professional Services
If you have purchased MachIQ’s technical and change management services to assist the deployment of MachIQ APM, you and MachIQ will abide by the respective terms found in the deployment Statement of Work A (Deployment Services) available at https://machiq.com/deployment or the customized Statement of Work signed between Parties (whichever is applicable). If you have purchased services for the development of custom interfaces between MachIQ APM and your ERP or other systems, you and MachIQ will abide by the customized Statement of Work signed between PartiesMachIQ Interface, you and MachIQ will abide by the customized Statement of Work signed between Parties.
4. Involvement of Third Parties
MachIQ is entitled to involve third parties for the purpose of meeting its contractual obligations. This shall, in particular, apply to hosting services.
MachIQ shall not accept any liability for the services of third parties involved to the extent legally permissible.
In particular, your correspondence or business dealings with, or participation in promotions of, suppliers or otherwise advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the supplier. You agree that MachIQ shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such suppliers on the Service.
5. Remuneration and Payment Terms
5.1 Fee structure
For the use of the Software during the contractual term, the Customer shall owe MachIQ the license fees according to the respective User Plan.
5.2 Payment, upgrading and downgrading
An upgrade from the Freemium or the free trial plan to any paying plan will end the free usage of the Service. The Customer will be billed for the first year immediately upon upgrading. The Service for the Basic Period is billed in advance. If Customer does not terminate the agreement ordinary or extraordinary according to section 9.2, the Service will be billed for the Extension Period in advance at the end of the yearly invoice cycle and is non-refundable. There will be no refunds or credits for partial years of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
The Customer can upgrade or downgrade anytime. For any upgrade or downgrade in plan level, an invoice will be sent at the new rate on the next billing cycle. Downgrading of the Service may cause the loss of content, features, or capacity. For any Upgrade during the course of Basic Period or Extension Period, an adjustment invoice will be sent at the time of Upgrade.
We may change the fees and charges in effect or add new fees and charges from time to time. Furthermore, notwithstanding any other provision contained herein (but subject to any applicable law), at the time of any renewal of your subscription you agree that we may increase your recurring fees up to the greater of (i) the then list price as publicly marketed on our website, or (ii) five percent (5%). We may, in our sole discretion, offer you a grace-period in which your fees will not increase for a certain period of time. If you do not accept the increase or addition to the existing fees, you may elect to terminate your account during the then current billing period and you shall not be liable for such fee increase after the applicable billing period; however, any later renewal of service will be subject to the increased fee structure. If your credit or debit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing you, and you remain responsible for any uncollected amounts.
5.3 Net prices
All prices exclude the respectively applicable statutory sales tax (Switzerland: value added tax). The Customer is responsible for any sales taxes due.
5.4 Measures in the event of payment default
If the Customer defaults on the payment of fees, after relevant warning by email or letter, MachIQ 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 9.2 shall apply.
6. Customer Data, Data Protection and References
6.1 Customer data (Intellectual Property Rights)
The Customer is exclusively entitled to the data input, generated thereby and allocatable to the Customer and the end users of Customer in the context of the use of the Software (“Customer Data”).
Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.
MachIQ shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
The Customer will retain all right, title and interest in and to Customer Data and MachIQ shall not claim ownership of Customer Data. Excluding the use of Statistical Information, MachIQ shall refrain from using, modifying, assigning or transferring to a third party, in whole or in part, whether or not for consideration, the Customer Data which may have been communicated to MachIQ by the Customer for implementation of the Service, for purposes other than purposes of the Agreement. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data.
MachIQ may use Customer Data as and to the extent necessary to prepare its invoices, develop usage statistics and to provide support to the Customer. MachIQ may also compile and publish derivative works and anonymized aggregated statistics, provided they do not identify the Customer or any of the Customer’s Confidential Information and do not include any Personal Data. MachIQ shall retain all intellectual property rights over the results of such derivative works and statistical analysis.
The provisions of this Section shall survive any termination of this Agreement.
6.2 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 and as far as applicable the EU General Data Protection Regulation (“EU-GDPR”) and the Swiss Data Protection Act (Schweizerisches Datenschutzgesetz (“DSG”)) may require the prior consent of the affected persons and/or the registration of the relevant database with a domestic or foreign authority. MachIQ is, as far as applicable, fully compliant with the regulations of the EU-GDPR and the DSG.
You agree to be identified as a customer of MachIQ and you agree that MachIQ may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in MachIQ marketing materials and website. You hereby grant MachIQ a fully-paid, irrevocable, perpetual, world-wide license to use your name and any of your trade names and trademarks solely in connection with the rights granted to MachIQ pursuant to this marketing section.
The Customer shall release MachIQ 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.
Customer hereby agrees to indemnify and hold harmless MachIQ against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
In the assertion of relevant claims, the Customer is obligated to notify MachIQ thereof in writing without delay. In this case, MachIQ is entitled to block the Service for the Customer without delay and without providing a grace period. Any compensation claim asserted by the Customer based on the blocking of the Service is excluded.
MachIQ shall not accept any liability whatsoever to the extent legally permissible, in particular for:
arising from the Customer’s violation of the contractual obligations;
caused by MachIQ’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.
9. No Warranties
Except as represented in this agreement, the Software and the Service of MachIQ is provided “as is”. Other than as provided in this agreement, MachIQ makes no other warranties, express or implied, and hereby disclaims all implied warranties, including any warranty of merchantability and warranty of fitness for a particular purpose.
10. Term and Termination
The User Plan is concluded for three years (“Basic Period”) and shall thereafter extend automatically by the same period (“Extension Period”) if the contractual relationship is not ordinarily or extraordinarily terminated pursuant to Section 9.2 below by one of the contractual parties.
The provisions of Section 9.2 shall apply as aforesaid with respect to a reduction in usage units during the term.
a) Ordinary termination – The contractual relationship may be terminated by any of the contractual parties at the end of the Basic Period or an Extension Period.
b) Extraordinary termination – MachIQ may extraordinarily terminate the contractual relationship for good cause at any time and with immediate effect. Good cause entitling MachIQ 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 MachIQ;
if the Customer defaults on the payment of fees;
if insolvency proceedings are instituted against the Customer;
If the Customer misrepresented itself when subscribing to the service or in any manner whatsoever by providing incorrect, false, fraudulent, negligent, incomplete or misleading information.
10.3 Customer’s data after termination
At the end of the contractual relationship and upon written request by the Customer, MachIQ shall provide a copy of the Customer’s data saved on its servers as of the date of the end of the contractual relationship on a customary data carrier or by electronic transfer and in a customary format.
At the end of the 60 days from the end of the contractual relationship or upon request by the Customer already prior to this period, MachIQ 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.
MachIQ 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 MachIQ as well as separate remuneration by the Customer.
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 this contractual relationship.
The confidentiality obligation shall continue to endure even after termination of the contractual relationship to the extent there is justified interest therein.
12. Final Provisions
12.1 Amendments to these GTC
MachIQ shall notify the Customer of any amendments to these GTC. Any amendments to the GTC shall enter into force for the contractual relationship between MachIQ and the Customer insofar as the Customer does not object to the amended GTC within a period of 10 days in writing.
12.2 Offsetting and assignment of claims
The offsetting of any claims of MachIQ against counterclaims of the Customer shall require the prior written consent of MachIQ.
The Customer is not entitled to assign any claims from the contractual relationship with MachIQ to third parties, in whole or in part, including not to any Group or subsidiary companies.
12.3 Place of performance
The place of performance shall be the registered offices of MachIQ.
12.4 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.
12.5 Date of contract conclusion
The contract is deemed concluded by the receival of a confirmation e-mail after subscribing.
13. Applicable Law and Place of Jurisdiction
The contractual relationship between MachIQ and the Customer, including the User Plan 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 contractual relationship, 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 MachIQ and the Customer, including the User Plan and its Appendices, including their validity, invalidity, violation or dissolution, shall be Basel Stadt, Switzerland. Irrespective thereof, MachIQ is entitled to sue the Customer at its general place of jurisdiction.