Terms
and conditions

The Cloud Services are hosted by a third-party data centre located in Switzerland and managed by AWSM. They are designed to be available 24/7, subject to maintenance operations.

The Client will be informed of scheduled maintenance. The Client's access rights are specified in the Order. The Client undertakes to comply with the instructions that AWSM may reasonably ask it to follow.

The Client is responsible for the use of the Cloud Services, as well as for any person accessing the Cloud Services, including any content used with the Client's account credentials.

AWSM may modify the IT environment used to provide the Cloud Services, without degrading their functionalities or security features.

The Client remains the owner of the content data it provides. The Cloud Services are designed to protect the proprietary content entered by the Client.

The Client is responsible for the processing of personal data contained in this content, and confirms that it has obtained the consent of the data subjects concerned in order to enter into this Agreement.

AWSM's access to the Client's proprietary content is limited to AWSM employees and subcontractors who need it in order to provide the Cloud Services. AWSM undertakes not to disclose the Client's content.

AWSM will return the content in a standard format or destroy it at the end of the Cloud Services, or earlier at the Client's request.

A Cloud Service may not be used for unlawful, obscene, offensive or fraudulent content or activities, in any jurisdiction whatsoever and for any user whatsoever. This includes, in particular, encouraging or causing harm, disrupting or violating the integrity or security of a network or system, circumventing filters, sending unsolicited, abusive or misleading messages, viruses or malicious code, infringing the rights of third parties, or providing hosting services, computer time-sharing services, or reselling any Cloud Service to third parties of the Client.

In the event of a complaint or notification of a violation, use may be suspended until the issue is resolved, and terminated if it is not resolved promptly.

Machines or software owned by AWSM and used to provide the Services are not considered Products.

Products means machines not manufactured by AWSM or software published by third parties, which are specified in an Order as being subject to a sale, i.e. a purchase intended for acquisition by the Client.

AWSM transfers ownership of the machines constituting Products to the Client after full payment.

The general terms and conditions of the original manufacturer or publisher apply to the Products and prevail over these terms and conditions.

By placing or accepting an Order for a Product, the Client declares that it accepts said general terms and conditions.

AWSM will hold the copyright in the works created under an Order.

Pre-existing works or works developed separately are not transferred, whether they originate from the Client or from AWSM.

Certain pre-existing works are subject to a separate licence agreement. Generally available software, provided by a publisher, is an example of a pre-existing work and is subject to the licence terms of the software concerned.

AWSM grants the Client an irrevocable licence, subject to compliance with its payment obligations, non-exclusive and worldwide, allowing it to use, execute and create derivative works from the pre-existing works, within its business, excluding pre-existing works subject to a separate licence.

The Client grants AWSM a non-exclusive, worldwide and fully paid-up licence, allowing it to use, execute, reproduce, display, perform, sublicense, distribute and create derivative works from the pre-existing works for the duration of the Agreement.

AWSM warrants that it will provide the Services with reasonable care and skill, in accordance with the applicable Order, including any completion criteria, and that the project deliverables will conform to the Order at the time of their delivery.

AWSM provides no other warranty of any kind whatsoever regarding the Services and Products.

However, warranties relating to the Products, as well as any related indemnities that may be provided by a software publisher or machine manufacturer, are passed through to the Client for its direct benefit with respect to that software publisher or machine manufacturer. Under no circumstances will such warranties or indemnities apply to AWSM.

AWSM does not warrant the uninterrupted or error-free operation of a Service, nor that AWSM will correct all defects or prevent interruptions caused by third parties or unauthorised third-party access to a Service.

Any date or time mentioned in the Orders is given for estimation purposes only.

The above warranties constitute the sole warranties provided by AWSM and replace all other warranties, including implied warranties, in particular those provided for by the Code of Obligations, warranties of non-infringement of third-party rights, as well as warranties of fitness for a particular purpose.

AWSM's warranties do not apply in the event of misuse, modification, damage not caused by AWSM, or failure to comply with instructions provided by AWSM.

The Client will pay all applicable fees, including fees related to any use exceeding the authorisations granted, as well as any customs duty, tax or levy imposed by an authority in connection with this Agreement.

In the event of late payment, a reminder fee of CHF 40.- will be charged, plus annual late payment interest of 8%, calculated pro rata from the invoice date to the date of actual receipt of payment.

The Client will also reimburse expenses reasonably incurred by AWSM when they relate to the provision of the Services, in particular travel expenses, working or travel time outside normal office hours, parking costs, etc.

Amounts relating to:

i) recurring fees are due in advance;

ii) time and materials services are invoiced monthly in arrears;

iii) Products are payable in advance.

Amounts indicated in the Orders are exclusive of VAT.

Prepaid Services must be used during the applicable period. AWSM grants no credit or refund for prepaid amounts, one-off fees or any other amount already due or paid.

All amounts are due upon receipt of the invoice and payable within 30 days of the invoice date.

AWSM reserves the right to adjust recurring fees for all of its clients upon 3 months' notice. Such an adjustment will not apply retroactively, but will always apply to the following renewal period.

At AWSM's request, the Client will reasonably cooperate with AWSM, or with AWSM's auditors or those of its suppliers, in order to verify the Client's compliance with programme licences, their terms of use and their metrics.

The Client will promptly order the required usage rights, pay the additional fees at the rates then in effect, including those related to uses exceeding the Client's authorisations or rights as well as the associated maintenance, and assume any other liability determined as a result of this verification.

AWSM's total liability for any claim related to the Agreement may not exceed the amount of direct damages actually suffered by the Client, within the limit of the amounts paid for the product or service that is the subject of the claim. In the case of recurring fees, this limit corresponds at most to the fees paid over a 12-month period.

This limitation applies regardless of the basis of the claim.

It applies collectively to AWSM, its subcontractors and its suppliers.

AWSM may not be held liable for special, incidental, exemplary, indirect or consequential economic damages, nor for loss of profits, business, value, revenue, goodwill or anticipated savings.

AWSM assumes no liability for claims based on elements not provided by AWSM, on Products, or on any violation of the law or third-party rights, whether or not caused by content or elements provided by the Client.

For recurring Services, such as Managed Services and Cloud Services, the initial period will be indicated in the Order.

The initial period will be automatically renewed each year for a period of 36 months.

AWSM may suspend, revoke or limit the Client's use of a Cloud Service if AWSM believes there is a substantial breach of the Client's obligations, a security breach or a violation of the law.

Fees will continue to accrue during any period of suspension.

If the cause of the suspension can reasonably be remedied, AWSM will inform the Client of the steps to be taken to restore the Cloud Service.

If the Client does not take these steps within a reasonable time, AWSM may terminate the Services.

Either party may terminate a Service without cause upon 30 days' written notice to the other party, except for Managed Services or Cloud Services, for which 90 days' written notice is required.

In this case, AWSM will provide the Services and the Client will pay the fees relating to the Services provided up to the effective date of termination.

In addition, if the Client terminates without cause, or if AWSM terminates due to a breach by the Client, the Client will be required to honour all minimum commitments and pay the termination or adjustment fees provided for in the Order, as well as all additional costs reasonably incurred by AWSM as a result of the early termination, in particular costs related to subcontractors.

AWSM will take reasonable steps to limit these additional costs.

For Products, once the Order has been placed, it can no longer be cancelled.

In the event of a substantial breach of the Agreement, the non-breaching party will send the other party a written notice requesting that it remedy said breach within 30 days.

If the breach is not remedied within this period, the non-breaching party may terminate the Agreement with immediate effect.

Any clause which, by its nature…

Each party is responsible for complying with the laws and regulations applicable to its business and its content, in particular with regard to import, export, economic sanctions and data transfer restrictions.

The parties agree that this Agreement is governed by Swiss law, excluding conflict of law principles.

All rights, duties and obligations arising from this Agreement fall exclusively within the jurisdiction of the competent courts of Geneva.

If a provision of this Agreement is invalid or unenforceable, the other provisions will remain in full force and effect.

No provision of this Agreement affects legal rights that cannot be waived or limited by contract.

The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

If confidential information is exchanged in connection with this Agreement, the applicable confidentiality agreement is incorporated into this Agreement and subject to its provisions.

In the absence of a specific confidentiality agreement, the following confidentiality clause applies: each party will keep confidential any confidential information disclosed by the other party.

Confidential information means any information identified as "confidential", as well as any oral information presented as such at the time of its disclosure.

However, where information is or becomes public, without violation of these terms and conditions by the other party, that information ceases to be confidential.

The confidentiality period is 3 years from the date of disclosure.

AWSM's privacy policies, dated May 2022, apply.

The Client accepts an Order by ordering, registering, using or making a payment for the relevant Product or Service.

Given that this Agreement may apply to numerous future Orders, AWSM reserves the right to amend it upon at least 3 months' written notice to the Client.

Amendments will not apply retroactively. However, they will apply to new Orders and renewals.

For Orders with a renewable contract period, the Client may ask AWSM to defer the effective date of the amendment until the end of the current contract period.

AWSM is responsible for the Services provided by its subcontractors as if they were its own Services.

The Cloud Services include a set of security measures. AWSM will inform the Client of any unauthorised third-party access to the Client's content of which AWSM becomes aware, and will make reasonable efforts to remedy any identified security vulnerabilities.

If the Client's content is lost or damaged, AWSM will assist the Client in restoring it in the Cloud Services from the Client's most recent available backup copy, in a compatible format.

Part of the Client's content may be subject to government regulation or may require security measures beyond those specified by AWSM.

The Client must not enter or provide such content unless AWSM has previously agreed in writing to implement additional specific security measures.

The Client is responsible for its use of the Services and Products. It is also responsible for obtaining all authorisations necessary to use, provide, store and process the Client's content in the Cloud Services or other Services, and authorises AWSM to do the same.

AWSM does not undertake to perform the Client's regulatory obligations and assumes no responsibility regarding the Client's business activity or operations.

During the term of the Agreement and for an additional period of 12 months after its expiry, the Client will refrain from soliciting or offering, directly or indirectly, employment to any member of AWSM's personnel.

In the event of a breach of this obligation by the Client, the Client will be required to pay immediately, upon request, an amount equivalent to 18 months of the gross income of the person concerned.

Both parties are independent companies. Each party is responsible for assigning its own personnel and subcontractors, as well as for their direction, control and remuneration.

Any provision or leasing of personnel is expressly excluded.

Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent.

The assignment of AWSM's rights to receive payments, or an assignment made in connection with the sale of its business, does not require the Client's consent.

Any notice must be given in writing and sent to the address indicated in the Order, unless a party designates another address in writing.

This Agreement supersedes any prior exchange, usage, practice or discussion between the parties.

In the event of a conflict, an Order prevails over these terms and conditions.

This Agreement, as well as any transaction concluded under it, creates no right or cause of action for the benefit of a third party.

Neither party may be held liable for failure to perform its non-monetary obligations where such failure is due to causes beyond its control.

Each party will give the other a reasonable opportunity to comply with its obligations before claiming that the other party has failed to comply with them.

Where the approval, acceptance, consent, access, cooperation or similar action of a party is required, such action must not be unreasonably delayed or withheld.