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GENERAL BUSINESS CONDITIONS

Using these general business conditions, Client may order managed, cloud services, consulting, project, maintenance, and other services (“Services”), and third-party machine or software (“Products”) available from AWSM Digital SA (“AWSM”). Details regarding Services and Products are provided in contracts, schedules, orders and quotes (“Orders”). These general business conditions and applicable Orders are the complete agreement (“Agreement”) regarding transactions under this Agreement.

 

Managed Services – Other Services

Services are provided on Client’s site or remotely. The Order will describe whether Services are to be provided on Client or AWSM owned IT environment. Client shall provide access to its sites and to its IT equipment to AWSM personnel for the Services’ purposes.

With regards to the Services, each party shall ensure timely and adequate collaboration with the other party. The Client agrees that failure or delay in complying with its obligations may result in additional time spent and expenses for AWSM, and that AWSM is be entitled to charge such at the then applicable rates.

Cloud Services

Cloud Services are hosted by a third-party datacentre in Switzerland and managed by AWSM. They are designed to be available 24/7, subject to maintenance. Client shall be notified of scheduled maintenance. Client’s access rights are specified in the Order. Client shall comply with instructions that AWSM may reasonably request. Client is responsible for use of Cloud Services and for anyone accessing the Cloud Services including content with Client’s account credentials. AWSM may modify the computing environment used to provide the Cloud Services, without degrading its functionality or security features.

Client is the owner of the content data it provides. Cloud Services are designed to protect the proprietary content that Client inputs. Client is the data controller of the personal data in the content, and it has obtained the consent of the relevant data owners to enter this Agreement. AWSM’s access to Client’s proprietary content is limited to AWSM employees and contractors that need to deliver the Cloud Services and AWSM shall not disclose Client’s content. AWSM shall return the content in a standard format or destroy it upon termination of the Cloud Services, or earlier upon Client’s request.

A Cloud Service may not be used for unlawful, obscene, offensive or fraudulent content or activity, in any jurisdiction for any user, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, violating third party rights, or to provide hosting or timesharing services, or resell any Cloud Service to Client’s third parties. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly.

Products

Machines or software owned by AWSM that are used for providing Services are not Products. Products are those non-AWSM manufactured machines or editor software, that are specified in an Order as sales, i.e., a procurement for Client’s acquisition purposes.

AWSM transfers title to Product machines to Client upon full payment. The terms and conditions from the original manufacturer or editor apply to Products, and such prevail over these general business conditions. By placing or accepting an Order for any Product, the Client declares accepting such terms and conditions.

Intellectual Property Rights

AWSM will own the copyright in works of authorship under an Order.

Pre-existing or separately developed works are not transferred, whether from Client or AWSM. Some pre-existing works are subject to a separate license agreement. A general available software by an editor is an example of a pre-existing works and is subject to its software license terms.

AWSM grants Client an irrevocable (subject to Client’s payment obligations), nonexclusive, worldwide license to use, execute, and prepare derivatives of pre-existing works, within its enterprise (outside of pre-existing works under license).

Client grants AWSM a nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works of pre-existing works during the Agreement period.  

Warranties

AWSM warrants that it provides Services using reasonable care and skill in accordance with the applicable Order, including any completion criteria, and that project materials will comply with the Order at the time of delivery. AWSM does not provide any further warranties whatsoever for services and for products. However, any Product’ warranties and its related indemnities a software editor or a machine manufacturer may provide are forwarded to the Client for his direct benefit toward such software editor or machine manufacturer and in no circumstances, shall any warranties or indemnities apply to AWSM.

AWSM does not warrant uninterrupted or error-free operation of a Service or that AWSM will correct all defects or prevent third party disruptions or unauthorized third-party access to a Service. Any date or time mentioned in Orders are estimates only. These are the sole warranties that AWSM provides and replace all other warranties, including implied warranties (including those of the Code of Obligations) or noninfringement, and fitness for a particular purpose. AWSM warranties will not apply if there has been misuse, modification, damage not caused by AWSM, failure to comply with instructions provided by AWSM. 

Charges, Taxes and Payment

Client shall pay all applicable charges including charges for use in excess of authorizations, any customs, tax, or fee imposed by any authority under this Agreement, and in case of late payment a reminder fee of CHF 40.-, increased by an annual late payment fee of 8 %, prorated from the invoice date until the effective received payment date. Client shall also pay for AWSMs’ reasonably incurred expenses when related to providing the Services (e.g., travel costs, work or travel time outside normal business hours, parking, etc.). Amounts for: i) recurring charges will be due in advance, ii) time and material charges are billed monthly in arrear, and iii) Products will be prepaid. Order amounts are mentioned excluding VAT. Prepaid Services must be used within the applicable period. AWSM does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid. All amounts are due upon receipt of the invoice and payable within 30 days of the invoice date.

AWSM reserves its rights to adjust recurring charges for all its clients with a three-month advance notice. Any such adjustment will not apply retroactively, but shall always apply for the next renewal period.

Client shall reasonably cooperate upon request with AWSM in case of AWSM or its suppliers’ auditor to verify Client’s compliance with program licenses usage and metrics, and promptly order any required entitlements, pay additional charges at then current rates (including uses in excess of Client’s authorizations or entitlements, and associated maintenance), and other liabilities determined as a result of such verification.

Liability

AWSM’s entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Client up to the amounts paid (if recurring charges, up to 12 months’ charges apply) for the product or service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to AWSM, its contractors, and suppliers. AWSM will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings.

AWSM has no responsibility for claims based on items not provided by AWSM, on Products, or any violation of law or third-party rights whether or not caused by Client’s content or materials.

Duration and Termination

For recurring Services (such as Managed and Cloud Services) the initial period shall be stated in the Order. The initial period shall be automatically renewed, yearly, for a 36 months’ duration.

AWSM may suspend, revoke or limit Client’s use of a Cloud Service if AWSM determines there is a material breach of Client’s obligations, a security breach, or violation of law. Charges will continue to accrue during any suspension. If the cause of the suspension can reasonably be remedied, AWSM shall provide notice of the actions Client must take to reinstate the Cloud Service. If Client fails to take such actions within a reasonable time, AWSM may terminate the Services.

Either party may terminate without a cause a Service upon 30 days’ written prior notice to the other, except for Managed or Cloud Services which will require a 90 days’ written prior notice to the other. In such case, AWSM shall provide Services and Client shall pay charges for Services provided through the effective date of termination. In addition, if Client terminates without cause or AWSM terminates for breach, Client shall meet all minimum commitments and pay termination or adjustment charges specified in the Order and any additional costs AWSM reasonably incurs because of early termination, such as costs relating to subcontractors. AWSM shall take reasonable steps to mitigate any such additional costs. For Products, once an Order is placed, such Order is noncancellable.

In case of a material breach of the Agreement, the non-breaching party shall provide a written notice to the other party to remedy the material breach within 30 days. Failure to remedy within such period, the non-breaching party may terminate the Agreement with immediate effect. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to successors and assignees. 

Governing Law and Geographic Scope

Each party is responsible for complying with laws and regulations applicable to its business and content, import, export, economic sanctions; and transfer of data restriction.

Both parties agree to the application of the laws of Switzerland to this Agreement, without regard to conflict of law principles. All rights, duties, and obligations are settled exclusively by the competent court of Geneva. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory 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.

General

If confidential information is exchanged in connection with this Agreement, the applicable confidentiality agreement is incorporated into, and subject to, this Agreement.  Failing to have a specific confidentiality agreement in place, the following confidentiality clause shall apply: Each party will keep confidential any confidential information transmitted by the other party. Confidential information means that which is labelled « confidential », or that oral information that is referred as such at the time of divulgation. However, when information is or became public (without breach of the other party), such information is not confidential anymore. The period of confidentiality is of 3 years from the time of divulgation.

AWSM’s privacy policies, dated May 2022 apply.

Client accepts an Order by ordering, enrolling, using, or making a payment for the Product or Service. Since this Agreement may apply to many future Orders, AWSM reserves the right to modify it by providing Client at least three months’ written notice. Changes will not apply retroactively; they will apply, however, to new Orders and renewals. For Orders with a renewable contract period, Client may request that AWSM defer the change effective date until the end of the current contract period.

AWSM is responsible for any subcontractor Service as it is for its own Services.

The Cloud Services include a set of security items, and AWSM shall provide Client notice of any unauthorized third-party access to Client’s content of which AWSM becomes aware and shall use reasonable efforts to remediate identified security vulnerabilities. If Client’s content is lost or damaged, AWSM shall assist Client in restoring it to the Cloud Services from Client’s last available backup copy in compatible format. Some of Client’s content may be subject to governmental regulation or may require security measures beyond those specified by AWSM. Client shall not input or provide such content unless AWSM has first agreed in writing to implement additional specific security measures.

Client is responsible for its use of Services and Products and is responsible for obtaining all necessary permissions to use, provide, store and process Client’s content in Cloud or other Services, and grants AWSM permission to do the same. AWSM does not undertake to perform any of Client’s regulatory obligations or assume any responsibility for Client’s business or operations.

During the Agreement period and for an additional twelve months thereafter, Client shall not solicit nor to offer, whether directly or indirectly, employment to any AWSM personnel. In the event Client breaches this obligation, Client shall pay, immediately on demand, the equivalent of eighteen months’ gross income of the involved personnel.

Both parties are independent companies, and each party is responsible for determining the assignment of its own personnel and contractors, and for their direction, control, and compensation. Any lease of personal (location de service) is explicitly excluded.

Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Assignment of AWSM rights to receive payments or in conjunction with the sale of its activity do not necessitate consent by Client.

Any notice must be in writing and sent to the address on the Order, unless a party designates in writing a different address. The Agreement supersedes any course of, discussions between the parties. If there is a conflict, an Order prevails over the terms of these general business conditions.

No right or cause of action for any third party is created by this Agreement or any transaction under it. Neither party is responsible for failure to fulfil its non-monetary obligations due to causes beyond its control. Each party shall allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval, acceptance, consent, access, cooperation or similar action by either party is required, such action shall not be unreasonably delayed or withheld.

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