Terms and Conditions

Terms and Conditions

1. SUBJECT MATTER OF THE CONTRACT

1.1 Terms and Conditions of Purchase

Terms and Conditions of Purchase or Distribution shall apply exclusively. We shall only recognize conflicting or deviating general terms and conditions of the Supplier only insofar as we have expressed Publicly. Our Legal Terms and Conditions of Purchase or Distribution shall also apply if we make deliveries of produ6cts and services of the Supplier (from now on referred to as "Supplier") in the knowledge that the Supplier's terms and conditions conflict with or deviate from our Terms and Conditions of Purchase. Scaleoperate owns products and services of the Supplier (hereinafter: subject of the Contract).

1.2 APPLICATION

Our Conditions apply to all circumstances, services (Services, Managed and Cloud Services and Products) provided by Scaleoperate, shall replace any previous agreements, and shall apply to all contracts between Scaleoperate and the Customer (after this referred to as "Customer"), unless a Master Agreement of Managed Services exists between the parties or unless otherwise agreed in writing in individual cases. Any business and purchasing conditions of the Customer shall be deemed waived.

1.3 ANNOUNCEMENT

Our General Terms and Conditions, including their amendments, shall be disclosed in particular by posting them on Scaleoperate's website (www.scaleoperate.com), by printing them in its documentation, on its offers for quotation, order confirmations, delivery bills, and invoices.

1.4 SPECIAL TERMS AND CONDITIONS

For Managed Services, Maintenance Services, and Cloud Services, the relevant special terms and conditions, if any, shall apply. These may legally deviate from these General Terms and Conditions. If individual provisions of these General Terms and Conditions, including Special Terms and Conditions Negotiation, become invalid, thus rendering the validity of the remaining provisions shall remain unaffected. In this case, the weak Commission shall be replaced by a provision that comes as close as possible to the soft Commission in terms of its economic purpose. Insofar as these General Terms and Conditions, the Special Terms and Conditions, and any individual written agreement do not contain any provisions, the provisions of the Swiss Code of Obligations shall apply on a subsidiary basis.

1.5 ADAPTATIONS

Scaleoperate is entitled to modify the Services and these General Terms and Conditions to the extent Scaleoperate deems this reasonable and expedient. The Customer's interests are not unreasonably affected thereby. Scaleoperate shall inform the Customer in advance in writing of any changes to these Terms and Conditions. In the event of theft or material changes to the Contract, the Customer shall have the right to terminate the Contract in writing by the effective date of the change, whereby existing orders shall remain unaffected. If he fails to do so or continues to use the services, products, or the like after the new GTC comes into force, they shall be deemed accepted. The current GTC can be viewed at www.scaleoperate.com.

1.6 SERVICE PROVIDER

If Scaleoperate reserves the right to use another company as the Provider of the contractually agreed products and services (Software, Hardware, Maintenance, and Support) instead of the initially designated company and use third-party providers or subcontractors. The Customer has to agree to this.

2. TERMS OF CONTRACT

2.1. START AND DURATION OF THE CONTRACT

The Contract between Scaleoperate and the Customer shall come into effect upon the Customer signing/ordering the quotation, whereby the quote's contents shall be deemed to have been approved. By signing or verbal order, the Customer confirms that they have taken note of our General Terms and Conditions and agrees to them without reservation. In case of an order via internet/telephone, the Contract starts when the corresponding order confirmation/confirmation has been sent by E-Mail to the Customer. Even in the absence of an offer, the contractual relationship begins at the latest, when the product/service/service is used. The delivery of the order confirmation or other documents by E-Mail shall bind the parties and shall be deemed equivalent to delivery by mail. Scaleoperate reserves the right to refuse the conclusion of the Contract without giving reasons. The standard term of the Contract is 36 months unless otherwise agreed in writing.

2.2 CANCELLATION

Upon presentation of a written contract, the minimum duration, the notice period, and the termination date shall be determined by the respective Contract concluded with Scaleoperate. Suppose the termination occurs before the expiry of the agreed minimum duration or on a date not agreed upon. In that case, the refund of the amount/fee pro-rata temporal shall be excluded and forfeited to Scaleoperate. Except for fixed-term contracts, all contracts and subscriptions shall be tacitly continued for a further year after the agreed contract/subscription period unless terminated by either party in writing giving three months' notice to the end of a month on the anniversary of the date of commissioning.

3. GENERAL OBLIGATIONS OF THE CONTRACTING PARTIES

Scaleoperate and the Customer shall make every effort to ensure the proper and faithful performance of the Contract. In particular, they undertake to inform the other party of circumstances that may have an impact on the execution of the Contract and to comply with the guiding principles in force on the Internet ("Net Etiquette," "Godwin's Law"). The Customer shall truthfully inform Scaleoperate about all aspects that could affect its ability to contract or the quality of the services to be provided by the Service Provider. The Customer shall strictly comply with European law and applicable international agreements when using their services, such as Internet access, telephony, and others. In particular, he shall take care not to violate the provisions of the Swiss Penal Code, namely the Telecommunications Act and its ordinances. The Customer shall be liable for actions of a civil and criminal nature and shall release Scaleoperate from any responsibility in the event of criminal prosecution. The Customer shall strictly comply with Swiss legislation when using the infrastructure provided to it.

3.1. Scaleoperate's PERFORMANCE OBLIGATIONS AND SCOPE OF SERVICES

Scaleoperate shall ensure the permanent availability of the infrastructure. For maintenance purposes and in case of unexpected system failures, Scaleoperate may, at any time and without notice, limit the availability of the Services or put them out of operation for an indefinite period. Insofar as Scaleoperate provides services free of charge, such services may be discontinued at any time and without prior notice. This shall not give any claim for reduction, reimbursement, or damages. Any delays caused by force majeure and events that make it substantially more difficult or impossible for Scaleoperate to perform in particular strikes, lockouts, official orders, failure of communication networks and gateways of other providers shall entitle Scaleoperate to extend the delivery or performance of services by at least the duration of the event plus a reasonable grace period.

3.2. OBLIGATIONS OF THE CUSTOMER

The Customer shall be responsible for an appropriate working environment and operation of its infrastructure and computer systems and shall work closely with Scaleoperate to achieve the best possible results. The provision of Internet or telephony services and Managed Services and their quality are closely tied to the location of the Customer's connection when the Contract is signed and the accuracy of the Customer's information. Any changes of address, including those within the same place of residence or building, shall be notified to Scaleoperate without prior request without delay and, if possible, in good time in advance. Scaleoperate may charge the Customer for any costs incurred in searching for the lesson in an unreported change of address. Scaleoperate shall not be liable in the event of unavailability of the Service due to the Customer's relocation or the discontinuation of a third-party service. Scaleoperate reserves the right to switch to the most suitable Service for the Customer's place of residence in the area of the unavailable Service. Scaleoperate shall invoice the Customer for the costs of the technical change and the costs incurred by third parties due to the move, particularly the line rental paid and the costs of line cancellation. Similarly, the Customer shall inform Scaleoperate without requesting any changes in its E-Mail address and any changes in its situation that could affect the Provider's services. The Customer shall be responsible for its terminal equipment's hardware and software components (including programs, licensing, and configuration). The service provider does not guarantee that its services will function properly on technically defective end devices of the Customer.

4. COSTS AND TERMS OF PAYMENT

COMPENSATION FOR EXPENSES Unless otherwise agreed in writing between Scaleoperate and the Customer, Scaleoperate's services shall be invoiced on a time and material ratio basis. In addition to the benefits mentioned above, this also includes assistance and Support by telephone and remote access. The time consists of the time spent at the Customer's site, telephone support, remote access, or the corresponding travel time. Agreed dates and deadlines are binding. The date of the receipt and the goods on the date of delivery or the delivery date or delivery period shall be the receipt of the goods at the place of performance. Suppose delivery is not made "free works" (e.g., DDU or DDP according to Incoterms 2010). In that case, the Supplier shall deliver the goods to the place of performance, considering the time for loading and shipment to be agreed with the freight forwarder. Suppose the Supplier is responsible for installation and/or assembly. In that case, he shall bear all ancillary costs incurred unless otherwise agreed in any other written arrangements. He shall accept all ancillary costs incurred, e.g., travel expenses, provision of tools and tools and personnel, etc., shall be borne by the Supplier. Delivery dates shall be met punctually. In case of non-compliance with the delivery date, the Supplier shall be in default without warning. Suppose the Supplier recognizes difficulties in production, material procurement, adherence to delivery dates, or similar circumstances that prevent him from adhering to the delivery date or making the delivery. In that case, the Supplier shall be deemed to be in default. Delivery date or to deliver the agreed quality and quantity, he shall immediately notify our ordering department.

4.2 TARIFFS

The rates and conditions according to the Contract apply, plus expenses as far as incurred and chargeable. As far as no specific agreements have been made, the standard rate or value of the goods shall be deemed to be owed. The minimum duration of an intervention at the service recipient is two hours. The course of a remote intervention is half an hour, in each case, irrespective of the effective duration.

4.3. INVOICES

All invoices from Scaleoperate are due for payment within 30-120 days from the invoice date, after which interest on arrears shall start to accrue at a rate 10% above the $ USD / £ Pound / SFr CHF / € Euro / Libor.

4.4. REMINDER FEE

A reminder fee of 100.00.- shall be charged after expiration of the payment period, irrespective of the accrual of further interest on arrears.

4.5. SUSPENSION OF PERFORMANCE

If the Customer is behind payment, Scaleoperate is entitled to suspend its services or deliveries. In this case, the Customer shall perform by Scaleoperate and remains obligated to pay any periodic fees or maintenance costs charged thereon in full. Maintenance costs are charged thereon in full. Unconditional acceptance of delivery of the subject of the Contract, which is not on the schedule, shall not constitute a waiver of compensation for the damage caused by the late delivery. 3.7 Partial deliveries are generally inadmissible unless we have given our written and express consent. Express written consent. 4 Place of performance, transfer of risk 4.1 The place of performance shall be where delivery is made following the order. 4.2 The Supplier shall bear the risk until acceptance of the subject of the Contract by our agent or us at the place to which delivery is to be made under the order according to Incoterms 2010. January 2012-Page 2 of 4 5 Force Majeure 5.1 Force majeure, labor disputes, operational disruptions for which we are not responsible, political unrest, unavoidable official events, Higher Power and other occurrences, entitle us without prejudice to our legal rights to withdraw from the Contract in whole or in part, provided that these events are of considerable and/or result in a significant reduction of our requirements. In this case, Scaleoperate shall reimburse the Supplier for the costs of the outward and return transport insofar as the notification of the withdrawal does not reach the Supplier in time. If the departure does not match the Supplier and the transport cannot be stopped, a notice of dispatch and invoice Notification shall be made by our specifications in the purchase orders and delivery schedules. Single copies of delivery bills and packing slips shall be enclosed with each shipment. The documents must contain the order number, quantity and quantity unit, article description with our Article number, and the remaining quantity in the case of partial deliveries.

4.6 CAUTION

Scaleoperate may at any time require the Customer to provide a security deposit to cover the services rendered by Scaleoperate, in particular for the provision of materials, the extraordinary increase in the volume of data, and security in the event of default in payment. If the Customer fails to provide the required guarantee within the period granted, Scaleoperate shall be entitled to refuse or discontinue the provision of Services without further notice. The Customer shall bear complete and sole responsibility for the consequences of the service interruption and may not claim any compensation (cf. 2.2).

5. LIMITATION OF LIABILITY

5.1. LIMITATION

By using the services of Scaleoperate, no liability claims are granted to the extent permitted by law. The Customer is advised of the limitations of the Internet and telephony network and the risks associated with their use. Scaleoperate does not enter into any obligation of results but only an obligation of means. Scaleoperate does not guarantee the constant availability of the Internet and telephone network, an uninterrupted connection, or a minimum data rate. Scaleoperate reserves the right to reinitialize or temporarily disconnect for technical reasons. Scaleoperate undertakes to adhere to the "best-effort" principle, i.e., to use at all times, conglomerate knowledge, human resource, several materials available to Scaleoperate and commensurate with its technical knowledge to achieve the desired result. In no event shall Scaleoperate be liable for any acts, omissions, service interruptions, quality problems, or delays caused by third parties. The Customer's responsibility is to install the necessary security systems (Firewall, Strong Authentication, Reverse Proxy, Intrusion Detection, Vulnerability Detection, SIEM, ...) to protect itself against unlawful attacks. Scaleoperate may, if requested, provide the Customer with technical solutions against payment.
Scaleoperate is not liable for any damage caused to the Customer by a temporary or permanent interruption or delay of the services or the network, such as lost profits, loss of business data, unavailability of data, etc. (direct and indirect damages). In particular, Scaleoperate shall not be liable in the following cases:
Direct or indirect consequential damages in case of malfunction of v's infrastructure, especially in case of malfunction of leased lines of Scaleoperate's subcontractors; Electronic messages that are not transmitted correctly, not transmitted at all, transmitted unlawfully, or intercepted by third parties; Lack of secrecy or inadequate secrecy of encrypted data, in particular even if Scaleoperate acts as a certification authority or offers other cryptology services; Processing errors in the handling of business transactions via the Internet (electronic commerce), in particular not in the case of transmission errors of credit card data or other payment information;
Missing or defective hit rates in Internet search engines, even if the Customer expressly instructs Scaleoperate to perform the search engine registrations;
Legal disputes result from domain name registrations or domain name deletions initiated by Scaleoperate on behalf of the Customer.

5.2 LIABILITY

In any case, Scaleoperate shall only be liable for direct damage upon proof of impairment of the Customer due to gross negligence of an employee or a defect of the proposed (security) solution up to an amount of 50,000.- after taxes. Liability for indirect or consequential damages of any kind, particularly for loss of production and use, for loss of data, profit or other indirect damages, and injuries due to force majeure is excluded and again expressly excluded subject to mandatory statutory liability provisions. Liability, according to the Federal Law of 18 June 1993 on Product Liability (Product Liability Act, PrHG), shall remain unaffected in any case.

6. DATA PROTECTION DECLARATION

The Customer has been informed about the type, scope, location, and purpose of the collection, processing, and use of the personal data required for the performance of Services. The data protection policy of Scaleoperate under Clause 6.1 shall apply. Scaleoperate shall transmit the collected data to companies affiliated with Scaleoperate, including foreign companies, to fulfill the Contract.

6.1. DATA PROTECTION POLICY

Scaleoperate endeavors to lawfully use the Customer Data of which it becomes aware within the framework of the legal provisions, whereby Scaleoperate endeavors to comply with the national and international regulations on data protection. Accordingly, Scaleoperate informs the Customers about processing their data within the framework of the data protection regulations. Processing is defined by the Federal Law of 19 June. 1992, on Data Protection (DPA) as any handling of personal data, regardless of the means and procedures used.

6.2. DATA COLLECTION

a) customer data is collected when an order is placed. This takes place either in the context of a contract initiation in direct contact between the Customer and or online via the appropriate web forms;
b) in addition to the personal data, depending on the Service, various data about the Customer's technical infrastructure are collected, such as serial numbers of hardware, licensing of software, network environment, access data, installation routines, IP addresses, etc.… This data collection takes place exclusively for comprehensive customer support;
c) when visiting Scaleoperate's homepage, the following information is stored by each visitor, which is only used for statistical purposes and does not allow any conclusions to be drawn about the user: IP address used, browser incl. Version, operating system incl. The domain's version and (if available) led to www.scaleoperate.ch (search engine, banner, etc.). Scaleoperate may use the Customer's IP address to ensure compliance with these Terms and Conditions or the security of the Services, the homepage, or other users.

6.3. DATA USE

The data collected by Scaleoperate is used to fulfill the Contract. In addition, Scaleoperate is entitled to use the data for information purposes about other Scaleoperate products.

7. CONFIDENTIALITY, INTELLECTUAL PROPERTY, NON-SOLICITATION

7.1. CONFIDENTIALITY

All activities for and with the Customer shall be treated as confidential. Scaleoperate shall take the necessary precautions to safeguard the relevant information arising from the cooperation. The parties undertake to keep confidential any knowledge of the contractual partner designated as confidential and classified, not making it available to unauthorized third parties. In particular, the Content of contracts, including appendices, even without a specific confidentiality note, shall be deemed confidential. If illegal or immoral acts are discovered, Scaleoperate shall be entitled to disclose customer addresses to third parties, namely law enforcement agencies.

7.2. INTELLECTUAL PROPERTY

The Customer has the right to use the products, inventions, and applications of Scaleoperate Security Services SL as far as they are related to contractual agreements. However, Scaleoperate is the owner and commercial user of these inventions and developments. Any deviation from our verbal and written consent of Scaleoperate.

7.3. SOLICITATION OF PERSONNEL

Neither party may solicit employees of the other party for itself or a third party during the term of the business transaction and within one year after that without the other party's consent. Any party who hires or employs an employee of the other party without the latter's written consent, or who procures or otherwise uses the services of such employee, shall pay to the further party compensation for the resulting recruitment and introduction of personnel in the amount of one-quarter of the annual salary of such employee, but not less than 25,000.-

8. PLACE OF PERFORMANCE, JURISDICTION, AND OTHER MATTERS

The place of performance is Barcelona. European law shall apply to the General Terms and Conditions and the individual contracts concluded. The exclusive place of jurisdiction for all disputes arising from these General Terms and Conditions, the Managed Service Contracts, and the separate contracts concluded shall be Barcelona unless another legally binding place of jurisdiction exists.

Valid as of 01.11.2021 / November 1^st 2021