General Terms and Conditions

Article 1: General

These General Terms and Conditions, and the related Service Contract Proposal, form together the “Agreement” that govern the provision of consulting, coaching and implementation services by AGENTIL SA.

AGENTIL SA company identified in the Service Proposal Contract. “Licensee” refers to the company subscribing to the consultancy services as indicated on the Service Proposal Contract.

The present general terms and conditions are applicable to any sale of software license and access to software services carried out by AGENTIL SA. They do not apply to provision of consulting, coaching or implementation services.

They are considered as formally and explicitly accepted by the Licensee.

They remain valid even in cases where they contradict the general or special terms and conditions of Licensee, unless AGENTIL SA has accepted the latter conditions explicitly and in writing.

AGENTIL SA desires to grant under the conditions of this Agreement a license to Licensee to get access to the software application and make use of it. Licensee has studied the Licensed Program before signing this Agreement, and fully understands the working and value of the system.

Article 2: Definitions

• "Licensed Program": The term Licensed Program shall include the software application and related licensed materials and data, access to which is granted supplied to the Licensee under this Agreement
• "Use": Unless otherwise defined in this Agreement, the term Use shall mean the use of all or any part of the Licensed Program. The rights granted are further specified in article 4 of this agreement.

Article 3: Term

• The Agreement is effective from the date that the Service Contract Proposal is signed by both parties.
• In addition to the remedies provided for in Article 8, AGENTIL SA may immediately terminate the Agreement in total upon written notice if (a) Licensee becomes insolvent, files a petition of bankruptcy (or any similar petition under any insolvency law of any jurisdiction), ceases its activities, or proposes any dissolution, or (b) Licensee is in severe violation of this Agreement.
• Right to use the license can be terminated for convenience, depending on the subscription model chosen, as described in the Service Contract Proposal

Article 4: License

• Upon payment of the due amounts, AGENTIL SA grants to Licensee. A non-transferable and non-exclusive right of access to the Licensed Program. A non-transferable and non-exclusive license to use the Licensed Program for data processing with its business partners in accordance with its intended use.
• Licensee shall not use, print, copy, modify, translate or alter the Licensed Program in whole or in part except as expressly provided for in this Agreement or as permitted by compelling law. In addition, Licensee has no permission to decompile, disassemble, or analyse the Licensed Program by "reverse engineering" and each attempt thereto shall constitute an infringement to this Agreement, unless such act is expressly permitted by compelling law.
• The parties hereto expressly agree that the Licensed Program, to the extent that it would be modified, will replace as modified version the original or previous version of such Licensed Program and henceforth be subject to all rights and obligations as mentioned in this Agreement, including but not limited to, the provisions concerning term, rights of use ("license"), protection and security, title, default, limited warranty, patents and copyrights, unless such matters are regulated differently in this Agreement.

Article 5: Protection and security of Licensed Programs

AGENTIL SA warrants and Licensee agrees that the Licensed Program is confidential and proprietary and a valuable commercial asset of AGENTIL SA. Licensee agrees to keep the Licensed Program in confidence, to not disclose the Licensed Program to any third parties except when using it for its business partners and colleagues, and: (i) limit availability of the Licensed Program to those of its employees who are contractually permitted and need to have access thereto in order to use the Licensed Program in conjunction and who have been informed by Licensee of the proprietary nature of the Licensed Program; (ii) have such employees treat as confidential the Licensed Program; (iii) avoid publication or other disclosure of the Licensed Program to other than those persons described in (i) above; and (iv) not allow anybody to disclose or make available the Licensed Program to any unit, division, group, or subsidiary of Licensee or Licensee's parent company if engaged in the development or sale of computer programs which are or may be competitive with the Licensed Program – except if this use is part of a collaboration project Licensee conducts on the Licensed Program.

Licensee's obligations set forth in this Article shall survive any termination or expiration of this Agreement or discontinuance of the license granted under this Agreement.

Article 6: Title

All intellectual property rights in, title to or ownership of the Licensed Program and the services delivered by AGENTIL SA shall at all times remain with AGENTIL SA.

Article 7: Invoices

• The invoices are payable in full to the bank account of AGENTIL SA.
• All prices quoted by AGENTIL SA are in € and do not include VAT.
• Payment of each invoiced amount, taxes included, has to be done on the account number of AGENTIL SA, without expenses for AGENTIL SA, within 30 (thirty) days after the date of the invoice.
• Interest will be due for any unpaid invoice at a rate of 1 % per month of the invoice total, legally and without notice, by the simple expiry of the term of 30 days after invoice date.
• In addition, a compensation of 10% of the invoice total, with a minimum of EUR 125 will be due for any unpaid invoices, legally and without notice, this to cover the recovery charges, irrespective of the late payment interests and the legal costs, and without prejudice to all other rights and compensations in favour of AGENTIL SA.
• Any contestation of an invoice must be transmitted to AGENTIL SA within 8 days after receipt of the invoice, by registered letter and duly justified.

Article 8: Default

Either party shall in case of default at all times give the other party an express written notice to remedy the default. Either party shall than have 30 days from the date of such message to cure the default. If the default is not corrected by the end of such period, the parties reserve the right, in addition to any other remedies retained in this Agreement or any Annex hereto, or may be entitled to by law, to immediately, without intervention of the court ("de plein droit"), terminate this Agreement by law and - with respect to AGENTIL SA - terminate any licenses granted hereunder, without any repayment by either party and with complete indemnification of AGENTIL SA.

Article 9: Limited warranty

• AGENTIL SA represents that the Licensed Program when made available to the Licensee will be the most recent officially released version of that Licensed Program.
• AGENTIL SA does not warrant that the functions contained in the Licensed Program will meet all Licensee's performance requirements or that the Licensed Program will operate in accordance with all Licensee's expectations. Before signing this Agreement Licensee has studied the program and its performance and accepts responsibility for selection of the Licensed Program, its use and the results to be obtained there from.
• Except as expressly provided for in this Agreement, AGENTIL SA makes no warranty of any kind, express or implied, and the warranty of fitness for a particular purpose is hereby excluded.

Article 10: Patents and copyright

AGENTIL SA shall defend and hold Licensee harmless from any claims, lawsuits or legal actions instituted against Licensee by any third party that are based on the argument that the Licensed Program constitutes fraudulent infringement of copyrights protected in those countries where the programs are permitted to be used.

The obligations of AGENTIL SA in the terms of this article are expressly subordinated to the following terms:

Licensee must inform AGENTIL SA immediately and by registered mail with acknowledgement of receipt of any claim or legal action based on the fraudulent infringement of a copyright, and Licensee must communicate to AGENTIL SA any information available to Licensee regarding this claim, and Licensee must co-operate, completely and at his own expense, with AGENTIL SA in all matters of the defence, the dispute or the settlement of the claim.

If Licensee fails to comply with the above, it shall enjoy no recourse under the provisions of this Article. Licensee alone shall be liable for all the costs, damages, interests and legal expenses which Licensee would have had to pay in the terms of any decision as well as for any settlement or any transaction concluded without the prior written agreement of AGENTIL SA.

If the use of the Licensed Program seems likely to lead to a legal action for copyright infringement, then AGENTIL SA shall, at any time and at its own expense:

• replace the Licensed Program with a non-infringing program, or alter it so as to eliminate any infringement
• obtain for Licensee the right to use the infringing Licensed Program

The above is the only and exclusive obligation and warranty of AGENTIL SA with respect to copyrights.

AGENTIL SA offers no warranty in the area of patent infringement, or any other industrial and intellectual right, except with respect to copyright as stated above.

AGENTIL SA shall not be liable in any way with respect to Licensee if the claim or infringement is founded on or caused by the following actions performed by any other party than AGENTIL SA:

• the combination of the Licensed Program with equipment, systems or software supplied by a third party
• the use of the Licensed Program for purposes other than those for which it is intended.

AGENTIL SA’s liability for Licensee’s infringement of a third party’s right is limited to that stipulated above.

Article 11: Confidentiality

Licensee acknowledges that the information and data it receives from AGENTIL SA concerning the Licensed Program are confidential and proprietary and a valuable commercial asset of AGENTIL SA.

AGENTIL SA acknowledges that the general business information it receives from Licensee is confidential and proprietary.

Both parties agree to keep the above mentioned information and data they receive from the other party in confidence and to not disclose any of it to a third party or use it for its own benefit without previous consent of the other party in writing.

Both parties may only disclose the confidential information or data to those of its employees, who require the information to enable that party to fulfil its contractual obligations towards the other party.

Article 12: Limitation of liability

• In no event shall AGENTIL SA's liability include any incidental or consequential damage arising out of the use of the Licensed Program or the related information or documentation, or any other damage which has not been caused directly and immediately by a fault of AGENTIL SA, such as but not limited to loss of income, claims of third parties, loss of data, damages or defects due to materials or information from Licensee or a third party.
• For direct damages, if repair in species is not possible, the liability of AGENTIL SA toward Licensee or toward third parties shall never exceed the amounts paid by Licensee for the use of the Licensed Program during one (1) year.

Article 13: Hiring of personnel

• Licensee and AGENTIL SA shall undertake not to employ or to enter into any agreements in any other way, either directly or indirectly, with any of each other's employees who are involved in an agreement or in the execution thereof, without the prior written consent of the other party. This prohibition applies for the duration of the agreement and for 12 (twelve) months thereafter.
• If the prohibition is infringed, the infringer shall pay the other party a lump-sum settlement equal to the total cost of the employee for the non-infringing party during the last 12 (twelve) months of the relationship with this party.

Article 14: Force majeure

In case of force majeure, such as e.g. complete or partial stagnation of the transportation system, illness of the personnel of AGENTIL SA, problems of telecommunication, obstructions within the company or default of the suppliers of AGENTIL SA, AGENTIL SA shall always be entitled to either suspend its obligations as long as the situation of force majeure continues, or, if the force majeure continues for more than 6 (six) months, to terminate the agreement by law, without AGENTIL SA being liable for damages in any of both cases.

Article 15: Prohibition of assignment

This Agreement, the license granted hereunder and the access to and use of the Licensed Program provided to Licensee under this Agreement may not be assigned, sublicensed or otherwise transferred by Licensee to any third party without AGENTIL SA's prior written consent.

Article 16: No Waiver

The waiver by either party of any default or breach of any agreement between parties shall not constitute a waiver of any subsequent default or breach.

Article 17: Disputes

If an amicable resolve of a dispute proves impossible, the courts with jurisdiction in the district of Geneva shall solely be competent.

The agreement is governed by law of Swizerland. In case of contestation between various judicial regulations in time, the jurisdiction applicable at the time the disputed contract was executed, or should have been executed, is applicable.