General terms and conditions (GTC)
Version 01 November 2023
These General Terms and Conditions ("General Terms and Conditions", "GTC", or “Agreement”) govern the contractual relationship between Pelt8 ("Pelt8" or the "Provider") and its customers (hereinafter referred to as the "Customer") for the use and access of the software or platform (the "Pelt8 Platform", or “Software”) developed by Pelt8.
Users utilizing the limited version ("Pelt8 Light") of the Pelt8 Platform, for instance, for testing purposes or as part of a limited-time proof of concept (POC), respectively, agree to be bound by this Agreement and its provisions. This Agreement is accepted during the sign-up and the first login of the Customer by agreeing to the General Terms and Conditions and may be supplemented by any additional agreements between the Parties deemed necessary for the purpose of testing.
For Customers to access and utilize the full capabilities of the Pelt8 Platform, they must complete the Provider's STANDARD SUBSCRIPTION FORM. By doing so, the Customer unequivocally acknowledges the following provisions without reservation.
All terms in this Agreement, unless specifically expressed otherwise, shall apply to the Pelt8 Platform, including the Pelt8 Light version. This means that the terms governing the use of the Pelt8 Platform are identical for both the full version and the Pelt8 Light version, unless explicitly mentioned otherwise.
The Provider reserves the right to make subsequent amendments or additions to the GTC. These amendments or additions become part of the contract unless the Customer objects within 14 days of becoming aware.
The current version is published on the Provider's website (https://www.pelt8.com/legal/general-terms-and-conditions).
Agreement
With the Pelt8 Platform, the Provider primarily offers a ‘Software as a Service’ ("SaaS") services over the Internet in the field of business software to its customers. Additionally, the Provider provides supplementary services in various areas (hereinafter collectively referred to as "Services"). The current scope of services and conditions is detailed in the current service description on the Provider's website. The subject of the Agreement includes, in particular:
The provision of the Pelt8 Platform for use over the Internet;
The storage of customer data ("Data Hosting");
The provision of various add-ons (the “Platform Add-On”) in addition to the Pelt8 Platform. Some Platform Add-Ons are offered by the Provider itself, and some are offered by third-parties.
Licensed Company
A “Licensed Company” is one that has secured the necessary authorization from the Provider to access and utilize the Pelt8 Platform, whether it be the full version or the Pelt8 Light version of the Software.
The term Licensed Company is now explicitly defined to encompass not only the Customer but also any entity or organization owned by or associated with the Customer, as expressly detailed in the STANDARD SUBSCRIPTION FORM or any agreement between the Parties.
Furthermore, third-party trustees or consulting companies fall within the scope of this definition. This authorization may be obtained either through a direct agreement with the Provider or via specific written consent provided by the Customer, permitting third-parties such as trustees or consulting companies to access the tool.
The usage by these third-party entities is contingent upon adherence to the terms and conditions stipulated in the agreement, which includes compliance with specified usage limitations and conformity with the relevant sections, particularly Section 4 concerning access rights.
Provision of Software
The Provider makes the Pelt8 Platform available to the Licensed Company and its dedicated users (the “User”) for the duration of this Agreement, in the respective current version, over the Internet.
To access and utilize the full capabilities of the Pelt8 Platform, Licensed Company must pay a fee as established in the STANDARD SUBSCRIPTION FORM or any agreement between the Parties. This does not apply to the Pelt8 Light version that can be provided for free.
The Provider continuously develops the Software and will improve it through regular updates and upgrades.
The Provider continuously monitors the functionality of the Software and corrects Software errors to the extent of technical possibilities.
Usage Rights for the Software
The Provider grants the Licensed Company a non-exclusive and non-transferable right to use the Pelt8 Platform during the term of the contract within the respective scope of services. The Licensed Company is prohibited from reproducing or modifying the Software unless expressly approved in writing by the Provider.
Furthermore, the distribution of the Software to third-parties in any form is strictly prohibited, except where expressly permitted in a written agreement between the Provider and the third-party or has been specifically approved in writing by the Provider for the Customer. This prohibition includes any attempt by the Customer to provide the Software to unauthorized third-parties, whether for a fee or free of charge. The Customer is committed to structuring its contractual relationships with third-parties to effectively prevent the unauthorized use of the Software by such entities.
Data protection and privacy
5.1. Handling of Customer Data
All data processing activities of Licensed Company’s data including the customer’s data (the “Customer Data”) under this Agreement are subject to the terms and conditions outlined in the DATA PRIVACY POLICY (https://www.pelt8.com/legal/privacy-policy) and the DATA PROCESSING AGREEMENT (DPA) Policy (https://www.pelt8.com/legal/data-processing-agreement) executed between the Parties, which are both accepted with this Agreement by the Licensed Company. Both parties commit to complying with the data protection obligations, rights, and responsibilities as defined in the DPA, as well as in accordance with the General Data Protection Regulation (GDPR) and other relevant data protection laws and regulations. In case of any conflict between the terms of this Agreement and the DPA or GDPR, the DPA and GDPR take precedence to ensure the lawful and secure handling of personal data throughout the Agreement.
5.2. Feedback
If a Licensed Company provides feedback to Pelt8 regarding the functionality and performance of the Contractual Services, Pelt8 may use that feedback without restrictions and without any obligation to the Licensed Company.
Cooperation with Third-Parties / Trustee
The Customer has the option to grant access to their Pelt8 account to a third-party, such as their trustee (the “Trustee”), to facilitate data exchange. The Customer retains full control over the access rights of the third-party, or the Trustee, to their data and can restrict or deny access at any time. It is crucial to emphasize that if any such services require access to the Pelt8 Platform, such access is subject to the terms outlined in Section 4 of this Agreement, and it is imperative that the granting of access be explicit.
To initiate access for any third-party, the Customer must explicitly grant written consent, adhering to the provisions detailed in Section 4. By granting access rights to third-parties, the Customer explicitly agrees that the Provider may share all released data with the authorized access entity, such as the Trustee, or allow access to it. The Provider assumes no responsibility for the data processing conducted by the access holder (e.g., Trustee).
Consultation Services from Third-Party Providers
Licensed Company have the right to seek consultation services (the “Consultation Services”) from third-party providers, including Trustees or external consultants, for activities such as the setup and onboarding of the Pelt8 Platform. It is crucial to emphasize that if any of these Consultation Services require access to the Pelt8 Platform, such access is subject to the terms outlined in Section 4 of this Agreement, and it is imperative that the granting of access be explicit..
All claims for performance by the Customer are exclusively against the third-party provider of the Consultation Services.
The Provider reserves the right to restrict or terminate Consultation Services for individual customers at any time for significant reasons. Significant reasons include, in particular, querulous or excessive use of the offering.
Support
The Provider will respond to Licensed Companies inquiries regarding the Software and other services provided by the Provider as quickly as possible during regular business hours, which are defined as follows:
Regular business hours are from 8:00 am to 5:00 pm local time in Switzerland on any working day. A working day is any day other than a Saturday or Sunday or a public holiday in the city or canton of Zurich.
Basic support for addressing issues related to the SaaS tool, such as bugs or errors, is offered without charge. It is important to be aware that support for third-party software and services, including Consultation Services and Platform Add-Ons, is not encompassed within this basic support. Additionally, any supplementary services, such as consultation, quality control, or training, are not covered by this free support service.
The Licensed Companies should report any faults and other problems related to the Pelt8 Platform to the Provider during regular business hours using the following communication channels:
Email: support@pelt8.com
System: Currently, support is available via email.
Future: A ticket creation feature will be introduced via the support function in the system.
Data Hosting & Data Back Up
All data hosting and data back up activities under this Agreement are subject to the terms and conditions outlined in this Agreement and the Pelt8 Data Hosting Policy (https://www.pelt8.com/legal/data-hosting-policy).
9.1. Data Hosting
The Provider ensures that stored data is accessible over the Internet to the extent of technical possibilities. The Provider takes appropriate and reasonable precautions to prevent data loss and unauthorized third-party access to the Licensed Company’s data, including regular data backups, virus checks, and firewall installations.
The Licensed Company retains exclusive rights to the data and can request the Provider to release specific or all data during the contract term without the Provider's right to retain it. The data will be transmitted over a data network in the format used by the Provider, and the Provider may request compensation for data release.
Following the contract's conclusion, the Licensed Company can request data release for one month. The Provider is not obliged to store the Licensed Company's data beyond this period or ensure its release. If the Licensed Company requests data release after the one-month period has elapsed, the Provider may, at its discretion, comply with this request and may charge a reasonable fee.
9.2. Data Backup
The Provider creates daily data backups for each Licensed Company, retained for 7 days, and for submitted data weekly long-term backups are held for 5 weeks. The Provider endeavours to restore lost data promptly upon request. The Licensed Company may be charged a reasonable fee if data loss is not due to a contract breach by the Provider.
The Pelt8 Platform does not replace the need for the Licensed Company to maintain regular data backups or redundant data archives. If there is loss, destruction, damage, or corruption of Licensed Company Data caused by Pelt8’s systems or Contractual Services, Pelt8's sole obligation and liability, and the Licensed Company's sole remedy, is to restore the Licensed Company Data from the most current backup, following the disaster recovery plan and/or incident response plan.
In the unlikely event of Pelt8's liquidation or cessation of operations, Pelt8 is responsible for ensuring uninterrupted access to Licensed Company data, implementing necessary measures such as data backups and secure data transfer protocols. Pelt8 will make the transition of data access as smooth as possible for the Licensed Company and work cooperatively with the Licensed Company or appointed third-parties.
9.3. Availability of the Software and Data Hosting
The Provider aims to make the Software and data hosting available 24/7. However, there may be restrictions on availability due to maintenance work, updates, and circumstances beyond the Provider's control, like force majeure, third-party faults, or issues with Provider's Software and hardware. Compensation is not provided in such cases.
Scheduled maintenance, when possible, occurs outside regular business hours, defined as 8.00 am to 5.00 pm local time in Switzerland on working days.
The Licensed Company acknowledges that scheduling maintenance and deployments may depend on technical requirements, system dependencies, and resource availability.
Temporary unavailability, when it occurs, does not breach this Agreement, and Pelt8 is not liable for damages or losses from such incidents, provided Pelt8 diligently works to restore normal Software availability.
Customer Duties
10.1. Data added to Pelt8
The Licensed Company undertakes to use the SaaS services provided by Pelt8 exclusively for the intended contractual purpose. The Licensed Company is solely responsible for the content created, transmitted, or used by them and the users they have set up using the SaaS services. The Licensed Company is responsible for the necessary system requirements (browser) for using the Pelt8 Platform. The Licensed Company is also responsible for entering and maintaining the data and information required for using the SaaS services, notwithstanding Pelt8's obligation for data backup.
10.2 Unauthorized access
The Licensed Company is obliged to take suitable measures to prevent unauthorized access by third-parties to the Software. The Licensed Company is responsible for instructing their employees about existing intellectual property rights and ensuring compliance with them. In particular, the Licensed Company will instruct their employees not to make copies of the Software or to disclose access data to third-parties.
10.3. Account and Password
The Licensed Company must generate a "User ID" including a password themselves when accepting the access to the tool via Microsoft Authenticator. The Licensed Company is obligated to keep their User ID including the password confidential and not disclose it to third-parties. The Licensed Company must promptly inform Pelt8 of any unauthorized use or other security breaches. In such cases, Pelt8 will reset the Licensed Company's User ID including the password.
10.4. Access security
The Licensed Company must take all measures that, in their reasonable judgment, are necessary to maintain or improve the security of data, software, and network connections.
10.5. Agreement Termination
Upon termination of the contractual relationship, the Licensed Company is responsible for safeguarding their data. Pelt8 is entitled to irrevocably delete all data one month after the contract's termination.
10.6. Agreement Breach
If the Licensed Company breaches any obligations under these terms and conditions or other contractual provisions, Pelt8 is authorized to temporarily or permanently restrict or block access to all Pelt8 services, including the Pelt8 account.
10.7. Cooperation with Pelt8
The Licensed Company shall cooperate with Pelt8 in the performance of this Agreement to the extent reasonable, at the Licensed Company's expense, and provide such advanced services and cooperation that Pelt8 may require in the performance of this Agreement.
Ensure the lawfulness of its use of the GTC and obtain consents and comply with information duties to the extent this is required by the law applicable to its processing of Licensed Company Data.
Terminate any use of the GTC in breach of legal or contractual provisions as soon as possible and to notify Pelt8 of any such breach upon becoming aware of it.
10.8. Unauthorized use
Unless expressly authorized by law, the Licensed Company may not:
Copy, modify, create derivative works of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Software.
Sell, resell, rent, transfer, distribute, or use any Pelt8 Platform for any purpose of any third-party outside of the Licensed Company. The Software may not be used as a backup or archive solution for Licensed Company Data. It is the Licensed Company's responsibility to ensure the availability of the Licensed Company Data as per its needs.
10.9. License and warranty
The Licensed Company authorizes Pelt8, on behalf of the Licensed Company, to use the Licensed Company Data in accordance with this Agreement and warrants that the corresponding processing of Licensed Company Data will not infringe any contractual or other third-party rights. If a third-party asserts a claim against Pelt8 based on a breach of this Agreement by the Licensed Company or a Licensed Company, the Licensed Company may assume the defence of the third-party claim and bring or settle any such action in its sole discretion, but will bear Pelt8’s reasonable costs incurred in connection therewith and will reimburse Pelt8 for any damages awarded and in force against Pelt8 as a result of the said breach.
Prices and Payment Conditions
11.1. Fee
The Customer (with the exception of Pelt8 Light access) is obligated to pay the agreed-upon fee outlined in their subscription or corresponding service description, plus VAT, to the Provider for the ordered services. The fees are due upon the signing of the agreement.
Either the Provider or the third-party with which the Customer signed a contract for services, as indicated under sections 5 or 6, will send an invoice for the contractual fee to the email address provided for billing.
11.2. Price Changes
The Provider is entitled to make changes to the fees and/or service content, reflecting technical progress and software development. However, any changes to the fees are only permissible prior to the renewal of a subscription level. For customers who have entered into multi-year agreements, no price changes will be allowed during the term of these agreements, ensuring financial predictability and stability for the Customer.
Should the Provider decide to revise the fees or service content, written notice will be provided to the Customer. If the changes result in a deterioration of the terms from the Customer’s perspective and the Customer does not wish to continue under the revised conditions, they are entitled to terminate the contract with extraordinary notice. The notice period for such termination is 15 days from the date the changes take effect.
11.3. Default of Payment
In the event of late payment, the Provider is authorized to temporarily suspend the Pelt8 account and access to all services provided by Pelt8. In this case, the agreed fee remains fully due during the suspension. Access will be restored upon payment of outstanding invoices.
The Provider is entitled to demand a default interest of 5% and a fee of CHF 5.00 for each reminder. In addition, the Licensed Company is obliged to compensate the Provider for any additional costs incurred, in particular, collection costs, court costs, and attorney's fees.
Pelt8 Warranties
Pelt8 warrants that the Software has the functionalities required for its intended use as outlined in this Agreement and can be used with a commercially available and up-to-date Internet browser.
Pelt8 warrants that the use by the Licensed Company of the Software in conformity with the GTC will not infringe any third- party proprietary rights. If a third-party makes any claims arising from a breach of this warranty, (i) Pelt8 must be informed immediately, (ii) Pelt8 may, at its own discretion, acquire the necessary third-party rights or modify the Software so that the third-party right is not infringed, provided that the usefulness of the Software for the Licensed Companies is not significantly reduced as a result. To the extent such measures would, upon Pelt8’s assessment, prove hopeless or commercially disproportionate, Pelt8 may discontinue the operation of the Software. In this case, the Licensed Company has the right to withdraw from the Agreement with immediate effect and to request in return any remuneration already paid on a pro rata basis; (iii) Pelt8 may assume the defence against the third-party claim and conduct or settle corresponding proceedings at its own discretion, but will bear the reasonable costs incurred by the Licensed Company in this respect and will reimburse the Licensed Company for any damages awarded and in force as a result of the corresponding infringement.
Liability
13.1. Limitation
Within the limits of legal provisions, the Provider disclaims all liability to the Licensed Company (or any third-party), especially with regard to the performance of its contractual and non-contractual obligations and the loss of data (including negligence). This disclaimer of liability also applies to damage directly or indirectly resulting from the use of the Software Pelt8.
If the Provider has engaged auxiliary persons to fulfil its contractual obligations, the Provider is responsible for the careful instruction of these auxiliary persons. Furthermore, warranties and liabilities are excluded to the extent permitted by law.
This disclaimer of warranties and liability applies, in particular, to wilful misconduct and gross negligence.
The Parties' liability for all direct damages occurring in a contract year shall be limited as follows: (i) to the total amount of payments to be made by the Licensed Company during that contract year, but not exceeding CHF 100,000; and (ii) for direct damages resulting from a loss of Licensed Company Data, twice that amount. Pelt8 shall only be liable for damages caused by it intentionally or due to gross negligence, unless otherwise specified in specific regulations or laws that supersede this limitation. In cases where applicable laws or regulations impose a higher liability standard, such laws or regulations shall take precedence over the limitations set forth in this Agreement, to the extent permitted by law.
The Parties disclaim any liability for indirect and similar damages. This includes lost profits, lost savings, and reputational harm, regardless of the cause of the damage.
The Provider is entitled to an immediate suspension of the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third-parties. Reasonable suspicion of unlawfulness and/or infringement exists, in particular, when courts, authorities, and/or other third-parties inform the Provider of such. The Provider shall promptly inform the Licensed Company of the removal and the reason for it. The suspension is to be lifted as soon as the suspicion is completely dispelled.
13.2. Subcontractors
Pelt8’s liability for subcontractors is excluded to the largest extent possible by law, subject to the condition that Pelt8 has implemented and executed the necessary diligence in the selection of subcontractors. Pelt8 shall undertake all reasonable efforts to ensure that subcontractors engaged in the provision of services related to this Agreement meet appropriate standards of competence, reliability, and security. However, in the event of any issues arising from the actions or omissions of subcontractors, Pelt8 shall, to the extent permissible by law, seek to address such issues promptly and in a manner consistent with the terms of this Agreement, while preserving its right to seek indemnification or remedies from subcontractors where applicable.
13.3. Indemnification
The Licensed Company shall indemnify, defend, and hold harmless the Provider from and against any and all claims, demands, losses, liabilities, damages, judgments, settlements, costs, and expenses (including reasonable attorney's fees) arising out of or in connection with any use of the SaaS service by the Licensed Company or its authorized users in violation of the terms of this Agreement, and shall reimburse the Provider for all costs incurred by the Provider due to potential legal infringements.
Term and Termination
14.1. Term
For Licensed Companies, this Agreement shall take effect upon the signature of the STANDARD SUBSCRIPTION FORM or any additional agreement governing the relationship between the two parties. It will remain valid for the minimum term specified therein, and its validity shall automatically renew as long as the contractual relationship has not been terminated in accordance with this section.
For Licensed Companies explicitly utilizing the Pelt8 Light version, this term shall commence upon the acceptance of this Agreement during the sign-up and the first login of the Customer, indicating agreement to the General Terms and Conditions. Unless otherwise specified in any additional contractual arrangement, the term of the Pelt8 Light version shall conclude after 6 months. Following this period, the Licensed Company shall no longer have access, unless expressly specified in a supplementing agreement.
14.2. Ordinary termination
Each Party is entitled to terminate this Agreement by delivering a termination notice to the other Party at least 30 days prior to expiry.
14.3. Extraordinary termination
This Agreement may be terminated with immediate effect (i) to the extent foreseen in this Agreement, or (ii) if the other Party breaches any material obligation without curing such breach within a period of 10 days thereafter (if such breach may be cured).
14.4. Termination notice
Termination pursuant to this Agreement shall in each case require a written notice sent by registered mail. In case of an extraordinary termination, the termination notice shall state the reasons in the case of an extraordinary termination.
14.5. Consequences of the termination
After termination of the contract, the Provider will store the Licensed Company's data for one month. After this period, the data will be deleted without further notice. The Licensed Company has no claim to a refund of the fees already paid.
The right to terminate the contract for good cause remains unaffected. In particular, the Provider is entitled to terminate the contract for good cause if the Licensed Company seriously breaches these GTC or if the Licensed Company's payment obligations are not met.
In the event of an early termination of a Multi-Year Commitment by the Customer, the Customer is required to pay 50% of the remaining Subscription Fees. To calculate the remaining Subscription Fees, first determine the number of years left in the contract term. Then, multiply this number by the annual Subscription Fee, taking into account any applicable discounts. The resulting amount will be invoiced by the Provider and is due within 20 days of the invoice date.
14.6. Return to Standard Rate
If the Agreement remains in place after the multi-year commitment term has ended, the subscription shall automatically revert to the standard, non-discounted subscription rate as specified by the Provider's then-current pricing structure.
Changes to the GTC
The Provider reserves the right to change these GTC at any time. Changes are communicated to the Licensed Company by email. If the Licensed Company does not object to the changes within 14 days of receiving the email, the changes are considered accepted. The email informing the Licensed Company about the changes contains information about the right to object and the consequences of non-objection.
Final Provisions
16.1. Form requirements
Any modification of this Agreement, including this written form requirement, must be made only in a written agreement. “Written“ within the meaning of this Agreement requires a text form with a handwritten or electronic signature, whereby in addition to qualified electronic signatures simple electronic signatures such as DocuSign, Adobe Sign, etc., shall suffice.
16.2. Set-off
Licensed Company shall not be entitled to set-off any amounts owed under or in connection with this Agreement (including, but not limited to, the Subscription Fee and any Implementation Price) against any other claims of the Licensed Company against Pelt8.
16.3. Non-solicitation
Licensed Company must not, without the prior written consent of Pelt8, during the validity of this Agreement and within the period of 12 months following its termination, engage, employ or solicit for engagement or employment, directly or indirectly, any employee or subcontractor of Pelt8 who has been involved in any way in the negotiation or performance of this Agreement.
16.4. Other Technology or Services
The Licensed Company acknowledges that they have not based their expectations on the future availability of any service offerings, technology, or the addition of enhanced or updated features or functionality of the Software.
It is important to note that the services provided under this Agreement do not encompass quality control, or audit support unless explicitly indicated otherwise in an additional agreement.
16.5. Notices
Pelt8 shall communicate announcements of general interest by e-mail or by posting on its website. Pelt8 shall provide Licensed Company with legal notices in writing by e-mail, mail or courier to the address provided by Licensed Company. Licensed Company shall immediately notify Pelt8 if Licensed Company’s address for notice changes.
16.6. Force majeure
To the extent that any delay or failure to perform this Agreement is caused by circumstances beyond the control of the party affected by such circumstances, such delay or failure shall not constitute a breach of this Agreement. The period for performance shall in such case be extended accordingly. This does not apply to events against which Pelt8 could have protected itself by appropriate technical or organizational measures and to payment obligations.
16.7. Third-Party Rights and Assignment
Licensed Companies other than the Licensed Company however have no direct claims against Pelt8 and are not third-party beneficiaries. The Agreement or any rights or obligations under the Agreement are not assignable without written consent of the other Party, except for an assignment of this Agreement by Pelt8 to one of its Affiliates, which shall not require the consent of the Licensed Company.
16.8. Choice of law
This Agreement is subject to Swiss law, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than the jurisdiction listed herein. Any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the city of Zurich, Switzerland.
16.9. Jurisdiction
Any dispute, controversy or claim arising out of or in relation to this Agreement, including regarding the (in)validity, enforceability, interpretation, execution, breach, modification or termination thereof, or non-contractual claims related to this Agreement shall be submitted to the exclusive jurisdiction of the courts of the city of Zurich, Switzerland.
Pelt8 AG
Butzenstrasse 1, 8038 Zürich