1. Content of the contract
1.1 The customer is a Swiss corporation, corporation in incorporation or limited liability company.
1.2 Aequitec provides one or more of the following services for the customer (hereinafter also referred to as the 'Application') in accordance with this contract using one or more software-based, native or web-based application(s)
- Maintenance of the share register
- Organization of general meetings
- Design and management of employee benefit plans
- Implementation of capital increases
- Implementation of share transfers
- Processing of corporate actions
The customer can select these services by using the application.
2.1 The services provided by Aequitec are specified in detail in the product package(s) selected by the customer. The specifications can be viewed electronically and downloaded as a document during the selection of the product packages - namely at the web address www.aequitec.ch - and the customer agrees to the specifications relating to the respective product package with the electronic selection of the corresponding product package in accordance with Clause 1.2. An electronic selection is equivalent to a written selection of the specifications. If the contract is signed in writing, the specifications are attached to the contract as a document and the customer agrees to the specifications by signing this contract.
2.2 The services to be provided by Aequitec relate exclusively to the services described in the product package(s) used by the customer, including the respective specifications. However, the parties are free to agree in writing on the provision of further services, whereby e-mails are sufficient on the part of the customer, whereas Aequitec must agree to such a change with a handwritten signature or qualified electronic signature (cf. Art. 14 CO).
2.3 On the website www.aequitec.ch, the customer can also obtain so-called 'shared services' from third-party providers by selecting them electronically and agreeing to the terms and conditions of the third-party provider's 'shared services'. These terms and conditions also include the fees for the shared services. The contract for the shared services is concluded exclusively between the customer and the third-party providers, and the customer is solely responsible for the relationship with the third-party providers, including their selection, instruction and monitoring. Aequitec expressly rejects any liability in connection with the shared services.
3.1 The customer pays Aequitec a fee for the provision of the services in accordance with Section 2.1. in accordance with the price model selected by the customer. The fee includes (i) the provision of the application and (ii) the provision of the services in accordance with the product package(s) selected by the customer. The customer can select the price model both in writing and electronically via the website www.aequitec.ch and download the document there. An electronic acceptance is equivalent to a written acceptance of the price model.
3.2 Other services agreed between the parties (see section 2.2.) will be invoiced separately to the customer on a time and material basis, unless the parties have agreed another type of compensation in writing, whereby e-mails satisfy the written form requirement. The applicable hourly rates charged by Aequitec for these services are available on the website www.aequitec.ch.
3.3 The fees for the 'shared services' (see section 2.3.) are also charged by Aequitec, whereby Aequitec forwards the corresponding fees paid by the customer to the third-party providers.
3.4 Aequitec charges for its services (and any third-party services, see Section 3.3.) either monthly, quarterly or annually, depending on the price model selected by the customer in accordance with Section 3.1. Aequitec's invoices are payable within 30 days of the invoice date (due date).
4.1 All agreements between Aequitec and the customer, represented by the authorized signatory(ies) listed in the commercial register, require the consent of the respective contracting parties in order to be valid and only come into force once they have been signed by both contracting parties. This service agreement can be signed either by hand or digitally (i.e. electronically via the website www.aequitec.ch by clicking on 'I accept'). The two forms of consent are equivalent for the purposes of concluding this service contract and Aequitec is not obliged to provide services to the customer before the valid conclusion of the service contract. Nor is Aequitec obliged to provide the customer with further services agreed between the parties until these have been legally agreed between Aequitec and the customer, represented by the person(s) listed in the commercial register as authorized signatory(ies), in accordance with Clause 2.2.
5. Obligations of Aequitec
5.1 In the opinion of Aequitec, the individual services provided by Aequitec and the individual processes that can be carried out via the application comply with Swiss law. However, the customer remains responsible for complying with Swiss law; and Aequitec declines any liability for a breach of Swiss law by the customer. Aequitec is also under no obligation to inform the customer of any violations of Swiss law; however, Aequitec rejects any liability for a violation of Swiss law by the customer, in particular if Aequitec has informed the customer of a corresponding violation due to a specific action by the customer and the customer nevertheless carries out this action. Aequitec's service represents a technical organizational aid. Accordingly, Aequitec assumes no responsibility for the content parameters of the customer's processes that can be carried out via the application.
5.2 Aequitec aims to ensure that its application-controlled services are available at least 95 percent of the time each month during the customer's regular office hours.
5.3 Aequitec only provides those services that are specified in the product package(s) selected by the customer. Aequitec is released from all obligations that are not part of the specifications in the product package(s).
5.4 If Aequitec identifies technical problems in connection with the provision of the services for which it is not responsible, it will inform the customer as soon as possible after becoming aware of this situation and submit proposals for solutions to the customer to the best of its knowledge and belief. The further course of action shall then be determined jointly by the parties. As long as no agreement has been reached between the parties, Aequitec is not obliged to provide additional services. Aequitec provides the agreed services in the existing modus operandi until further notice.
5.5 Aequitec is authorized to provisionally suspend services under this service contract if (i) the customer fails to pay undisputed invoices after expiry of (a) the payment deadline in accordance with Clause 3.4. and (b) a deadline of a further 30 days set by Aequitec for the customer in writing, or (ii) the customer's solvency is at risk, in particular in the event of liquidation or bankruptcy proceedings against the customer or the conclusion of a composition agreement with creditors or comparable constellations.
6. Obligations of the customer
6.1 The customer undertakes to fulfill the obligations to cooperate specified in the respective product package. In particular, he undertakes to provide Aequitec, without being asked and free of charge, with a copy of the respective valid articles of association and foundation deeds and, if available, the existing share register. In addition, the customer undertakes to provide, at Aequitec's request, all further information and documents which are reasonably necessary for the provision of services by Aequitec.
6.2 As long as and to the extent that the customer has not provided Aequitec with all documents in accordance with Clause 6.1, Aequitec is not obliged to provide the customer with services in accordance with this contract.
6.3 The customer undertakes to pay all contractually agreed fees and proven expenses and costs on time.
6.4 The customer undertakes to always use or implement the 2-factor authentication procedure and/or further security instructions from Aequitec in communication with Aequitec and/or its shareholders for the purpose of authentication. Aequitec excludes any liability for unauthorized access by third parties if the customer does not apply or implement these standards.
7. Duration and termination of the contract
7.1 This contract enters into force on the date of signature or electronic conclusion and has an indefinite term. Depending on the price model selected in accordance with Section 3.1, it may be terminated by either contracting party either with a notice period of 7 days monthly, to the end of a calendar month, or with a notice period of 30 days annually, to the end of a contractual year. Notice of termination must be given in writing, whereby a handwritten signature or a qualified electronic signature (see Art. 14 CO) is required.
7.2 Aequitec may terminate the present service contract for good cause, in particular if (i) the customer fails to settle undisputed invoices after expiry of (a) the payment deadline in accordance with clause 3.4. and (b) a further 30-day deadline set by Aequitec in writing, or (ii) the customer's solvency is jeopardized, in particular in the event of liquidation or bankruptcy proceedings being initiated against the customer or the conclusion of a composition agreement with creditors or similar situations.
7.3 The customer's data available at the end of the contract will be returned to the customer either as a paper printout or on a suitable data carrier and deleted from Aequitec's systems. Deviating instructions from the customer and/or statutory retention obligations remain reserved.
8.1 Aequitec is liable for damages incurred by the customer as a result of grossly negligent or willful breach of its obligations under this contract. If Aequitec calls in third parties to provide the services, Aequitec is also liable for their careful selection and instruction. However, Aequitec accepts no liability for shared services which are not services provided by Aequitec but by third parties (see Section 2.3.).
8.2 Furthermore, any liability of Aequitec or its auxiliary persons is excluded.
- In particular, Aequitec is not liable for indirect damages, lost profits, lost goodwill or reputation, nor for damages caused by deficiencies in the content or organization of the customer's general meetings.
- Furthermore, Aequitec is not liable in particular for the technical availability of your application at all times. The customer is aware that the technical availability depends on his own electronic infrastructure, in particular on the terminal equipment used, the stability of the Internet connection and the Internet/mobile service provider selected. Aequitec will take reasonable measures to ensure satisfactory technical availability and timely delivery of the services.
- The accuracy of information transmitted to Aequitec by the customer or third parties or of information transmitted by the customer to third parties (in particular to shareholders) via the application is the sole responsibility of the customer. Accordingly, Aequitec accepts no liability whatsoever for damages resulting from the processing of incomplete or incorrect information originating from the customer or third parties (in particular shareholders).
- In addition, Aequitec is in no case liable if it is prevented from the timely or proper fulfillment of services for reasons for which it is not responsible. The deadlines for performance are extended in accordance with the duration of the impact of the circumstances for which Aequitec is not responsible.
8.3 The customer indemnifies Aequitec in full for third-party claims (in particular from shareholders), unless these third-party claims are due to a grossly negligent or intentional breach of Aequitec's obligations under this contract or to a careless selection and instruction of third parties that Aequitec has called in to provide the services.
9.1 Aequitec declares that it is either the owner of all rights (including intellectual property rights) in the application or that it has acquired the contractual authorization to make the application available to the customer.
9.2 The customer has no rights to the application. Aequitec remains the owner of all rights in the application vis-à-vis the customer. The customer is contractually authorized to use the application (license) as expressly permitted in the service contract. The customer acknowledges that all rights (including intellectual property rights) in the application remain with Aequitec.
9.3 The rights to work results resulting from the services provided by Aequitec remain fully with Aequitec. The customer only acquires the right to use these for the duration of the contract in order to receive the services.
10. Confidentiality and data protection
10.1 The documents and information exchanged in connection with the conclusion and performance of this agreement shall be treated confidentially by the parties. Disclosure to the public, third parties or authorities is only permitted with mutual written consent, subject to statutory or stock exchange regulatory obligations to provide truthful information. This duty of confidentiality shall survive the termination of the contractual relationship between the parties.
10.2 Each party may disclose information communicated by the other party if it (i) was legitimately known to it before it received it from the other party; (ii) becomes/was publicly known through no wrongdoing of its own; (iii) was independently learned by the other party.
10.3 The provisions of this Agreement shall supersede and replace any prior non-disclosure agreements ('NDAs') between the parties if and to the extent that they conflict with the provisions of this Agreement.
10.4 The customer is aware that electronic communication (in particular e-mail traffic) on the transmission route ('in transit') is not protected against unauthorized access by third parties. If the customer sends unencrypted communication to Aequitec, he accepts risks or confidentiality and Aequitec is not responsible for unauthorized access to data by third parties 'in transit'.
10.5 Aequitec complies with all relevant provisions of the Swiss Federal Act on Data Protection ('FADP'). In particular, it undertakes to only ever collect and store personal data in a lawful and proportionate manner and to process it in accordance with the order or instructions. Personal data is always protected against unauthorized access by appropriate technical and organizational measures. If Aequitec cooperates with third party providers for the provision of services, Aequitec will take appropriate contractual precautions with them to ensure that personal data is protected in accordance with the FADP. Should Aequitec transfer personal data to recipients abroad who cannot guarantee adequate data protection, Aequitec will make appropriate contractual arrangements with them to ensure that personal data is processed by the respective recipients under the same standards as in Switzerland. At the request of the customer, the parties can conclude a more detailed so-called order data processing contract ('ADV').
11. IT security
11.1 Aequitec undertakes to store customer data only in Switzerland. Aequitec guarantees appropriate IT security in relation to the application, in particular data security and access protection in accordance with the current state of the art.
11.2 However, Aequitec cannot assume any guarantee for the electronic infrastructure of customers and shareholders - in particular the end devices used, the stability of the Internet connection and the selected Internet/mobile service provider. The customer is aware of the risks - in particular with regard to data security and access protection - that may arise from the use of the corresponding electronic infrastructure.
12. Partial invalidity
12.1 Should parts of this contract or an appendix to it be or become invalid or otherwise legally ineffective, the remainder of the contract shall continue to apply. The legally invalid parts shall be replaced by legally valid provisions in accordance with which the purpose intended by the legally invalid parts is achieved as far as possible.
13. Amicable settlement
13.1 In the event of a legal dispute in connection with a contract, both contracting parties undertake to first exhaust all possibilities of arbitration. In particular, they undertake to at least give the other party the opportunity to submit a written statement before bringing the matter before a judge.
14. Further applicable provisions / amendments
14.1 In addition to the present service contract and for issues not expressly regulated in this agreement, additional, specific technical services in the application can be agreed via online contract conclusion, for example so-called End User License Agreements ('EULA') for the installation of native or web-based applications. These additional agreements are to be understood as supplements to this service contract and become an integral part of it. In the event of any contradictions between these supplementary agreements and the service contract, the latter (including its appendices) shall take precedence in principle - subject to specific provisions which expressly override provisions of the service contract.
14.2 Aequitec expressly reserves the right to amend the provisions of the service contract and/or the supplementary contracts from time to time. Such changes will be communicated to the customer in writing at least one month before the start of the notice period. If no notice of termination is given by the Client thereafter, the amended contractual conditions shall be deemed to have been approved. Such contract amendments can also be communicated to the customer electronically by e-mail. Electronic notification is equivalent to written notification by post.
15. Applicable law and place of jurisdiction
15.1 This Service Agreement and all claims in connection with it shall be governed by Swiss substantive law (without reference to conflict of laws provisions). The courts of the city of Zurich (Zurich 1) shall have exclusive jurisdiction for all disputes arising from or in connection with this contract.