for deliveries and services by
bloosite AG, Oberfeldstrasse 12A, 8302 Kloten

Edition April 2013

1. Contractual bases

1.1 Conclusion and content of the contract
The contract between bloosite and the client comprises the offer by bloosite and its acceptance by the client. The instructions and orders from the client which have been accepted by bloosite also constitute a contract. These GTB form part of each contract between bloosite and the client. In the event of any inconsistencies, the contract will prevail over the GTB.

1.2 Addenda
Additional services and deliveries and any project-related divergences from the content of the GTB may be agreed upon in writing, in the form of addenda. These will constitute part of the contract.

1.3 The client’s specifications and GTB
The client’s specifications and terms of business will only be binding if this has been expressly agreed, in writing.

1.4 Changes to the contract
The contract and addenda replace all previous agreements on the same matter. Amendments to or cancellations of the contract or addenda may only be made in writing or in the same form as that in which they were concluded.

1.5 Assignment and offsetting of claims
The client may not transfer his contractual claims and the licenses to third parties or offset them against counterclaims, except with bloosite’s prior, written consent.

2. Deliverables by bloosite

2.1 Pre-sales phase
To the extent that bloosite supports the client with the analysis of his operating requirements or with product selection, without receiving separate remuneration, this will be done without any contractual obligation and without liability. If, however, a separate contract is concluded regarding the advice, with appropriate remuneration, bloosite will be liable under the terms of the present GTB.

2.2 Specification of deliverables
Each individual service (consulting, programming, maintenance etc.) or delivery (hardware, software) is conclusively specified in the corresponding contract and the manufacturer’s product documentation.

2.3 Third-party products
In the first instance, the manufacturer’s delivery, license and warranty terms apply to the delivery and licensing of a third party’s (manufacturer’s) products. These terms will be made available to the client in a suitable form.

2.4 Subcontracting
bloosite may arrange for the agreed services to be provided by subcontractors and gives the same guarantee, under the terms of this contract, in respect of such services as it does for its own services.

2.5 Services: Law of agency/law on contracts for work and services
The services are provided as professionally skilled activities pursuant to the law of agency or under a contract for work insofar as the contract describes a deliverable to be delivered in the form of work.

2.6 Software, licenses

After paying the license fee on the machine-readable code on the licensed software, the client acquires a non-exclusive, non-transferable right to use the software on his system. This right of use is limited to the processing of the client’s own business data and restricted to the agreed number of users and the other parameters upon which the price is based. In the case of third-party products, any more restrictive license terms imposed by the manufacturer remain reserved. The client will permit checks to monitor compliance with the terms of the license. The license may be revoked in the event of serious or persistent violations.

2.7 Hardware, transfer of ownership
Ownership of hardware will not pass to the client until payment has been made in full. Until that time, bloosite may also assert its ownership in relation to third parties and cause a reservation of title to be entered in the register, which the client hereby authorises it to do.

3. Cooperation by the client

3.1 Obligations of the client
In order that bloosite can perform the services in the proper manner, the client will put in place the necessary administrative, organisational and technical preconditions, including: designating a project manager who works for the client, communicating the operating requirements and technical parameters, evaluating the numerical data, providing and operating connections and terminals for on-site and remote work, commenting on the concepts presented, reports, questions and deliverables, providing test data, participating in acceptance procedures (if such a procedure is required), and backing up programs and data.

3.2 Omissions by the client
If the client neglects his duties to cooperate, bloosite may alter the deadlines and bill the client for any additional costs incurred.

4. Delivery, installation, acceptance

4.1 Delivery
Software, service deliverables and documentation may be transmitted to the client on data media or by remote data transmission, or made available to him online, according to bloosite’s preference. Hardware is delivered at the client’s expense and risk, to the client address mentioned in the contract.

4.2 Installation and instruction
Installation is undertaken by bloosite, if this has been specifically agreed in the contract. The associated additional costs are borne by the client, in particular the costs of adapting the technical environment in place at the client’s premises and configuring interfaces, data transfer, parameterisation, client training and similar activities.

4.3 Acceptance with report
bloosite will usually invite the client to carry out the acceptance procedure and will draw up a report on this (even if the client does not participate). If defects come to light during the acceptance process as a result of which the acceptance of the products and services can be deemed unreasonable, bloosite must be given the opportunity to rectify those defects within an appropriate period. The acceptance process will then be repeated. Defects which do not significantly impede operation do not constitute an obstacle to acceptance. In such an event, bloosite and the client will agree a time scale within which these defects will be rectified by bloosite.

4.4 Acceptance without report
If no acceptance report is drawn up (e.g. in the case of small deliveries), the deliveries and services will be deemed to have been accepted unless the client makes a written complaint, within one week of receipt of the delivery or service (no later than two weeks after notification of readiness for dispatch), regarding the quantity, execution or visible defects.

4.5 Commencement of operation
Insofar as the client commences productive operation, the deliveries and services will automatically be deemed to have been accepted. The rectification of defects under the warranty or during maintenance remains guaranteed.

4.6 Other claims of the client

The client’s rights and claims in the event of defects of any nature are conclusively regulated in clauses 7.1 to 7.7.

5. Maintenance and support

5.1 Objectives of maintenance
For software, the purpose of maintenance is to maintain the technical standard and restore operational capability in the event of software-related errors. For hardware, the purpose of maintenance is to maintain and repair or replace the hardware in the event of technical faults. In all instances, no guarantee is given of uninterrupted operation, permanent system compatibility or the immediate rectification of defects. bloosite may offer a workaround until the fault(s) has/have been rectified.

5.2 Maintenance options
The details of maintenance are set out in the maintenance agreement or in the manufacturer’s documents. The availability of maintenance, response times, system availability and duration etc. depend on the options chosen.

5.3 Upgrades and new versions
The delivery of upgrades or new versions with enhanced functionalities is only included in the maintenance charge if the maintenance agreement expressly states this.

5.4 Causes of faults, operating resources, exchange
The replacement or repair of hardware or software which has been damaged due to external influences and of consumables and parts subject to wear and tear (including batteries) is only included in maintenance if this has been agreed in the maintenance agreement. bloosite may, at its discretion, replace faulty parts with components that have the same function. Removed parts will become bloosite’s property.

5.5 Maintenance requirements
Maintenance covers the unaltered hardware and software, which has been fully and regularly maintained, when used at the location mentioned in the contract and in accordance with the configurations and conditions of use recommended by bloosite or the manufacturer. bloosite may require other components of the client’s whole system to also be professionally maintained, require the client to permit changes to be made free of charge in order to improve reliability and require the client to use the latest release after an appropriate transitional period. Before reporting a fault, the client will use the tools provided in order to identify the problem and diagnose the fault. The client guarantees access to the item to be maintained and will, at his own expense, provide the facilities for remote maintenance.

5.6 Additional maintenance costs
In the event of intervention by the client or third parties, faulty operation or erroneous fault reports, causes of faults lying outside the components maintained by bloosite, deviations from the maintenance requirements or neglect of the client’s duty to cooperate, bloosite may either suspend maintenance or make an additional charge to the client, at the respective applicable rates, for the services or deliveries necessitated by these reasons or performed outside bloosite’s normal hours of business.

5.7 Exclusions from maintenance
The following are not covered by the maintenance services and will be billed separately to the client (non-exhaustive list): maintenance of upgrades and options not supplied by bloosite, maintenance of electrical installations, rectification of faults caused by external influences for which bloosite is not responsible, services in connection with a change of hardware location and restoration and back-up of data and applications.

6. Prices, payment terms

6.1 Prices and additional costs
If no price is set in the contract, the list prices of bloosite or the manufacturer apply. The costs of delivery and packaging, taxes (in particular value-added tax) and any levies (such as the disposal fee) are borne by the client, in addition to the price. For installation and instruction, see clause 4.2. Commission, early payment discounts, discounts and other deductions are permitted only if expressly agreed.

6.2 Price changes
When invoices are issued periodically (e.g. licenses, services at cost), bloosite may revise the prices at any time to reflect changed circumstances, giving three months’ notice. For maintenance, price increases are permitted at the end of each contractual year. Provided the price increase does not exceed general inflation, the client has no right of cancellation.

6.3 Billing according to expenditure
Services are charged according to actual time spent. Travelling time is charged in accordance with bloosite’s respective price catalogue. Out-of-pocket and incidental expenses (in particular travel expenses, accommodation and food) and the costs of the resources used specifically for a project (hardware, licenses, database fees etc.) will be additionally billed to the client.

6.4 Flat fees, cap on expenses
Flat fees (fixed prices) must be expressly agreed as such in the contract. A cap on expenses does not constitute a fixed fee. Rather, it denotes the fact that, when the cap is reached, the client may decide not to continue the project without compensation being payable to either party.

6.5 Terms of payment and default
The terms of payment are set out in the contract. If the contract does not stipulate the terms of payment, the deliveries and services are payable at the time of conclusion of the contract. The client will be in default after the expiry of a period of 30 days from the invoice date, without the need for a reminder, and will owe default interest at a rate equal to the standard rate of interest charged by banks on overdraft facilities, but of at least 6% (p.a.). All other statutory rights in regard to default remain reserved.

7. Dates, warranty, liability

7.1 Obligation to give notice of defects
In the event of late or defective deliveries and services, the client must notify bloosite immediately, in writing, of its precise complaints. A divergence from the promised characteristics or unsuitability for the use described in the contract will constitute defects.

7.2 Dates
The dates indicated in the contract are planning guides that have been calculated in a responsible manner. Insofar as binding deadlines must be met, these must be explicitly designated in the contract as firm deadlines. If such firm deadlines are not met, the client may schedule an appropriate extension in writing and, if that extension passes unused, withdraw from the contract with respect to the relevant partial performance. All deadlines must be extended accordingly if preliminary work by the other party is not accomplished on time and in the event of extraordinary disruptions (e.g. force majeure, regulatory action, strike, or the unavailability of power, telecommunications or transport routes). bloosite’s liability for losses due to delays is conclusively regulated in clause 7.7.

7.3 Rectification of defects
If possible, defects will be rectified during maintenance. bloosite will rectify the defects at no cost to the client by making repairs or undertaking a substitute delivery. The client bears the costs of dismantling and assembly, the transportation of replacement parts and of necessary adjustments, unless a maintenance agreement has been concluded. If, following a replacement or repair, significant functions cannot be used in accordance with the contract, the client may inform bloosite by registered letter that he is cancelling the contract in respect of the defective partial delivery, if a final extension of time passes unused. Substitute performance by third parties or a reduction in the price is only permitted if bloosite has given its prior, written consent. bloosite’s liability for compensation is regulated definitively by clause 7.7.

7.4 Warranty for third-party products
The warranty and guarantee terms issued for third-party products by the manufacturer replace the rights arising from defects described here.

7.5 Warranty period, lapse of warranty
Unless otherwise provided, the warranty period is 12 months from delivery. The warranty period for replaced or repaired products expires concurrently with that for the products originally delivered, but will as a minimum be one month from the date of replacement or repair. The warranty will cease to apply when the warranty period elapses and in the event of interference with the hardware or software by the client or third parties, in the event of external damage, handling errors and in the event of conditions of use or operation which contravene the product documents.

7.6 Guarantee of rights
If a third party challenges the client’s rights to own or use the contractual deliverables, the client leaves it to the manufacturer and bloosite to mount a defence and to bring about a situation which no longer violates the third party’s rights. If this situation cannot be achieved at a reasonable cost, the contract will be cancelled in respect of the partial delivery concerned. In all these circumstances, bloosite’s liability to pay compensation is regulated by clause 7.7.

7.7 Liability of bloosite

bloosite is liable for culpably caused direct personal injury and property damage in accordance with the statutory provisions on third-party liability, up to a maximum of 1,000,000 francs, unless bloosite has arranged more extensive insurance cover. Subcontractors (or their insurers) are solely liable for personal injury or property damage caused by said subcontractors, subject to the above limitations of liability. All further or other liability on the part of bloosite and its employees and subcontractors is expressly excluded, to the extent permitted by law. The client is responsible for data security, the provision of standby solutions and the results achieved when using the services delivered. Consequently, bloosite cannot be held liable for loss of data, pure financial losses, indirect, collateral and consequential damage, and loss of revenue or unrealised savings.

8. Property rights

8.1 Intellectual property
All intellectual property rights will remain vested in bloosite or the manufacturer. The client will not acquire any rights to programs, topographies of semiconductor products, inventions, copyrights, trademarks or rights to the design or expertise, other than those arising from the client’s own use of the deliverables under the contract (clause 8.4 remains reserved). The client may not transfer the acquired rights of use to third parties.

8.2 Software protection
The client receives the licensed programs in machine-readable code. The client is prohibited from decompiling, deciphering the source code, modifying and further developing the software, unless expressly permitted by law.

8.3 Copy protection
The client may make a backup copy of the licensed programs and the documentation received. The non-permanent copies created during processing and provided for by the program are also permissible. The client is obliged not to make any further copies and to appropriately protect the programs and documentation against unauthorised inspection or copying by third parties, and against loss. The client must notify bloosite immediately of any illicit knowledge gained by third parties.

8.4 Customised services
The results of customised services (including software development) rendered for the client will pass to the client’s ownership, with the transferable property rights, once full payment has been made. bloosite may continue to freely use the ideas, processes and insights used in the development process, without incurring any costs.

8.5 Confidentiality
bloosite and the client are obliged to treat in confidence the business secrets of the other party of which they gain knowledge in the performance of the contract and to suitably protect them against any unauthorised access by third parties.

8.6 Non-enticement clause
The client will refrain from enticing any persons who are used by bloosite in the performance of the contract. He will not use the services of such persons other than through bloosite. These obligations apply during the use of such a person for the client and for one year thereafter. A contract penalty of one year’s salary of the person concerned is payable in the event of violation of this clause.

8.7 Data privacy
Both parties will observe the Swiss Data Protection Act. The client himself is responsible for the protection and security of the third-party data processed on his systems (including data relating to his staff). The client agrees that data relating to him and his staff may be forwarded by bloosite to domestic or foreign group companies, agents, licensers, banks, etc. for processing.

8.8 Export restrictions
Insofar as the export from Switzerland of deliveries and services rendered by bloosite is subject to legal regulations, the client is obliged to abide by the relevant rules and to also impose these obligations upon its legal successor.

9. Duration of the contract

9.1 Term of the contract
The contract for deliveries and services will, in principle, remain in force until it has been performed. Contracts for recurring services (e.g. maintenance) will specify a minimum term and a notice period. Unless otherwise agreed in the contract, maintenance contracts have a minimum term of three years and a notice period of six months. If such a contract is not terminated, in writing, observing the notice period to the end of the minimum term, the contract will be automatically renewed for one year. At the end of each renewal year, a notice period of three months or automatic renewal for another year will apply.

9.2 Continuation of individual provisions
The provisions of the contract and the GTB regarding liability and guarantees, property rights and the applicable law and place of jurisdiction will continue to apply indefinitely after the expiration of the contract.

9.3 Circumstances during the notice period
For maintenance and services, the average contractual remuneration must also be paid during the notice period, even if the client does not use the services. The same applies to premature termination by the client, for the entire remaining term of the contract. Modified rules on the financial consequences of early cancellation may be made in the contract.

9.4 Termination of contracts in special cases
Contracts for one-time fee software licenses may be terminated by the client at any time but may only be terminated by bloosite if the client is in violation of the applicable conditions. In both instances, there will be no refund of the license fee. Contracts for the delivery of hardware may not be terminated. bloosite’s rights in the event of late payment or insolvency on the part of the client are reserved.

9.5 Insolvency of the client
If bankruptcy or debt rescheduling proceedings are initiated against the client or if licenses are to be seized, bloosite may terminate all contracts with immediate effect and terminate all licenses without notice, without paying any compensation to the client. Compensation claims by bloosite remain reserved.

10. Applicable law and jurisdiction

10.1 Choice of law
This contract and all addenda are subject to Swiss substantive law to the exclusion of the ‘Vienna Convention’ (United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980).

10.2 Place of performance
The place of performance is the registered office of bloosite AG in Kloten.

10.3 Jurisdiction
The place of jurisdiction for all disputes between the parties is Buelach ZH. bloosite may also bring a lawsuit against the client at the client’s domicile.