General Terms and Conditions for Customers

of Cassiber AG for the use of the remote access software and customer platform and for other related services

I. AREA OF APPLICATION AND SCOPE

1. These General Terms and Conditions (the “AGBs") govern the legal relationship between Cassiber AG, Technoparkstr. 1, 8005 Zurich (hereinafter “Cassiber"), and its customers in respect of the use of the provided remote access software and customer platform and for other services related to the use of the platform (hereinafter “Additional Services").
2. The German version of the present AGBs shall in all instances take precedence over a translation of the AGBs. A faulty translation of the AGBs or possibilities of interpretation caused by the translation shall have no effect on the rights and duties of the customer or of Cassiber.
3. These AGBs have priority over previously stipulated general terms and conditions or the customer’s terms and conditions. Unconditional acceptance of the subject matter of the contract by Cassiber does not constitute acknowledgment of the customer’s general terms and conditions.
4. The customer’s acceptance of an offer or receipt of services constitutes his acknowledgment of these AGBs. Deviations from the AGBs must be stipulated in writing.
5. The customer and Cassiber (hereinafter collectively the “Parties") therefore stipulate as follows:

II. PERFORMANCE BY CASSIBER

1. Cassiber grants the customer the nonexclusive right to use the software provided on its platform with due observance of the system requirements and terms of use specified by Cassiber (hereinafter “Contractual Use") for the customer platform to be established on the Cassiber server platform and to grant the number of the customer’s users specified in the agreement access to the customer platform. The Contractual Use can be further specified and communicated on the platform outside of and in addition to these AGBs.
2. Cassiber shall provide the customer with the software, including the appurtenant user documentation concerning the remote access via a telecommunications connection, i.e., on demand.
3. From the time that Cassiber makes the customer platform accessible to the customer, Cassiber is entitled to provide, at its own discretion, for a test phase for use of the software. After the conclusion of the test phase, Cassiber shall inform the customer of the evaluation of the results by email.
4. The software shall be operated on a Cassiber server and be made available for use by the customer during the stipulated period of use. The customer can use the customer platform provided by Cassiber to generate information for the involvement of various stakeholder groups (e.g., contractual partners, employees, customers/consumers). The customer platform is fully embedded into the Cassiber platform and contains a standardized Cassiber layout. At the customer’s request, Cassiber shall provide the customer with a customer platform with an individualized layout incorporating any customer logos and brand names. The specific configuration shall be executed in consultation between the Parties.
5. As operational resources allow, Cassiber shall endeavor after completion of the test phase and during the stipulated period of use to offer the services around the clock free of downtime and interruptions. Maintenance, repairs, expansions of services, etc. may necessitate temporary interruptions in service. The customer shall be given advance notice of such interruptions in service whenever circumstances allow. Cassiber shall make every effort to remedy unanticipated interruption in use as quickly as possible.
6. If Cassiber develops new applications and/or additions to existing applications (hereinafter collectively “Features"), these may be offered to the customer at any time. The customer has no entitlement to use Features developed or launched by Cassiber after formation of the agreement. A test phase may also be provided for individual Features.

III. RIGHTS AND DUTIES OF THE CUSTOMER

1. The customer is entitled and obligated to use the latest version of the software. If use of the latest version of the software is not possible owing to the customer’s technical system requirements, the customer is entitled to terminate the agreement prematurely. Cassiber is in no case obligated to adapt the latest version to the customer’s system configuration or to provide the customer with the version that is compatible with his system for the remaining term of contract. In the event of premature termination by the customer owing to a lack of system compatibility with the latest software version, Cassiber shall issue to the customer a pro rata refund of any prepaid fees for canceled performance. The customer’s right to use the software and the user documentation ends upon his exercise of the right to terminate.
2. Cassiber is not obligated to inform the customer of updates to the software if such updates do not result in any curtailment of the customer’s existing use. If improvements or adaptations in the software result, in Cassiber’s estimation, in curtailment for the customer, Cassiber shall inform the customer of the software upgrade at least 10 days in advance by email. If the customer does not terminate the agreement in writing within 10 days of receipt of the email, he tacitly accepts the software upgrade. In the event of premature termination by the customer owing to a curtailment of the existing use, Cassiber shall issue to the customer a pro rata refund of any prepaid fees for canceled performance. The customer’s right to use the software and the user documentation ends upon his exercise of the right to terminate.
3. The Contractual Use of the software includes the right to use the user documentation. It is assumed that the customer can use the software without further training or other support provided by Cassiber. In the absence of a separate stipulation to the contrary, Cassiber therefore assumes no training or support obligations.
4. The customer can use the customer platform provided by Cassiber to generate information for the involvement of various stakeholder groups and to that end grant the number of users specified in the agreement access to the customer platform. The customer shall inform Cassiber of any change in the number of users.
5. If the customer desires an individualized customer platform, he shall provide Cassiber with the graphics, logos, etc. necessary for the individualized layout in a timely fashion. The customer grants to Cassiber for the term of contract the rights to use these graphic elements necessary for incorporation into the customer platform and vouches to Cassiber that he is the holder of all rights to said graphic elements and that their use on the customer platform does not infringe any third-party rights.
6. The customer bears exclusive responsibility for the use of the customer platform by the users from his stakeholder groups. In particular, Cassiber has no obligation to screen or monitor use of the customer platform by such users and it denies all liability for any loss that the customer may suffer through use of the customer platform by the users from his stakeholder groups. It is the customer’s responsibility to arrange the legal relationship between him and said users, especially in respect of information conveyed by them. Cassiber shall enable the customer to show his respective guidelines for users on the platform after login and/or to make them visible on a customer-specific basis.
7. In the relationship between Cassiber and the customer, ownership of the information input by the stakeholder groups is vested in the customer if the customer is clearly identifiable as the addressee at the time of transfer of the information and if he has a valid customer agreement with Cassiber. Information is understood to mean all written and oral data stored on the platform, regardless of its form of transfer, storage, or organization.
8. If the addressee of information is not clearly identifiable or if there is no agreement between the addressee and Cassiber, the information provider is considered the owner of the information if that provider is identifiable as such at the time of transfer. If the information provider cannot be clearly identified via the platform, then Cassiber is considered the owner of the information.
9. The Parties acknowledge that all current and future intellectual property rights in connection with use of the platform, in particular copyrights, be they either original or derivative, become the property of the person identified as the owner pursuant to the preceding provisions. The customer can provide for contrary provisions in his guidelines in favor of his users.
10. If the customer issues guidelines that he makes accessible on the platform to the users from the stakeholder groups, then the customer is obligated to comply with said guidelines. Cassiber is entitled, but not obligated, to review compliance with the guidelines, in particular if individual users draw Cassiber’s attention to a possible violation of the guidelines. In general, however, Cassiber has no obligations or duties in respect of inspection.

IV. DATA STORAGE/DATA BACKUP

1. Data produced in connection with use of the software and customer platform are stored on the Cassiber servers. Data are defined as all data generated and directly input through use of the system by the customer and the users of the customer platform (ideas, user information, etc.). The storage capacity available to the customer depends on the product selection and/or the stipulation between the Parties.
2. The customer can access the stored data at any time within the stipulated periods of use. The customer bears exclusive responsibility for processing the data except in cases in which data processing is contractually assigned to Cassiber.
3. Cassiber is responsible for backing up the customer data stored on the data servers. Data are backed up daily, so that the data for the previous day are always kept until the subsequent data backup is performed.
4. The customer is entitled, at his own expense and risk, to export and store the data stored on his customer platform. Cassiber is at no time obligated to surrender a copy of the data stored on the data server to the customer, including at the termination of contract. At the customer’s request and upon payment of a separate fee, Cassiber can back up and turn over the customer’s data on a suitable data medium.
5. Cassiber is entitled to delete the customer’s data immediately at termination of contract and without further advance notice. Pursuant to a separate stipulation, the data are preserved and made available again after an interruption of contract. The preservation and the restoration of the data are likewise performed as paid Additional Services for a fee.

V. DATA PROTECTION

1. The customer is responsible for compliance with provisions of law pertaining to data protection if personal data are processed in connection with a contractual relationship subject to these AGBs. The customer is obligated to declare to the users of his customer platform that a corresponding data protection statement is applicable or to confirm compliance with the Cassiber data protection statement. The Cassiber data protection applies to the use of data by Cassiber.
2. Cassiber shall process the data conveyed by the customer only in accordance with the customer’s instructions. If it believes that a customer instruction is in violation of provisions of law pertaining to data protection, it shall notify the customer of that. In general, however, Cassiber has no duty to review the customer’s data and its use by the customer for violations of law.

VI. USAGE FEE FOR REMOTE USE OF THE SOFTWARE

1. The customer is obligated to pay a usage fee for all performance done by Cassiber in connection with remote use, in accordance with the invitation to bid on the platform at the time of acceptance of the offer by the customer. The figures on the platform are stated in CHF (Swiss francs) exclusive of value-added tax or other fiscal charges.
2. Price changes during a stipulated fixed term of contract are valid only if they are stated in writing and mutually agreed to by the Parties. In the event that the agreement is extended beyond the fixed term of contract, the customer tacitly accepts the prices that are newly applicable on the platform at the time of extension of the agreement.
3. The usage fee is billed to the customer in accordance with the terms set forth in the agreement. All amounts are billed in advance.
4. The usage fee is billed by Cassiber plus any value-added tax or other fiscal charges. Invoices issued by Cassiber are payable by the customer 14 days after receipt without discount and with no offset. After this payment deadline, the customer is in arrears with no further reminder.
5. Cassiber is entitled to make payment by the customer, and thus formation of the agreement, dependent on settlement of the owed amount by credit card. Cassiber is not obligated, however, to ensure the connection to various credit card companies.
6. If the usage fee owed is calculated according to the number of the customer’s users, billing shall be done on the basis of the number of users at the end of the preceding quarter. If billing is done for one year in advance, Cassiber can determine the number of newly registered users according to each quarter within that year. A usage fee is then billed for those users for the remaining quarters in proportion to the period of use.
7. With regard to payment by credit card, the customer authorizes Cassiber, for period-specific recording of the usage fee, to adjust and charge the amount recorded for the first payment in keeping with the number of users for further charges by credit card.
8. Cassiber is entitled to limit or completely bar access to the platform for customers in arrears. This provision also applies to outstanding amounts owed for Additional Services pursuant to Section VII.

VII. COMPENSATION FOR PAID ADDITIONAL SERVICES

1. The customer is obligated to pay compensation for any paid Additional Services provided by Cassiber in accordance with the invitation to bid on the platform at the time of use of the Additional Service or, if not indicated there, as stipulated by the Parties. All prices are stated in CHF (Swiss francs) exclusive of value-added tax or other fiscal charges.
2. If specific Additional Services are linked to a fixed term of contract, then Section VI.2 applies with respect to price changes during the term of contract.
3. All compensation for Additional Services is billed in arrears in accordance with the terms stipulated in the agreement pertaining to Additional Services.
4. The amount is billed by Cassiber plus any value-added tax or other fiscal charges. Invoices issued by Cassiber are payable by the customer 14 days after receipt without discount and with no offset. After this payment deadline, the customer is in arrears with no further reminder.
5. Cassiber can allow the customer to pay an amount by credit card. However, Cassiber is under no obligation to do so.

VIII. CASSIBER WARRANTY AND LIABILITY

1. Cassiber warrants that when used in accordance with the agreement, the software shall perform the functions described in the user documentation during the periods of use. The customer acknowledges that even if utmost care is applied, functional disruptions of the software cannot be ruled out entirely and the uninterrupted functionality of the software cannot be warranted.
2. The customer must report and adequately document any functional disruption or defect in a functionality warranted in the user documentation (hereinafter “Defect") within 10 calendar days of its discovery, in the absence of which all claims against Cassiber are forfeited.
3. In the event of functional disruptions of the software or Defects, the customer’s claim against Cassiber is limited to elimination of the functional disruption or remedying of the Defect. Circumvention or suppression of the functional disruption or Defect is also considered a permissible measure. If the elimination or remedying does not succeed within a reasonable period, the customer is entitled to terminate the agreement with immediate effect. In the event of termination by the customer for the above reason, Cassiber shall issue to the customer a pro rata refund of any prepaid fees for canceled performance. Any further claims by the customer, in particular claims for damages, are barred. The customer’s right to use the software and the user documentation ends upon his exercise of the right to terminate.
4. Further warranty claims by the customer (including the right to reduction of the usage fee or to damages) are expressly excluded.
5. Cassiber is relieved of its warranty obligations to the extent that a Defect in the software is attributable to circumstances beyond Cassiber’s control.
6. Cassiber is free and entitled to grant rights of use to the software. Cassiber holds harmless the customer against any third-party claims that arise in connection with violation of this warranty, insofar as the third-party claims were caused exclusively by the Contractual Use of the software.
7. The customer shall inform Cassiber, immediately and in writing, of third-party claims that have been brought and shall empower it to conduct the defense, including the reaching of a settlement. The customer shall support Cassiber to a fair and reasonable extent.
8. For the purpose of averting third-party claims, Cassiber can choose to give the customer the right to continue using the software or else exchange or modify the software without a worsening of the functions described in the user documentation. If Cassiber is unable to take any of these measures, Cassiber is entitled to withdraw from an existing agreement. The customer’s right to use the software and the user documentation ends upon Cassiber’s exercise of this right.
9. Any further liability of Cassiber toward the customer in the event of actual or alleged third-party claims is excluded.
10. Cassiber shall perform with due care and professional competence. The performance by Cassiber is furnished by way of the open Internet, and Cassiber can make no guarantee of the uninterrupted availability or the flawlessness of its performance. Cassiber is not liable for any interruptions of service and/or technical disruptions and their effects.
11. Cassiber is not liable for direct or indirect loss that arises through misuse of the platform by the customer, by the users from his stakeholder groups, or by third parties.
12. Cassiber is not liable for direct or indirect loss that arises through third-party services obtained or products acquired by the customer.
13. In all other cases, the level of liability is limited to the reasonable contractually anticipated loss at the time of formation of the agreement. The amount of anticipated loss for each loss incident is considered to be the contract amount.

IX. CUSTOMER WARRANTY AND LIABILITY

1. The customer bears sole liability for use of the software and of the data and information generated from it by the customer himself and by the users from his stakeholder groups. Cassiber denies all liability for use of the software and of the data and information generated from it by the customer.
2. The customer agrees to indemnify Cassiber for all third-party claims resulting from a violation of his contractual duties. The loss to be indemnified also covers the costs of a professional legal defense of Cassiber.

X.CONFIDENTIALITY

• The Parties shall treat as confidential all data and information disclosed or made accessible to them within the framework of the contractual cooperation, and they agree to refrain, without the written consent of the other Party, from using such data and information for purposes other than the contractual cooperation and in particular to refrain from passing it on or making it accessible to third parties. Excepted from this provision are facts that were common knowledge prior to the formation of the contractual relationship, that are subject to a statutory disclosure obligation, or that become known through no fault of either of the Parties. Both Parties agree to impose the present confidentiality duty on all persons permissibly engaged by them for the cooperation (employees, third parties). The present confidentiality duty remains in force beyond the end of the contractual relationship for as long as an interest remains in maintaining confidentiality regarding the respective information.

XI. TERM AND END OF AN AGREEMENT

1. An agreement entered into in connection with these AGBs is entered into for the term indicated in the agreement. The means of termination specified in the agreement apply.
2. Each Party is moreover entitled at any time to effect extraordinary termination of the agreement for good cause and without notice. Good cause is specifically deemed present if the other Party commits a substantive breach of contract and fails to remedy that breach within 10 days despite written warning by the other Party.
3. For Cassiber, good cause is present if a user of the customer brings legal action against Cassiber on the basis of a presumed or actual violation of the law by the customer or for the purpose of asserting claims. Good cause can also be present if the customer or its users cause a loss of reputation for Cassiber. Cassiber can moreover declare termination if the customer flouts its guidelines as published on the platform.

XII. CONCLUDING PROVISIONS

1. Should any of the provisions of these AGBs be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended meaning and purpose of the invalid provision.
2. All disputes arising in connection with these AGBs and from agreements entered into on the basis of these provisions are governed exclusively by the substantive laws of Switzerland, without regard to conflict of law provisions and the provisions of the Vienna Convention (United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980).
3. The exclusive venue is the regular courts at the registered office of Cassiber. In the alternative, Cassiber is entitled to take action against the customer at his domicile.
4. Changes and additions to these AGBs or to agreements must be effected in writing.
5. An agreement entered into by the Parties or individual rights and obligations arising from it may be assigned or transferred to third parties only with the prior written consent of the other Party.

Cassiber AG, Zurich, July 2008
Version 2008/1.0