Last updated on November 19, 2021.
1. Scope and Parties
- 1.1 These general terms and conditions ("Terms") apply to all contracts between EasyLife 365 AG (Schochenmühlestrasse 6, 6340 Baar, Switzerland; "Provider") and customers ("Customer") with regard to the use of the software EasyLife 365 ("Product"). The Terms, together with an offer and/or order confirmation sent by the Provider to the Customer, as well as all attachments to the respective documents, constitute the Agreement ("Agreement"). Unless otherwise agreed, the Terms also apply to the provision of services (including add-ons) related to the Product ("Services").
- 1.2 The Terms shall apply as of the conclusion of the Agreement or upon Customer's use of the Product or Service, regardless of whether or how the Provider and the Customer have agreed on the provision of the Product or Services to the Customer. Unless otherwise agreed, this also applies to the use of any trial or demo version of the Product. The Terms are regarded as accepted as soon as the Customer installs the product to their Microsoft365 environment. (Admin-Consent / Onboarding-Wizard)
- 1.3 Unless otherwise indicated or agreed, the Terms shall also apply with regard to preview, beta or other pre-release features of the Product or the Services ("Previews"). However, with regard to the provision of Previews, all obligations of the Provider arising from these Terms shall not apply. In particular, any warranty is excluded, no corresponding free support is promised and no service level is guaranteed. Previews may be subject to reduced or different security, compliance and privacy commitments and the Customer has therefore to refrain from providing and processing personal data in the context of the Previews. Therefore, the use of the Previews is at the Customer's own risk.
- 1.4 The Terms shall also apply in the event that prior to the conclusion of the Agreement an intermediation by a distributor took place and/or the Customer and the distributor conclude a contract for the provision of services related to the Product. In case of conflict between the Agreement and the contract between distributor and Customer, the Agreement shall prevail.
- 1.5 Any terms and conditions of the Customer shall apply only if the Provider expressly agrees to them. Furthermore, the Terms do not affect the application of Microsoft's terms and conditions for the use of Microsoft's products and services. The Customer is also obligated to comply with these provisions vis-à-vis the Provider.
- 1.6 The Customer is obligated to impose the Terms on any (internal or external) user authorized by the Customer to use the Product. Customer is responsible for all user activities related to the Product that are carried out by any Person from Customer's network, account or tenant ("User").
2. Product and Services of the Provider
- 2.1 With the conclusion of the Agreement, the Provider agrees to provide the Customer with the Product and to provide the Services in accordance with these Terms, the offer and/or the order confirmation. The Provider shall only be obliged to provide the Product with features or to provide services that are not mentioned in these documents, if this has been expressly agreed between the parties in writing. In the event of a conflict between the Terms and the offer or the order confirmation, the offer and the order confirmation shall prevail. With regard to updates and changes, reference must also be made to the provision in article 9.
- 2.2 As specified in the offer and/or order confirmation, the Product is a software for the governance and provisioning of Microsoft 365 tools, for which Customer has been granted the appropriate license by Microsoft, and is hosted on the cloud computing platform Microsoft Azure. The Product is provided to the Customer – with the service level according to article 10 – against payment of the license fee in accordance with article 3 to use for a limited period of time specified in the offer and/or order confirmation. The Agreement will be automatically renewed at the end of this period in accordance with article 11.
- 2.3 As specified in the offer and/or order confirmation, key components of the Product consist of Azure web apps and are, after completing the onboarding process (cf. article 4), accessible via a web browser and without prior installation on end devices. The hosting of the data necessary for the governance and provisioning of the Microsoft 365 tools (especially data of the administrators), in contrast to data generated by the use of the Microsoft Tools themselves (especially data generated by the end users), are hosted on the Microsoft 365 tenant of the Provider.
- 2.4 In addition to the free support as part of the warranty with regard to defects in accordance with article 6, the Provider will provide support subject to fees as specified in the offer. Other Services such as consulting or training as well as the use of the PaaS offer of the Provider requires the conclusion of a separate agreement.
- 2.5 The Product and the Services may include third-party products or services, in particular from Microsoft. The Provider has no influence on the provision of these services and in particular on the termination or modification of the tools for which the Product is used. The Provider is entitled to engage other or additional third parties for the provision of the Product and the Services. The Provider will inform the Customer about changes regarding third party products or services as soon as the Provider becomes aware of them, if this leads to a significant change in the contractual performance to be provided.
- 2.6 The Provider may suspend the use of the Product if systems act or react in a way that deviates from the normal operating behavior and thereby compromises the security, confidentiality, availability, integrity and resilience of the systems, networks, programs, applications, scripts, apps, files and data of the Provider, other customers of the Provider as well as service providers or partners of the Provider. This also applies if the Provider has reason to suspect such an impairment on the basis of objective evidence.
3. Fees and Terms of Payment
- 3.1 The remuneration to be paid for the Product and Services as well as the terms of payment are defined in the offer and/or order confirmation. Unless specified otherwise, the remuneration consists of a license fee for the use of the Product and a fee for the Services rendered and the following provisions shall apply.
- 3.2 All prices exclude VAT and invoices are due within thirty (30) days. After expiry of this period, the Customer shall be in default without any further reminder being required. For each reminder the Customer will be charged a fee of CHF 20.- in addition to the default interest and other consequences of default, including, but not limited to the suspension of the use of the Product or the provision of Services, as defined in the Swiss Code of Obligations.
- 3.3 Unless specified otherwise, the Provider invoices license fees on an annual subscription model. The invoices will be sent each year in advance. The amount of the fees is generally based on the number of Microsoft 365 licenses of the Customer. However, the Provider may deviate from this principle in the offer, in particular, but not limited to Customers with a large number of F licenses or student licenses.
- 3.4 Customer support as part of the warranty to remedy defects in accordance with article 6 is included in the license fee. Other Customer support (i.e. how to customize or use the product as well as rollout or handling related questions), extensions and other Services are not included in the licence fee and are charged to the Customer separately. Unless otherwise agreed, the Services will be invoiced on the basis of time and material and the hourly rates indicated in the offer will apply.
- 3.5 The Provider reserves the right to adjust the fees at its sole discretion with prior notice to the Customer. Adjustments to the license fees will become effective in case of renewal of the annual subscription and will be notified at least 3 months in advance. The Customer is therefore free to terminate the current subscription in accordance with article 11 if he does not agree with such a change in fees. Any changes in the fees for Services, in particular the hourly rates, will be notified to the Customer 30 days prior to the effective date.
- 3.6 If, during the term of the agreement, the number of licenses exceeds the number on which the license fee is based by more than 20%, the Provider has to be informed immediately in order to determine a new or additional fee. If the parties do not conclude a new agreement, Customer shall pay, as of the date the number of licenses is exceeded, a percentage increase of the current license fee corresponding to the percentage of the exceeded number of licenses (e.g. exceeding the number of licenses by 100% leads to a 100% increase of the current license fee). In the event that the number of licenses on which the license fee was based is exceeded by less than 20%, the license fee will only be adjusted for the new year in the event of renewal.
- 3.7 The Customer shall not be entitled to set off any claim of the Provider against a claim the Customer has against the Provider.
4. Installation and Testing
- 4.1 In order to use the Product, the Customer must take the steps described on the Product documentation page, currently at http://docs.easylife365.cloud/, and in particular grant the Provider the necessary permissions. Upon conclusion of the Agreement, the Provider shall immediately take all measures within its own environment to enable the Customer to use the Product. Subject to the specification in the offer and/or order confirmation, the Provider will also support the Customer in taking the necessary measures in the Customer's environment. One hour onboarding and testing is included in the license fees.
- 4.2 After the Provider or distributor has informed the Customer that the Software is ready for testing, the Customer must test the product within 14 days. Within this period, the Customer must inform the Provider or the distributor in writing of every defect discovered. The Provider shall immediately rectify defects that materially disturb the use of the Product and invite the Customer to carry out another test in due course. If such defects are also found in this further test and the Provider is not able to rectify these defects without undue delay, the Customer may withdraw from the Agreement.
- 4.3 The Product will be regarded as accepted:
- A: if the Customer does not send a written notification about defects that materially disturb the use of the Product within the period according to article 4.2,
- B: if all defects that materially disturb the use of the Product notified by the Customer have been rectified or
- C: if the Customer uses the Software productively
- 4.4 Once the Product has been accepted, the warranty according to article 6 does not apply to defects which were already recognizable at the time of the test if the test was carried out with due care.The Provider will rectify such defects as part of the support service in accordance with the agreed fees.
5. General Responsibilities of the Customer
- 5.1 The Customer is responsible for the operation and suitability of any means and resources used by him for the use of the Product.In particular, the Customer is responsible for establishing and maintaining the telecommunication connection between the Customer's servers and the Service Delivery Point/Azure Front Door required for the use of the Product.
- 5.2 The Customer is solely responsible for all Microsoft 365 matters, including obtaining and maintaining the necessary licenses to use the relevant Microsoft tools, and must make sure, his environment is properly secured and set up according to all applicable Microsoft terms and best practices.Product defects that arise from misconfiguration of the Microsoft product or the Microsoft 365 Platform and its services, are not covered by the warranty of the Provider.
- 5.3 The Customer shall perform all tasks necessary for the Product to work properly(i.e.grant correct access rights etc.) as stated in the Agreement(including documentation or referred to therein, such as the documentation website, currently at http://docs.easylife365.cloud/) or advised by the Provider or distributor.
- 5.4 Before transmitting data and information to the Provider or the distributor, the Customer shall check any files for viruses and use state - of - the - art virus protection programs.
- 5.5 The Customer is solely responsible for ensuring that its use of the Product and related third - party products, including, without limitation, Microsoft tools, complies with all applicable laws and does not infringe the rights of any third party.
- 5.6 In the event of suspicion of unlawful use or use in breach of the Agreement by the Customer, e.g.exceeding the agreed number of users, the Provider is entitled to carry out reasonable investigations and evaluations of the existing data with regard to the use of the Product and the Customer is obliged, upon request, to cooperate in a reasonable manner in clarifying the facts, e.g.by providing evidence of the use of the Product or enabling and tolerating audits by the Provider.
- 6.1 The Provider can neither guarantee that the Product is free of errors nor that it can be used without interruption.Nevertheless, the Provider assumes a warranty to the extent specified below as well as an uptime service level as defined in article 10.
- 6.2 The Provider will rectify, free of charge, all defects that materially disturb the use of the Product, if the Customer has notified the Provider about within three(3) months after the Service has been accepted or taken into production.The rectification of the defects can also happen by bypassing the defect or by providing the Customer with instructions on how to bypass the defect, given that this can be done without substantial disadvantage to the Customer.
- 6.3 In accordance with article 4.4, once the Product has been accepted by the Customer, the warranty does not apply to defects which were already recognizable at the time of the test if the test was carried out with due care.The warranty of the Provider does not include rectification of defects that are caused by using the Product against the Agreement or instructions given by the Provider or the distributor, or errors that have been caused by third - party products, solutions, changes or fixes, for which the Provider is not responsible.The proper operation of the Product in connection with third party software other than Microsoft Office 365 is not guaranteed.Furthermore, the warranty of the Provider does not include any new features, requests, wishes or changes to the system.
- 6.4 This article and the following article govern the warranty granted by the Provider in an exhaustive manner and any further warranty of the Provider is expressly excluded.
7. Warranty of Title
- 7.1 The Provider warrants that, to the best of its knowledge, the valid, unmodified version of the Product does not infringe any intellectual property rights, namely copyrights, of any third party and that the use of the valid, unmodified Product in accordance with its intended purpose does not constitute unfair competition.
- 7.2 If intellectual property rights of third parties have been infringed, the Provider has the choice of either procuring for the Customer the right to continue using the Product, replacing the Product, or modifying the Product in a manner that it no longer infringes intellectual property rights.If the afore mentioned is not feasible with reasonable effort or cannot be accomplished within a period of 30 days from the date of notification of the defect, the Provider shall refund to the Customer the license fees paid by the Customer for the current year with a deduction of an appropriate compensation for the use made in the meantime.
- 7.3 The Customer shall inform the Provider without delay of any possible or alleged infringements of intellectual property rights.The Customer must grant the Provider the rights that the Provider needs to defend itself against the corresponding claims of third parties.The Customer shall be obliged to entrust the Provider with the defense and authorizes the Provider to settle the dispute by way of settlement agreement.The Customer shall not take action itself, at least not without the Provider's prior consent. The Customer shall be obliged to support the Provider in the defense against third party claims.
- 7.4 The preceding provisions on the warranty of title are exhaustive and replace in particular the statutory warranty of title provisions.The Provider neither expressly nor impliedly assumes any other warranty of title.
8. License and Intellectual Property Rights
- 8.1 The Product is protected by copyright in accordance with the relevant statutory provisions, namely on the protection of computer programs.The Customer expressly acknowledges the aforementioned protection.The copyright includes in particular the program code, the documentation, the visual appearance of the product, the design of the user interface and the input and output forms and printouts, the content, structure and organization of the program files, the program name, logos and other forms of representation within the product.
- 8.2 For the term of this Agreement, the Provider grants the Customer the non - exclusive, non - transferable, non - sublicensable and time - limited right to use the Product, including the elements specified in article 8.1, to the extent necessary to fulfil the purpose of the Agreement.The right of use is limited to the number of users specified in the offer and / or order confirmation.
- 8.3 Rights which are not expressly mentioned in this Agreement are not granted.The Agreement and the use of the Product do not confer any ownership rights to the Product to the Customer.In particular, no copyrights to the Product are assigned or transferred to the Customer.The Customer is only granted the rights of use specified above.
- 8.4 In particular, the Customer is not permitted
- A: to license, sell, rent, lease, assign, distribute, transfer, disclose or otherwise commercially exploit the product or to make it available to a third party;
- B: to modify, edit, disassemble, decrypt, decompile or reverse engineer any part of the Product.
- 8.5 If the Provider modifies the Product based on the Customer's feedback or suggestions, the Customer acknowledges that the Provider shall become the owner of all rights to such modifications. In the event that any rights to such modifications are acquired by the Customer, the Customer hereby assigns to the Provider, without compensation, all such rights. If such assignment is not permitted by applicable law, The Customer hereby grants to the Provider the exclusive, royalty-free, unlimited in time, worldwide, sub-licensable and transferable right to use the modifications. Included in this grant of rights is the right to edit and further develop the modifications. The Customer undertakes to perform all actions necessary to implement the aforementioned assignment or granting of rights at the first request of the Provider.
9. Updates and Changes
- 9.1 Provider may, at its sole discretion and at freely determined intervals, make changes or fixes to the Product.The Customer is not entitled to specific changes, alterations, or integrations.However, if specified in the Product documentation, the Customer may purchase or order the development of individual functions.
- 9.2 The Provider will publish changes on the Product documentation website, e.g.under a section such as roadmap.Major changes will be announced by Email.The Customer is obliged to consult the respective section regularly.The Provider must not provide separate individual information about changes(e.g.by mail).All changes are provided simultaneously to all customers and the Customer cannot decline such changes.
- 9.3 The Provider will, as far as reasonable and appropriate, initially deploy changes on an instance where they can be tested by the Customer if required.
10. Service Level
- 10.1 The Product shall be available 99, 9 % of the time per month with 24 - hour operating time from Monday to Sunday.Availability is calculated according to the following formula:
minutes in the month - minutes of downtime
minutes in the month
- 10.2 If the service level is not reached, Customer is refunded 10 % of the annual license fee for each 2 % of downtime(i.e. 97.9 % availability = 10 % refund etc.).Annual refund is a maximum of 30 % of the annual license fee paid in advance by the customer. 10.2 Repeated failure to reach the service level is considered reasonable grounds for the Customer to terminate the Agreement effective immediately.
- 10.3 Downtime shall be considered as the time during which the Product cannot be used by the Customer at all.Interruptions of individual functions do not count as downtime.Individual bugs or malfunctions are to be rectified through the support process or, if the conditions are fulfilled, as part of the warranty.Excluded are downtimes that occur in accordance with article 2.6 or interruptions caused by services or the infrastructure of third parties, such as Microsoft.
- 10.4 Pre - announced maintenance interruptions do not count as downtime.Regular maintenance windows will be announced at least one month in advance.Notwithstanding the foregoing, the Provider is entitled to perform urgent maintenance with shorter notice and to interrupt the use of the Product during this time.
- 10.5 The Customer shall notify any downtime immediately after it occurs, indicating start time and end time of the interruption, responsible person at the Customer and proof(print screens, videos).Based on these notifications, the Provider shall, at the Customer's request, prepare a report to document Service Level compliance.
11. Term and Termination
- 11.1 The contract term is defined in the offer and / or order confirmation.If the contract term has not been defined or the provision of the Product is agreed for an unlimited period of time, each party has the right to terminate the Agreement by the end of the current billing period, which shall be twelve(12) months unless otherwise agreed.However, the term of notice is always at least three(3) months.The termination of the Agreement must be made in writing by an authorized person.
- 11.2 The Agreement may be terminated by Provider at any time by giving 20 days' written notice to the end of a month for good cause for which Provider is not responsible. Good cause is given in particular in the following circumstances: a) unlawful use of the Product by the Customer b) infringement of intellectual property rights by the Customer or c) if the Customer does not make full payment even after setting a final, reasonable payment deadline with the threat of termination. In these cases of good cause, the Provider shall not refund any fees paid in advance.
- 11.3 In addition, good cause is also given if the third - party services or products necessary to provide the Product or Services are to be changed in a way that the Provider can’t continue to offer the Product within reason(i.e.Microsoft terminates the basis Services the Product is developed on).In this case, the Provider will refund those license fees that were paid in advance during the current billing period.
- 11.4 Termination of the Agreement shall result in particular in the Customer's access to the Product being disabled. Post-contractual services of the Provider not provided for in the Agreement are only owed if and insofar as they are explicitly agreed between the parties. The Customer is solely responsible for transferring the logic and information saved in the Product to a location accessible by the Customer before the end of the Agreement. If the Customer does not fulfil his responsibility before the Agreement ends, the Provider is not obliged to store or transfer any data that may still be stored. The Provider is entitled to charge for the support requested by the Customer in accordance with the fees for the support services. The Provider will not refund any additional work that might arise on the part of Customer.
12. Force Majeure
- 12.1 The Provider shall not be liable for delays and damages caused by an impediment beyond the Provider's control, which the Provider could not have reasonably taken into account at the time of the conclusion of the Agreement, and whose consequences the Provider could not reasonably have avoided or overcome.
- 12.2 Pandemics, epidemics, strikes, lockout, boycott and other industrial action shall constitute a force majeure event even if the Provider is the target or a party to such an action.
- 13.1 For any claims based on damages caused by the Provider or its auxiliary persons, the Provider shall be liable without limitation in case of intentional or grossly negligent misconduct.
- 13.2 With the exception of the aforementioned mandatory liability cases, any liability of the Provider as well as the liability for auxiliary persons, substitutes and any other third parties(including subcontractors) involved in the performance shall be excluded in full.Mandatory provisions of the applicable law remain reserved.
- 14.1 The Customer shall indemnify the Provider and its corporate bodies and employees against any liability and any costs, including possible and actual costs of legal proceedings, if a claim is made against the Provider by third parties, including employees of the Customer or Users, as a result of alleged acts or omissions of the Customer.
- 14.2 The indemnification shall apply in particular in connection with third party claims relating to:
- Customer's or User's breach of this Agreement or applicable law;
- Data processed by Customer or User in connection with the Product, including alleged infringement of third party rights by such data processing;
- Disputes between Customer and Users;
- Data breaches claimed by third parties in Customer's and/or User's data processing.
15. Data Protection
- 15.1 In the course of the provision of the Product and the Services, the Provider processes a limited set of data and ensures that personal data of the users of the Product are processed in compliance with the applicable regulations, in particular the Swiss Data Protection Act an den EU General Data Protection Regulation(GDPR).
- 16.1 Each party shall keep in confidence all material and information received from the other party and marked as confidential or which should be understood to be confidential and may not use such material or information for any purposes other than those set out in the Agreement.The confidentiality obligation shall, however, not apply to material or information, (i) which is generally available or otherwise public without the information concerned having been subject to an obligation of confidentiality or otherwise unlawfully made public; (ii) which the receiving party has received from a third party without any violation of confidentiality; (iii) which was in the possession of the receiving party prior to receipt of the same from the other party without any obligation of confidentiality related thereto; (iv) which the receiving party has independently developed without using material or information received from the other party.
- 16.2 Each party shall promptly upon termination of the Agreement, or when the party no longer needs the material or information in question for the purpose set out in the Agreement, cease using confidential material and information received from the other party and upon request return or destroy the material including all copies thereof in a reliable manner.Each party shall, however, be entitled to retain such material as is required by law or regulation by the authorities or to the extent necessary to fulfil legitimate interests such as the enforcement or defense of claims.
- 16.3 The Provider shall be entitled to use the know - how, the professional skills and experience acquired in connection with the Agreement without any restrictions in relation to third parties.The Provider has the right to use the collaboration and the Customers name as a reference and may list the Customer as a client on its website.
- 17.1 Notices or declarations vis - à - vis the other Party in connection with this Agreement are effectively transmitted if delivered by registered mail, by courier or by email at the addresses set forth in the offer and / or order confirmation.Unless explicitly stipulated or agreed otherwise, any form that enables proof by text, in particular also in the form of an e - mail, shall be deemed to be in writing.
- 17.2 The Provider may amend these Terms with a reasonable period of notice.If the Customer does not object to the amendment within this period, the amendment shall be deemed approved.
- 17.3 The provisions of this Agreement shall be construed so as to be valid and enforceable according to applicable Law.Should any provision hereof be unenforceable or invalid according to applicable Law, it shall only be unenforceable or void to the extent of such unenforceability or invalidity and shall for the remaining be replaced by a valid and enforceable provision which shall satisfy the legal and economic meaning / result of the ineffective provision.The remaining provisions of this Agreement remain binding and in full force.The same shall apply in case of incompleteness of this Agreement.
- 17.4 Neither party may assign the Agreement, either wholly or in part, without the written consent of the other party.Notwithstanding the foregoing, the Provider may assign the Agreement to a company of the same group of companies or in the context of an M & A transaction.
- 17.5 The Agreement shall be governed solely by the substantive laws of Switzerland, however, neither the laws of conflict nor the United Nations Treaty on Contracts for the International Sale of Goods(CISG) shall apply.
- 17.6 Any dispute, controversy or claim arising out of or in relation to this Agreement or future non - contractual claims including the validity, invalidity, enforceability, interpretation, execution, breach, modification or termination thereof, shall be submitted to the exclusive jurisdiction of the courts of Zurich (Switzerland).However, the Provider is also entitled to initiate legal proceedings against the Customer at its residence or before any other competent authority.
Integral parts of these Terms are the following Annexes:
- Data Processing Agreement