GENERAL TERMS OF SERVICE
GENERAL TERMS OF SERVICE
These general terms of service (the “General Terms of Service) regulate the contractual relationship entered into by and between you (the “Customer”) and Innovire AG, a corporation established under Swiss law, having its registered office at Stettbachstrasse 6, 8600 Dübendorf, Switzerland (the “Service Provider”, together with the Customer the “Parties” and each a “Party”) (the “Agreement”).
Background and Agreement Structure
1.1 The Agreement consists of the following elements which shall, in case of any discrepancy or conflict, prevail in the following order (lower number governs over higher number):
Work Order (defined below)
These General Terms of Service
1.2 Customer requests Service Provider to provide services (including, but not limited to, the Software defined in Section 7.1) (the “Services”) and (as the case may be) products (the “Products”) as defined in this Agreement.
1.3 Service Provider and Customer must complete and execute work orders (each, a “Work Order”) before any Services are provided or Products are delivered. Each Work Order will include the information relating to the specific Services and/or Products. Once executed, a Work Order becomes part of this Agreement, although the terms in a Work Order will govern only the Services and/or Products described in that Work Order.
Services and Products
2.1 Provision of Services. Service Provider agrees to provide the Services identified in the Agreement (including, but not limited to, the Software defined in Section 7.1). The provision of the Services shall be subject to the limited or excluded representations and warranties according to Section 4.
2.2 Provision of Products. Service Provider agrees to sell the Products (including, but not limited to, thermal cameras) identified in the Agreement. Such purchase agreements shall be subject to the limited or excluded representations and warranties according to Section 4.
2.3 Standard Operating Procedures. Service Provider will, upon request and under confidentiality, supply copies to Customer of all standard operating procedures of Service Provider relevant to the Services rendered and the Products sold under this Agreement.
2.4 Subcontracting. Service Provider may subcontract the performance of certain portions of the Services to an Affiliate (defined below) of Service Provider or to a qualified third party; provided, that (a) Service Provider notifies Customer in writing of the Affiliate or proposed subcontractor and identifies the specific Services to be performed by such Affiliate or subcontractor, (b) such Affiliate or subcontractor performs those Services in a manner consistent with the terms, conditions and obligations of this Agreement, and (c) Service Provider remains liable for the performance of such Affiliate or subcontractor. “Affiliate” means, with respect to each party to this Agreement, any corporation, company, partnership, joint venture and/or firm which controls, is controlled by or is under common control with that party. As used in this Section 2.4, “control” means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (ii) in the case of non‑corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non‑corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such non-corporate entity.
2.5 Change Orders. If the scope of work under this Agreement changes, then the Agreement may be amended as provided in this Section 2.5. If a required modification to the Agreement is identified by Customer or by Service Provider, the identifying Party will notify the other Party in writing as soon as reasonably possible. Within ten (10) business days of receiving or sending such notice, Service Provider will provide Customer with a change order containing a description of the required modifications and their effect on the scope, fees and timelines specified in the Agreement (each, a “Change Order”). No Change Order will be effective unless and until it has been signed by an authorized representative of each Party. If Customer does not approve such Change Order, then the Parties will use reasonable efforts to agree on a Change Order that is mutually acceptable. If practicable, Service Provider will continue to provide Services under the existing Agreement during any such negotiations, provided such efforts would facilitate the completion of the work envisioned in the proposed Change Order, but will not commence work in accordance with the Change Order until it is authorized in writing by Customer. Nothing in this Section 2.5 will limit Customer’s right to terminate this Agreement under Section 10.
No Professional Advice
NOTHING PROVIDED BY SERVICE PROVIDER IN CONNECTION WITH THE SERVICES AND/OR THE PRODUCTS, SHALL BE CONSTRUED TO CONSTITUTE PROFESSIONAL ADVICE OR SUPPORT WITH RESPECT TO COMPLYING WITH FIRE PREVENTION OR OTHER SAFETY LAWS AND REGULATIONS, AND CUSTOMER SHOULD NOT RELY ON THEM AS SUCH. CUSTOMER’S DECISION TO RELY ON ANY INFORMATION OR DATA OR OTHER RESULTS IT OBTAINS IN CONNECTION WITH ITS USE OF THE SERVICES AND/OR PRODUCTS IS AT ITS SOLE DISCRETION AND RISK. SERVICE PROVIDER DOES NOT PROMISE ANY PARTICULAR RESULTS, INCLUDING THE PREVENTION OF FIRES OR OTHER HAZARDS.
Representations and Warranties by Service Provider and Failure to Perform
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS, THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY AND THAT THEREFORE, THE SERVICE PROVIDER EXCLUDES ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND THE PRODUCTS. THE SERVICE PROVIDER DOES IN PARTICULAR NOT GIVE ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE USEFULNESS, CORRECTNESS, CORRECT OPERATION OR SUCCESS OF THE SERVICES AND PRODUCTS (OR ITS RESULTS).
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT CANNOT AND SHALL NOT RELY ON THE SERVICES OR PRODUCTS FOR FIRE PREVENTION OR SIMILAR PURPOSES.
Obligations of Customer
If specified in a Work Order, Customer shall be obliged to adhere to the instructions of use attached or referred to in the Work Order (the “Instructions of Use”). The representations and warranties according to Section 4 above (if any) are made and provided under the condition that and subject to such instructions of use being at all times be fully complied with by the Customer.
Compensation
6.1 Fees. As full and complete consideration for the Services and Products, Customer will pay Service Provider as set forth in the applicable Work Order. Customer shall pay said invoices, provided that the invoice is valid and undisputed, within thirty (30) days of receipt, unless the payment conditions of the Work Order provide otherwise.
6.2 Late Payment. Service Provider reserves the right to cancel or stop delivery of Products in transit and withhold shipments in whole, if payment is delayed, or if Customer otherwise does not perform its obligations in this Agreement. Further, a late payment interest of five percent (5%) per year shall apply.
6.3 Reimbursement. Customer shall reimburse Service Provider for reasonable travel expenses and other out-of-pocket expenses incurred directly and solely in connection with the Agreement, provided that such costs have been approved in advance by Customer.
6.4 Payment of Taxes. Each Party will be responsible for its own taxes incurred by such Party in connection with its business and with performing its obligations hereunder.
Proprietary Rights
7.1 Service Provider retains ownership and title to the software the Service Provider uses or offers in connection with performing the Services (including, but not limited to, the dashboard) (the “Software”). In this context, Service Provider grants to Customer access to the Software on a non-exclusive basis. Customer is granted no ownership rights or exclusive or sole license to the Software. Customer understands and agrees not to directly, or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software. Customer agrees not to modify, translate, or create derivative works based on any aspect of the Software. Customer understands that it has no rights to copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or any of its components.
7.2 Record Retention. All Records will be retained by Service Provider for a period of five (5) years, or such longer period as required under applicable law or regulation (the “Record Retention Period”). At the end of the Record Retention Period, such Records will, at Service Provider’s sole discretion, either be (a) delivered to Customer or to its designee, or (b) disposed of. Service Provider may retain copies of any Records as are reasonably necessary for regulatory or insurance purposes, subject to Service Provider’s obligations of confidentiality under this Agreement.
Confidential Information
8.2 Obligations of Confidentiality. During the term of this Agreement and for a period of five (5) years thereafter, except as otherwise expressly provided in this Agreement, Service Provider will not, directly or indirectly, publish, disseminate or otherwise disclose, or deliver or make available to any third party, or use any Confidential Information, other than in furtherance of the purposes of this Agreement. Service Provider will exercise all reasonable precautions to protect the integrity and confidentiality of the Confidential Information. Service Provider may disseminate or permit access to Confidential Information only to Service Provider Personnel who have a need to know such Confidential Information in the course of the performance of their duties under this Agreement and who are bound to obligations of non-disclosure and non-use of the Confidential Information that are at least as restrictive as those set forth in this Agreement.
8.3 Exceptions. Service Provider will not have obligations of non-disclosure and non-use under this Agreement with respect to any portion of the Confidential Information that Service Provider can demonstrate, by clear and convincing evidence:
(a) is or later becomes generally available to the public through no fault of Service Provider;
(b) is obtained from a third party who is lawfully in possession of the Confidential Information and has the legal right to disclose such Confidential Information to Service Provider without obligation of confidentiality to Customer;
(c) Service Provider already possesses, other than by disclosure by Customer; or
(d) is independently discovered or developed by Service Provider without use of or reliance upon the Confidential Information.
In the event that Service Provider is required by order of a court or other government entity having jurisdiction to disclose any Confidential Information, Service Provider will give Customer prompt notice thereof so that Customer may seek an appropriate protective order. Service Provider will reasonably cooperate with Customer in its efforts to seek such a protective order.
Liability
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS AND THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY. THEREFORE, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY LEGAL THEORY (WHETHER TORT, CONTRACT OR OTHERWISE) FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER. BOUNDARIES OF APPLICABLE MANDATORY LAW TO THE LIMITATION AND EXCLUSION OF LIABILITY, SUCH AS FOR WILLFULL MISCONDUCT, REMAIN RESERVED.
Expiration and Termination
10.2 Each Party may immediately terminate this Agreement at any time upon written notice to the other Party in the event of a breach of this Agreement or any Work Order by the other Party which cannot be cured (e.g., a breach of the confidentiality obligations) or which the other Party fails to cure after having been granted in writing a reasonable curing period of no less than ten (10) days. Further, any Party may terminate this Agreement or any Work Order at any time upon thirty (30) days prior written notice to the other Party.
10.3 Termination for insolvency. Either Party may elect to immediately terminate this Agreement to the extent permitted by applicable law in the event of a commencement by the other Party of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or the entry of a decree or order for relief in respect of the other Party in a case under any such law or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the other Party, or for any substantial part of the property of the other party, or ordering the wind-up or liquidation of the affairs of the other Party; or the filing and pendency for thirty (30) days without dismissal of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law; or the making by the other party of any general assignment for the benefit of creditors; or the failure of the other party generally to pay its debts as such debts become due; or the taking of action by the other party in furtherance of any of the foregoing.
10.4 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, neither Service Provider nor Customer will have any further obligations under this Agreement, except that:
(a) Service Provider will terminate all Services in progress in an orderly manner as soon as practicable and in accordance with a schedule agreed to by Customer, unless Customer specifies in the notice of termination that Services in progress should be completed;
(b) Customer will pay Service Provider any monies due and owing Service Provider, up to the time of termination or expiration, for Services properly performed and all authorized expenses actually incurred (as specified in the applicable Work Order);
(d) Service Provider will promptly refund any monies paid in advance by Customer for Services not rendered;
(d) Service Provider will promptly return to Customer all copies of all Confidential Information in Service Provider’s possession or control that relate to this Agreement or, if this entire Agreement has not been terminated or has not expired, that relate to any Work Order which has been terminated or has expired, except for one (1) copy which Service Provider may retain solely to monitor Service Provider’s surviving obligations of confidentiality; and
(e) the terms, conditions and obligations under Sections 7, 8, 9 and 11 will survive any such termination or expiration.
Miscellaneous
11.2 Use of Names. Neither Party has the right to use the other Party’s name or the names of the other Party’s employees in any advertising, sales promotional material or press release without the prior written permission of the other Party, except to the extent such disclosure is reasonably necessary for (a) prosecuting or defending litigation, and (b) complying with (i) applicable governmental regulations and legal requirements and (ii) the requirements of any stock exchange or stock listing entity.
11.3 Notices. All notices required or permitted under this Agreement must be in writing and must be given by addressing the notice to the address for the recipient set forth in this Agreement or at such other address as the recipient may specify in writing under this procedure. Notices to Customer will be marked “Attention: Chief Executive Officer”. Notices to Service Provider will be marked “Attention: Chief Executive Officer”. Notices will be deemed to have been given (a) three (3) business days after deposit in the mail with proper postage for first class registered or certified mail prepaid, or (b) one (1) business day after sending by nationally recognized overnight delivery service.
11.4 Assignment. This Agreement may not be assigned or transferred, in whole or in part, by either party without the prior written consent of the other party. However, either Party may transfer or assign this Agreement, in whole or in part without the prior written consent of the other Party, to an Affiliate of such Party, or in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates, provided that all obligations of the assigning Party are assumed by the assignee.
11.5 Entire Agreement. This Agreement (together with all parts and elements described in Section 1.1) constitutes the entire agreement of the Parties with regard to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between the Parties with regard to such subject matter.
11.6 No Modification. This Agreement may be amended only in writing (including any form permitted as per Section 11.11).
11.7 Severability; Reformation. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the other terms of this Agreement in such jurisdiction, or the terms of this Agreement in any other jurisdiction. The Parties will substitute for the invalid or unenforceable provision a valid and enforceable provision that conforms as nearly as possible with the original intent of the Parties.
11.8 Force Majeure. A Party will be excused from performing its obligations under this Agreement to the extent that its performance is delayed or prevented by an event beyond the reasonable control of the Party (“Force Majeure”). To be excused, the Party claiming Force Majeure must promptly notify the other and exercise due diligence to avoid, remove or overcome the Force Majeure. In the event that Service Provider’s performance is excused because of a Force Majeure, Customer may replace the part of Service Provider’s performance that is delayed or prevented from another source. Service Provider’s fee will be equitably adjusted. The following is a non-exclusive list of examples that may qualify as a Force Majeure: fire, explosion, general labour strikes, acts of God, epidemics, pandemics, natural disasters, war, insurrection, civil strife, government acts, acts of terrorism, extreme weather, sabotage, changes in governmental laws, orders, restrictions, actions, embargoes or blockades, a national or regional emergency, shortage of or inability to obtain raw materials and other critical components that could not have been avoided through the exercise of due diligence and good supply chain management.
11.9 Governing Law and Jurisdiction. This Agreement will be construed and interpreted and its performance governed by the laws of Switzerland, excluding its rules for choice of law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the ordinary courts of Zurich 1, Switzerland, without limiting any right to appeal.
11.10 Waiver. No waiver of any term, provision or condition of this Agreement in any one or more instances will be deemed to be or construed as a further or continuing waiver of any other term, provision or condition of this Agreement. Any such waiver must be evidenced by an instrument in writing executed by an officer authorized to execute waivers.
11.11 Form Requirements. This Agreement may be executed in writing or in electronic form (such as an electronic file which contains a scan of the wet ink signature or signed by Skribble, DocuSign or AdobeSign or a similar tool) and be delivered by electronic mail or another transmission method; the counterpart so executed and delivered shall be deemed to have been duly executed and validly delivered and be valid and effective for all purposes.
11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
11.13 Headings. This Agreement contains headings only for convenience and such headings should not be used in the construction of this Agreement.
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These general terms of service (the “General Terms of Service) regulate the contractual relationship entered into by and between you (the “Customer”) and Innovire AG, a corporation established under Swiss law, having its registered office at Stettbachstrasse 6, 8600 Dübendorf, Switzerland (the “Service Provider”, together with the Customer the “Parties” and each a “Party”) (the “Agreement”).
Background and Agreement Structure
1.1 The Agreement consists of the following elements which shall, in case of any discrepancy or conflict, prevail in the following order (lower number governs over higher number):
Work Order (defined below)
These General Terms of Service
1.2 Customer requests Service Provider to provide services (including, but not limited to, the Software defined in Section 7.1) (the “Services”) and (as the case may be) products (the “Products”) as defined in this Agreement.
1.3 Service Provider and Customer must complete and execute work orders (each, a “Work Order”) before any Services are provided or Products are delivered. Each Work Order will include the information relating to the specific Services and/or Products. Once executed, a Work Order becomes part of this Agreement, although the terms in a Work Order will govern only the Services and/or Products described in that Work Order.
Services and Products
2.1 Provision of Services. Service Provider agrees to provide the Services identified in the Agreement (including, but not limited to, the Software defined in Section 7.1). The provision of the Services shall be subject to the limited or excluded representations and warranties according to Section 4.
2.2 Provision of Products. Service Provider agrees to sell the Products (including, but not limited to, thermal cameras) identified in the Agreement. Such purchase agreements shall be subject to the limited or excluded representations and warranties according to Section 4.
2.3 Standard Operating Procedures. Service Provider will, upon request and under confidentiality, supply copies to Customer of all standard operating procedures of Service Provider relevant to the Services rendered and the Products sold under this Agreement.
2.4 Subcontracting. Service Provider may subcontract the performance of certain portions of the Services to an Affiliate (defined below) of Service Provider or to a qualified third party; provided, that (a) Service Provider notifies Customer in writing of the Affiliate or proposed subcontractor and identifies the specific Services to be performed by such Affiliate or subcontractor, (b) such Affiliate or subcontractor performs those Services in a manner consistent with the terms, conditions and obligations of this Agreement, and (c) Service Provider remains liable for the performance of such Affiliate or subcontractor. “Affiliate” means, with respect to each party to this Agreement, any corporation, company, partnership, joint venture and/or firm which controls, is controlled by or is under common control with that party. As used in this Section 2.4, “control” means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (ii) in the case of non‑corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non‑corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such non-corporate entity.
2.5 Change Orders. If the scope of work under this Agreement changes, then the Agreement may be amended as provided in this Section 2.5. If a required modification to the Agreement is identified by Customer or by Service Provider, the identifying Party will notify the other Party in writing as soon as reasonably possible. Within ten (10) business days of receiving or sending such notice, Service Provider will provide Customer with a change order containing a description of the required modifications and their effect on the scope, fees and timelines specified in the Agreement (each, a “Change Order”). No Change Order will be effective unless and until it has been signed by an authorized representative of each Party. If Customer does not approve such Change Order, then the Parties will use reasonable efforts to agree on a Change Order that is mutually acceptable. If practicable, Service Provider will continue to provide Services under the existing Agreement during any such negotiations, provided such efforts would facilitate the completion of the work envisioned in the proposed Change Order, but will not commence work in accordance with the Change Order until it is authorized in writing by Customer. Nothing in this Section 2.5 will limit Customer’s right to terminate this Agreement under Section 10.
No Professional Advice
NOTHING PROVIDED BY SERVICE PROVIDER IN CONNECTION WITH THE SERVICES AND/OR THE PRODUCTS, SHALL BE CONSTRUED TO CONSTITUTE PROFESSIONAL ADVICE OR SUPPORT WITH RESPECT TO COMPLYING WITH FIRE PREVENTION OR OTHER SAFETY LAWS AND REGULATIONS, AND CUSTOMER SHOULD NOT RELY ON THEM AS SUCH. CUSTOMER’S DECISION TO RELY ON ANY INFORMATION OR DATA OR OTHER RESULTS IT OBTAINS IN CONNECTION WITH ITS USE OF THE SERVICES AND/OR PRODUCTS IS AT ITS SOLE DISCRETION AND RISK. SERVICE PROVIDER DOES NOT PROMISE ANY PARTICULAR RESULTS, INCLUDING THE PREVENTION OF FIRES OR OTHER HAZARDS.
Representations and Warranties by Service Provider and Failure to Perform
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS, THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY AND THAT THEREFORE, THE SERVICE PROVIDER EXCLUDES ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND THE PRODUCTS. THE SERVICE PROVIDER DOES IN PARTICULAR NOT GIVE ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE USEFULNESS, CORRECTNESS, CORRECT OPERATION OR SUCCESS OF THE SERVICES AND PRODUCTS (OR ITS RESULTS).
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT CANNOT AND SHALL NOT RELY ON THE SERVICES OR PRODUCTS FOR FIRE PREVENTION OR SIMILAR PURPOSES.
Obligations of Customer
If specified in a Work Order, Customer shall be obliged to adhere to the instructions of use attached or referred to in the Work Order (the “Instructions of Use”). The representations and warranties according to Section 4 above (if any) are made and provided under the condition that and subject to such instructions of use being at all times be fully complied with by the Customer.
Compensation
6.1 Fees. As full and complete consideration for the Services and Products, Customer will pay Service Provider as set forth in the applicable Work Order. Customer shall pay said invoices, provided that the invoice is valid and undisputed, within thirty (30) days of receipt, unless the payment conditions of the Work Order provide otherwise.
6.2 Late Payment. Service Provider reserves the right to cancel or stop delivery of Products in transit and withhold shipments in whole, if payment is delayed, or if Customer otherwise does not perform its obligations in this Agreement. Further, a late payment interest of five percent (5%) per year shall apply.
6.3 Reimbursement. Customer shall reimburse Service Provider for reasonable travel expenses and other out-of-pocket expenses incurred directly and solely in connection with the Agreement, provided that such costs have been approved in advance by Customer.
6.4 Payment of Taxes. Each Party will be responsible for its own taxes incurred by such Party in connection with its business and with performing its obligations hereunder.
Proprietary Rights
7.1 Service Provider retains ownership and title to the software the Service Provider uses or offers in connection with performing the Services (including, but not limited to, the dashboard) (the “Software”). In this context, Service Provider grants to Customer access to the Software on a non-exclusive basis. Customer is granted no ownership rights or exclusive or sole license to the Software. Customer understands and agrees not to directly, or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software. Customer agrees not to modify, translate, or create derivative works based on any aspect of the Software. Customer understands that it has no rights to copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or any of its components.
7.2 Record Retention. All Records will be retained by Service Provider for a period of five (5) years, or such longer period as required under applicable law or regulation (the “Record Retention Period”). At the end of the Record Retention Period, such Records will, at Service Provider’s sole discretion, either be (a) delivered to Customer or to its designee, or (b) disposed of. Service Provider may retain copies of any Records as are reasonably necessary for regulatory or insurance purposes, subject to Service Provider’s obligations of confidentiality under this Agreement.
Confidential Information
8.2 Obligations of Confidentiality. During the term of this Agreement and for a period of five (5) years thereafter, except as otherwise expressly provided in this Agreement, Service Provider will not, directly or indirectly, publish, disseminate or otherwise disclose, or deliver or make available to any third party, or use any Confidential Information, other than in furtherance of the purposes of this Agreement. Service Provider will exercise all reasonable precautions to protect the integrity and confidentiality of the Confidential Information. Service Provider may disseminate or permit access to Confidential Information only to Service Provider Personnel who have a need to know such Confidential Information in the course of the performance of their duties under this Agreement and who are bound to obligations of non-disclosure and non-use of the Confidential Information that are at least as restrictive as those set forth in this Agreement.
8.3 Exceptions. Service Provider will not have obligations of non-disclosure and non-use under this Agreement with respect to any portion of the Confidential Information that Service Provider can demonstrate, by clear and convincing evidence:
(a) is or later becomes generally available to the public through no fault of Service Provider;
(b) is obtained from a third party who is lawfully in possession of the Confidential Information and has the legal right to disclose such Confidential Information to Service Provider without obligation of confidentiality to Customer;
(c) Service Provider already possesses, other than by disclosure by Customer; or
(d) is independently discovered or developed by Service Provider without use of or reliance upon the Confidential Information.
In the event that Service Provider is required by order of a court or other government entity having jurisdiction to disclose any Confidential Information, Service Provider will give Customer prompt notice thereof so that Customer may seek an appropriate protective order. Service Provider will reasonably cooperate with Customer in its efforts to seek such a protective order.
Liability
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS AND THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY. THEREFORE, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY LEGAL THEORY (WHETHER TORT, CONTRACT OR OTHERWISE) FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER. BOUNDARIES OF APPLICABLE MANDATORY LAW TO THE LIMITATION AND EXCLUSION OF LIABILITY, SUCH AS FOR WILLFULL MISCONDUCT, REMAIN RESERVED.
Expiration and Termination
10.2 Each Party may immediately terminate this Agreement at any time upon written notice to the other Party in the event of a breach of this Agreement or any Work Order by the other Party which cannot be cured (e.g., a breach of the confidentiality obligations) or which the other Party fails to cure after having been granted in writing a reasonable curing period of no less than ten (10) days. Further, any Party may terminate this Agreement or any Work Order at any time upon thirty (30) days prior written notice to the other Party.
10.3 Termination for insolvency. Either Party may elect to immediately terminate this Agreement to the extent permitted by applicable law in the event of a commencement by the other Party of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or the entry of a decree or order for relief in respect of the other Party in a case under any such law or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the other Party, or for any substantial part of the property of the other party, or ordering the wind-up or liquidation of the affairs of the other Party; or the filing and pendency for thirty (30) days without dismissal of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law; or the making by the other party of any general assignment for the benefit of creditors; or the failure of the other party generally to pay its debts as such debts become due; or the taking of action by the other party in furtherance of any of the foregoing.
10.4 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, neither Service Provider nor Customer will have any further obligations under this Agreement, except that:
(a) Service Provider will terminate all Services in progress in an orderly manner as soon as practicable and in accordance with a schedule agreed to by Customer, unless Customer specifies in the notice of termination that Services in progress should be completed;
(b) Customer will pay Service Provider any monies due and owing Service Provider, up to the time of termination or expiration, for Services properly performed and all authorized expenses actually incurred (as specified in the applicable Work Order);
(d) Service Provider will promptly refund any monies paid in advance by Customer for Services not rendered;
(d) Service Provider will promptly return to Customer all copies of all Confidential Information in Service Provider’s possession or control that relate to this Agreement or, if this entire Agreement has not been terminated or has not expired, that relate to any Work Order which has been terminated or has expired, except for one (1) copy which Service Provider may retain solely to monitor Service Provider’s surviving obligations of confidentiality; and
(e) the terms, conditions and obligations under Sections 7, 8, 9 and 11 will survive any such termination or expiration.
Miscellaneous
11.2 Use of Names. Neither Party has the right to use the other Party’s name or the names of the other Party’s employees in any advertising, sales promotional material or press release without the prior written permission of the other Party, except to the extent such disclosure is reasonably necessary for (a) prosecuting or defending litigation, and (b) complying with (i) applicable governmental regulations and legal requirements and (ii) the requirements of any stock exchange or stock listing entity.
11.3 Notices. All notices required or permitted under this Agreement must be in writing and must be given by addressing the notice to the address for the recipient set forth in this Agreement or at such other address as the recipient may specify in writing under this procedure. Notices to Customer will be marked “Attention: Chief Executive Officer”. Notices to Service Provider will be marked “Attention: Chief Executive Officer”. Notices will be deemed to have been given (a) three (3) business days after deposit in the mail with proper postage for first class registered or certified mail prepaid, or (b) one (1) business day after sending by nationally recognized overnight delivery service.
11.4 Assignment. This Agreement may not be assigned or transferred, in whole or in part, by either party without the prior written consent of the other party. However, either Party may transfer or assign this Agreement, in whole or in part without the prior written consent of the other Party, to an Affiliate of such Party, or in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates, provided that all obligations of the assigning Party are assumed by the assignee.
11.5 Entire Agreement. This Agreement (together with all parts and elements described in Section 1.1) constitutes the entire agreement of the Parties with regard to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between the Parties with regard to such subject matter.
11.6 No Modification. This Agreement may be amended only in writing (including any form permitted as per Section 11.11).
11.7 Severability; Reformation. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the other terms of this Agreement in such jurisdiction, or the terms of this Agreement in any other jurisdiction. The Parties will substitute for the invalid or unenforceable provision a valid and enforceable provision that conforms as nearly as possible with the original intent of the Parties.
11.8 Force Majeure. A Party will be excused from performing its obligations under this Agreement to the extent that its performance is delayed or prevented by an event beyond the reasonable control of the Party (“Force Majeure”). To be excused, the Party claiming Force Majeure must promptly notify the other and exercise due diligence to avoid, remove or overcome the Force Majeure. In the event that Service Provider’s performance is excused because of a Force Majeure, Customer may replace the part of Service Provider’s performance that is delayed or prevented from another source. Service Provider’s fee will be equitably adjusted. The following is a non-exclusive list of examples that may qualify as a Force Majeure: fire, explosion, general labour strikes, acts of God, epidemics, pandemics, natural disasters, war, insurrection, civil strife, government acts, acts of terrorism, extreme weather, sabotage, changes in governmental laws, orders, restrictions, actions, embargoes or blockades, a national or regional emergency, shortage of or inability to obtain raw materials and other critical components that could not have been avoided through the exercise of due diligence and good supply chain management.
11.9 Governing Law and Jurisdiction. This Agreement will be construed and interpreted and its performance governed by the laws of Switzerland, excluding its rules for choice of law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the ordinary courts of Zurich 1, Switzerland, without limiting any right to appeal.
11.10 Waiver. No waiver of any term, provision or condition of this Agreement in any one or more instances will be deemed to be or construed as a further or continuing waiver of any other term, provision or condition of this Agreement. Any such waiver must be evidenced by an instrument in writing executed by an officer authorized to execute waivers.
11.11 Form Requirements. This Agreement may be executed in writing or in electronic form (such as an electronic file which contains a scan of the wet ink signature or signed by Skribble, DocuSign or AdobeSign or a similar tool) and be delivered by electronic mail or another transmission method; the counterpart so executed and delivered shall be deemed to have been duly executed and validly delivered and be valid and effective for all purposes.
11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
11.13 Headings. This Agreement contains headings only for convenience and such headings should not be used in the construction of this Agreement.
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These general terms of service (the “General Terms of Service) regulate the contractual relationship entered into by and between you (the “Customer”) and Innovire AG, a corporation established under Swiss law, having its registered office at Stettbachstrasse 6, 8600 Dübendorf, Switzerland (the “Service Provider”, together with the Customer the “Parties” and each a “Party”) (the “Agreement”).
Background and Agreement Structure
1.1 The Agreement consists of the following elements which shall, in case of any discrepancy or conflict, prevail in the following order (lower number governs over higher number):
Work Order (defined below)
These General Terms of Service
1.2 Customer requests Service Provider to provide services (including, but not limited to, the Software defined in Section 7.1) (the “Services”) and (as the case may be) products (the “Products”) as defined in this Agreement.
1.3 Service Provider and Customer must complete and execute work orders (each, a “Work Order”) before any Services are provided or Products are delivered. Each Work Order will include the information relating to the specific Services and/or Products. Once executed, a Work Order becomes part of this Agreement, although the terms in a Work Order will govern only the Services and/or Products described in that Work Order.
Services and Products
2.1 Provision of Services. Service Provider agrees to provide the Services identified in the Agreement (including, but not limited to, the Software defined in Section 7.1). The provision of the Services shall be subject to the limited or excluded representations and warranties according to Section 4.
2.2 Provision of Products. Service Provider agrees to sell the Products (including, but not limited to, thermal cameras) identified in the Agreement. Such purchase agreements shall be subject to the limited or excluded representations and warranties according to Section 4.
2.3 Standard Operating Procedures. Service Provider will, upon request and under confidentiality, supply copies to Customer of all standard operating procedures of Service Provider relevant to the Services rendered and the Products sold under this Agreement.
2.4 Subcontracting. Service Provider may subcontract the performance of certain portions of the Services to an Affiliate (defined below) of Service Provider or to a qualified third party; provided, that (a) Service Provider notifies Customer in writing of the Affiliate or proposed subcontractor and identifies the specific Services to be performed by such Affiliate or subcontractor, (b) such Affiliate or subcontractor performs those Services in a manner consistent with the terms, conditions and obligations of this Agreement, and (c) Service Provider remains liable for the performance of such Affiliate or subcontractor. “Affiliate” means, with respect to each party to this Agreement, any corporation, company, partnership, joint venture and/or firm which controls, is controlled by or is under common control with that party. As used in this Section 2.4, “control” means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (ii) in the case of non‑corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non‑corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such non-corporate entity.
2.5 Change Orders. If the scope of work under this Agreement changes, then the Agreement may be amended as provided in this Section 2.5. If a required modification to the Agreement is identified by Customer or by Service Provider, the identifying Party will notify the other Party in writing as soon as reasonably possible. Within ten (10) business days of receiving or sending such notice, Service Provider will provide Customer with a change order containing a description of the required modifications and their effect on the scope, fees and timelines specified in the Agreement (each, a “Change Order”). No Change Order will be effective unless and until it has been signed by an authorized representative of each Party. If Customer does not approve such Change Order, then the Parties will use reasonable efforts to agree on a Change Order that is mutually acceptable. If practicable, Service Provider will continue to provide Services under the existing Agreement during any such negotiations, provided such efforts would facilitate the completion of the work envisioned in the proposed Change Order, but will not commence work in accordance with the Change Order until it is authorized in writing by Customer. Nothing in this Section 2.5 will limit Customer’s right to terminate this Agreement under Section 10.
No Professional Advice
NOTHING PROVIDED BY SERVICE PROVIDER IN CONNECTION WITH THE SERVICES AND/OR THE PRODUCTS, SHALL BE CONSTRUED TO CONSTITUTE PROFESSIONAL ADVICE OR SUPPORT WITH RESPECT TO COMPLYING WITH FIRE PREVENTION OR OTHER SAFETY LAWS AND REGULATIONS, AND CUSTOMER SHOULD NOT RELY ON THEM AS SUCH. CUSTOMER’S DECISION TO RELY ON ANY INFORMATION OR DATA OR OTHER RESULTS IT OBTAINS IN CONNECTION WITH ITS USE OF THE SERVICES AND/OR PRODUCTS IS AT ITS SOLE DISCRETION AND RISK. SERVICE PROVIDER DOES NOT PROMISE ANY PARTICULAR RESULTS, INCLUDING THE PREVENTION OF FIRES OR OTHER HAZARDS.
Representations and Warranties by Service Provider and Failure to Perform
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS, THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY AND THAT THEREFORE, THE SERVICE PROVIDER EXCLUDES ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND THE PRODUCTS. THE SERVICE PROVIDER DOES IN PARTICULAR NOT GIVE ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE USEFULNESS, CORRECTNESS, CORRECT OPERATION OR SUCCESS OF THE SERVICES AND PRODUCTS (OR ITS RESULTS).
CUSTOMER ACKNOWLEDGES AND AGREES THAT IT CANNOT AND SHALL NOT RELY ON THE SERVICES OR PRODUCTS FOR FIRE PREVENTION OR SIMILAR PURPOSES.
Obligations of Customer
If specified in a Work Order, Customer shall be obliged to adhere to the instructions of use attached or referred to in the Work Order (the “Instructions of Use”). The representations and warranties according to Section 4 above (if any) are made and provided under the condition that and subject to such instructions of use being at all times be fully complied with by the Customer.
Compensation
6.1 Fees. As full and complete consideration for the Services and Products, Customer will pay Service Provider as set forth in the applicable Work Order. Customer shall pay said invoices, provided that the invoice is valid and undisputed, within thirty (30) days of receipt, unless the payment conditions of the Work Order provide otherwise.
6.2 Late Payment. Service Provider reserves the right to cancel or stop delivery of Products in transit and withhold shipments in whole, if payment is delayed, or if Customer otherwise does not perform its obligations in this Agreement. Further, a late payment interest of five percent (5%) per year shall apply.
6.3 Reimbursement. Customer shall reimburse Service Provider for reasonable travel expenses and other out-of-pocket expenses incurred directly and solely in connection with the Agreement, provided that such costs have been approved in advance by Customer.
6.4 Payment of Taxes. Each Party will be responsible for its own taxes incurred by such Party in connection with its business and with performing its obligations hereunder.
Proprietary Rights
7.1 Service Provider retains ownership and title to the software the Service Provider uses or offers in connection with performing the Services (including, but not limited to, the dashboard) (the “Software”). In this context, Service Provider grants to Customer access to the Software on a non-exclusive basis. Customer is granted no ownership rights or exclusive or sole license to the Software. Customer understands and agrees not to directly, or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software. Customer agrees not to modify, translate, or create derivative works based on any aspect of the Software. Customer understands that it has no rights to copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or any of its components.
7.2 Record Retention. All Records will be retained by Service Provider for a period of five (5) years, or such longer period as required under applicable law or regulation (the “Record Retention Period”). At the end of the Record Retention Period, such Records will, at Service Provider’s sole discretion, either be (a) delivered to Customer or to its designee, or (b) disposed of. Service Provider may retain copies of any Records as are reasonably necessary for regulatory or insurance purposes, subject to Service Provider’s obligations of confidentiality under this Agreement.
Confidential Information
8.2 Obligations of Confidentiality. During the term of this Agreement and for a period of five (5) years thereafter, except as otherwise expressly provided in this Agreement, Service Provider will not, directly or indirectly, publish, disseminate or otherwise disclose, or deliver or make available to any third party, or use any Confidential Information, other than in furtherance of the purposes of this Agreement. Service Provider will exercise all reasonable precautions to protect the integrity and confidentiality of the Confidential Information. Service Provider may disseminate or permit access to Confidential Information only to Service Provider Personnel who have a need to know such Confidential Information in the course of the performance of their duties under this Agreement and who are bound to obligations of non-disclosure and non-use of the Confidential Information that are at least as restrictive as those set forth in this Agreement.
8.3 Exceptions. Service Provider will not have obligations of non-disclosure and non-use under this Agreement with respect to any portion of the Confidential Information that Service Provider can demonstrate, by clear and convincing evidence:
(a) is or later becomes generally available to the public through no fault of Service Provider;
(b) is obtained from a third party who is lawfully in possession of the Confidential Information and has the legal right to disclose such Confidential Information to Service Provider without obligation of confidentiality to Customer;
(c) Service Provider already possesses, other than by disclosure by Customer; or
(d) is independently discovered or developed by Service Provider without use of or reliance upon the Confidential Information.
In the event that Service Provider is required by order of a court or other government entity having jurisdiction to disclose any Confidential Information, Service Provider will give Customer prompt notice thereof so that Customer may seek an appropriate protective order. Service Provider will reasonably cooperate with Customer in its efforts to seek such a protective order.
Liability
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND PRODUCTS ARE PROVIDED ON A PROOF-OF-CONCEPT (POC) BASIS AND THAT THE SERVICES AND PRODUCTS ARE NOT MARKET-READY. THEREFORE, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY LEGAL THEORY (WHETHER TORT, CONTRACT OR OTHERWISE) FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER. BOUNDARIES OF APPLICABLE MANDATORY LAW TO THE LIMITATION AND EXCLUSION OF LIABILITY, SUCH AS FOR WILLFULL MISCONDUCT, REMAIN RESERVED.
Expiration and Termination
10.2 Each Party may immediately terminate this Agreement at any time upon written notice to the other Party in the event of a breach of this Agreement or any Work Order by the other Party which cannot be cured (e.g., a breach of the confidentiality obligations) or which the other Party fails to cure after having been granted in writing a reasonable curing period of no less than ten (10) days. Further, any Party may terminate this Agreement or any Work Order at any time upon thirty (30) days prior written notice to the other Party.
10.3 Termination for insolvency. Either Party may elect to immediately terminate this Agreement to the extent permitted by applicable law in the event of a commencement by the other Party of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or the entry of a decree or order for relief in respect of the other Party in a case under any such law or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the other Party, or for any substantial part of the property of the other party, or ordering the wind-up or liquidation of the affairs of the other Party; or the filing and pendency for thirty (30) days without dismissal of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law; or the making by the other party of any general assignment for the benefit of creditors; or the failure of the other party generally to pay its debts as such debts become due; or the taking of action by the other party in furtherance of any of the foregoing.
10.4 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, neither Service Provider nor Customer will have any further obligations under this Agreement, except that:
(a) Service Provider will terminate all Services in progress in an orderly manner as soon as practicable and in accordance with a schedule agreed to by Customer, unless Customer specifies in the notice of termination that Services in progress should be completed;
(b) Customer will pay Service Provider any monies due and owing Service Provider, up to the time of termination or expiration, for Services properly performed and all authorized expenses actually incurred (as specified in the applicable Work Order);
(d) Service Provider will promptly refund any monies paid in advance by Customer for Services not rendered;
(d) Service Provider will promptly return to Customer all copies of all Confidential Information in Service Provider’s possession or control that relate to this Agreement or, if this entire Agreement has not been terminated or has not expired, that relate to any Work Order which has been terminated or has expired, except for one (1) copy which Service Provider may retain solely to monitor Service Provider’s surviving obligations of confidentiality; and
(e) the terms, conditions and obligations under Sections 7, 8, 9 and 11 will survive any such termination or expiration.
Miscellaneous
11.2 Use of Names. Neither Party has the right to use the other Party’s name or the names of the other Party’s employees in any advertising, sales promotional material or press release without the prior written permission of the other Party, except to the extent such disclosure is reasonably necessary for (a) prosecuting or defending litigation, and (b) complying with (i) applicable governmental regulations and legal requirements and (ii) the requirements of any stock exchange or stock listing entity.
11.3 Notices. All notices required or permitted under this Agreement must be in writing and must be given by addressing the notice to the address for the recipient set forth in this Agreement or at such other address as the recipient may specify in writing under this procedure. Notices to Customer will be marked “Attention: Chief Executive Officer”. Notices to Service Provider will be marked “Attention: Chief Executive Officer”. Notices will be deemed to have been given (a) three (3) business days after deposit in the mail with proper postage for first class registered or certified mail prepaid, or (b) one (1) business day after sending by nationally recognized overnight delivery service.
11.4 Assignment. This Agreement may not be assigned or transferred, in whole or in part, by either party without the prior written consent of the other party. However, either Party may transfer or assign this Agreement, in whole or in part without the prior written consent of the other Party, to an Affiliate of such Party, or in connection with a merger, consolidation, or a sale or transfer of all or substantially all of the assets to which this Agreement relates, provided that all obligations of the assigning Party are assumed by the assignee.
11.5 Entire Agreement. This Agreement (together with all parts and elements described in Section 1.1) constitutes the entire agreement of the Parties with regard to its subject matter, and supersedes all previous written or oral representations, agreements and understandings between the Parties with regard to such subject matter.
11.6 No Modification. This Agreement may be amended only in writing (including any form permitted as per Section 11.11).
11.7 Severability; Reformation. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the other terms of this Agreement in such jurisdiction, or the terms of this Agreement in any other jurisdiction. The Parties will substitute for the invalid or unenforceable provision a valid and enforceable provision that conforms as nearly as possible with the original intent of the Parties.
11.8 Force Majeure. A Party will be excused from performing its obligations under this Agreement to the extent that its performance is delayed or prevented by an event beyond the reasonable control of the Party (“Force Majeure”). To be excused, the Party claiming Force Majeure must promptly notify the other and exercise due diligence to avoid, remove or overcome the Force Majeure. In the event that Service Provider’s performance is excused because of a Force Majeure, Customer may replace the part of Service Provider’s performance that is delayed or prevented from another source. Service Provider’s fee will be equitably adjusted. The following is a non-exclusive list of examples that may qualify as a Force Majeure: fire, explosion, general labour strikes, acts of God, epidemics, pandemics, natural disasters, war, insurrection, civil strife, government acts, acts of terrorism, extreme weather, sabotage, changes in governmental laws, orders, restrictions, actions, embargoes or blockades, a national or regional emergency, shortage of or inability to obtain raw materials and other critical components that could not have been avoided through the exercise of due diligence and good supply chain management.
11.9 Governing Law and Jurisdiction. This Agreement will be construed and interpreted and its performance governed by the laws of Switzerland, excluding its rules for choice of law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the ordinary courts of Zurich 1, Switzerland, without limiting any right to appeal.
11.10 Waiver. No waiver of any term, provision or condition of this Agreement in any one or more instances will be deemed to be or construed as a further or continuing waiver of any other term, provision or condition of this Agreement. Any such waiver must be evidenced by an instrument in writing executed by an officer authorized to execute waivers.
11.11 Form Requirements. This Agreement may be executed in writing or in electronic form (such as an electronic file which contains a scan of the wet ink signature or signed by Skribble, DocuSign or AdobeSign or a similar tool) and be delivered by electronic mail or another transmission method; the counterpart so executed and delivered shall be deemed to have been duly executed and validly delivered and be valid and effective for all purposes.
11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
11.13 Headings. This Agreement contains headings only for convenience and such headings should not be used in the construction of this Agreement.
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