Effective: March 2021, version 1.6
These General Terms and Conditions (hereinafter referredto as “GTC”) apply to all subscriptions, orders or othercontractual relationships between 9T Labs AG (hereinafterreferred to as “9T LABS”) as well as all its worldwideaffiliates and its Customers (hereinafter referred to as“Customer”) as well as all their worldwide affiliates,provided no deviating regulations are in place for aparticular service or a particular group of customers asreferenced to in 9T LABS’ offerings. Any terms definedherein shall apply accordingly to any special service terms(“Special Terms”) unless stated otherwise therein. Thesespecial service terms shall be an integral part of these GTC.
Each 9T LABS and Customer may also be referred to as“Party” or together as “Parties” hereinafter.
BEFORE USING ANY OF 9T LABS’ SERVICES, PLEASE READTHESE GTC CAREFULLY. BY USING THE SERVICES, YOUAGREE TO ALL THE TERMS AND CONDITIONS OF THESEGTC. IF YOU DO NOT AGREE TO THESE TERMS ANDCONDITIONS YOU MAY NOT USE THE SERVICES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT IT IS YOURSOLE RESPONSIBILITY TO COMPLY WITH ALL THE LEGALREQUIREMENTS IN THE COUNTRIES IN WHICH YOU AREUSING THE SERVICES.
IN THE EVENT OF ANY CONFLICT, THE ORDER, STATEMENTOF WORK OR ANOTHER LEGALLY BINDING INDIVIDUALAGREEMENT BETWEEN THE PARTIES SHALL GOVERN OVERTHE CONFLICTING PROVISIONS OF THESE GTC.
“Account” shall mean an account enabling Customer toaccess and use the Services.
“Consulting Services” shall mean any services , includingbut not limited to engineering services, productionevaluations, production case evaluations or business caseevaluations, which 9T Labs may provide to Customer at anadditional cost, and which are not included in the ServicesFees pursuant to the respective Subscription Type.Examples of such Consulting Services include changes toconfiguration and workflows, consultancy services as wellas the design, simulation, or manufacturing of parts,prototypes or moulds.
“Authorized User” shall mean those of Customer’semployees who are adequately qualified to use the Servicesand Hardware and have completed the relevantinstructions and courses provided by 9T LABS from time totime.
"Business Day" shall mean Monday to Friday excludingpublic holidays in Zurich, Switzerland.“Customer Content” shall mean any information or data(including Personal Data and Customer Personal Data)Customer or Authorized Users of Customer provide whenusing 9T LABS’ Services.
“Data Protection Law(s)” shall mean all applicable laws andregulations regarding the protection of Personal Dataincluding, in particular, the General Data ProtectionRegulation (GDPR) (EU) 2016/679 (https://gdpr-info.eu/)and the data protection laws of Switzerland as amendedfrom time to time.
“Customer Data” shall be any information of Customer orits Authorized Users which they actively provide to 9T LABS,which is generated during the use of the Services or whichcomes into 9T LABS’ possession otherwise, in accordancewith these GTC, during the provision of the Services.
“Data Controller”, “Data Processor” and “Data Subject” shalleach have the meaning given to it by the applicable DataProtection Laws.
“Deliverables” shall mean the results arising out of, orcreated during the performance of Consulting Services by9T Labs and as described in a purchase order .
“Documentation” shall mean any information or instructionthat is provided on the Website in connection with theprovision of the Services or the respective SubscriptionType, including in particular any requirements of thecustomer environment for the proper use of the Services.Any use, not in accordance with the by 9T LABS providedDocumentation is strictly prohibited."Fee(s)" shall mean the fee specified on the Website oroffering for the Services.
“Hardware” shall mean any specially designed hardwareprovided to Customer by 9T LABS on a rental basis asServices.
“Intellectual Property (IP)” shall mean and includes, to theextent recognized under applicable law, rights in Hardwareand Software, including in particular source code and allrelated documentation, patents, patent applications,copyrights, trademarks, service marks, trade names,internet domain names, email address names, tradesecrets, moral rights, database rights, customer lists, designrights, know-how, techniques, processes, methods,inventions (whether patentable or not), conceptions,discoveries, improvements, chip designs, mask works,proprietary information, technical information,specifications, and all other rights of authorship andintellectual and industrial property rights, and otherequivalent or similar rights which may subsist anywhere inthe world, whether registered or unregistered, includingany form of application for any of the foregoing.
“Personal Data” shall have the meaning given to it by theapplicable Data Protection Laws.
“Services” shall mean any subscription services provided by9T LABS to Customer including but not limited to Hardwareand Software (Hosted Services and Software on premise) asdefined in the offering.
“Set-Up” shall mean the initial configuration of the Servicesby 9T LABS.
“Software” shall mean any software (hosted and/or onpremise) used to provide the Services hereunder (including,for the avoidance of doubt, software from one of 9T LABS’suppliers), and includes in particular the source code,database elements and accompanying documentation(operating manuals, instructions for installation andadministration, technical literature and otherdocumentation on paper and/or in electronic form).
“Support Portal” shall mean 9T LABS’ support to Customerregarding errors in the Services during the support hoursstated hereunder.
“Subscription Term” shall mean the initial 24 month periodas well as any subsequent 12 month extension periodduring which Customer is paying the Fee for the respectiveSubscription Type.
“Subscription Type” shall mean the different types ofServices offered by 9T LABS to Customer from time to time.
“Website” means www.9tlabs.com.
1. Services by 9T Labs
1.1 The Services offered by 9T LABS are described on theWebsite from time to time. Customer can choosebetween different Subscription Types for a Fee. 9TLABS reserves the right to reject a request forsubscription at its sole discretion without giving areason.
1.2 Customer shall receive a limited, revocable,non-exclusive, non-assignable, worldwide right toaccess and use the Services according to the chosenSubscription Type during the Subscription Term inaccordance with the terms and conditions of theseGTC.
1.3 Customer acknowledges and agrees that these GTCare service terms and that 9T LABS will not deliverany copies or licenses of the Software to Customeras part of the provision of the Services describedherein.
1.4 Customer shall ensure that only Authorized Usersaccess the Services and that these Authorized Userscomply with the provisions of these GTC.
1.5 9T LABS may, at its own discretion, change ordiscontinue the Services at any time if it shall berequired subject to statutory legal provisions of thelaws of Switzerland or any other applicable laws.
2. Customer’s Obligations
2.1 Restrictions. Customer shall not, and shall notpermit anyone to (i) copy or otherwise reproducethe Services; (ii) make the Services available toanyone other than Authorized Users; (iii) modify,adapt, create derivative works of, reverse engineer,decompile, disassemble or otherwise interfere withthe Services; (iv) attempt to derive the source codeof the Software used to provide the Services; (v)access or use the Services to provide services to thirdparties; (vi) access the Services in order to build asimilar product that would violate 9T LABS’ or, ifapplicable, its supplier’s IP; or (vii) license, sell, rent,lease, transfer, assign, distribute, display, host,outsource, disclose or otherwise commerciallyexploit or make the Services available to any thirdparty.
2.2 Payment of Fees. Customer shall be responsible forthe timely payment of the Fees otherwise theServices may be suspended in accordance with theseGTC.
2.3 Compliance with Laws. Customer shall ensure itscompliance, as well as the compliance of all itsAuthorized Users, with the applicable laws andregulations. The Services may not be used in anyjurisdiction for unlawful, obscene, offensive orfraudulent content or activity, such as advocating orcausing harm, interfering with or violating theintegrity or security of a network or system, evadingfilters, sending unsolicited, abusive, or deceptivemessages, viruses or harmful code, or violating thirdparty rights. If there is a complaint or notice ofviolation, use may be suspended until resolved, andterminated if not resolved promptly. Customer shallhold 9T LABS and all its affiliates, directors andemployees harmless from and against any claimsthat may arise out of Customer’s violation of theapplicable laws and regulations.
2.4 No unauthorized users. Customer may access theServices only to the extent of authorizationsacquired by Customer and it shall ensure that onlyAuthorized Users may access the Services. In anycase, Customer is responsible for use of the Servicesby any user who accesses them with Customer’sAccount credentials.
2.5 Customer Content. Customer shall be solelyresponsible for ensuring the correctness, accuracyand lawfulness of Customer Content and itsappropriate protection and backup. Customer shallbe responsible for obtaining all necessary rights andpermissions to enable, and grants such rights andpermissions to, 9T LABS, and its contractors andsubprocessors to use, provide, store and process Customer Content in the Services. This includesCustomer making necessary disclosures andobtaining consent, if required, before providingindividuals’ information, including personal or otherregulated information in such Customer Content. Ifany Customer Content could be subject togovernmental regulation or may require securitymeasures beyond those specified by 9T LABS for anoffering, Customer will not input, provide, or allowsuch Customer Content unless specifically permittedor unless 9T LABS has otherwise first agreed inwriting to implement additional security and othermeasures. Customer shall indemnify and hold 9TLABS and all its affiliates, directors and employeesharmless from and against any claims that may ariseout of or in connection with incorrect, inaccurate orunlawful Customer Content. No warranties,indemnifications or other liabilities shall apply to 9TLABS for any Customer Content.
2.6 Customer Environment. Customer will providehardware, software and connectivity to access anduse the Services, including any requiredcustomer-specific URL addresses and associatedcertificates. Equipment and system requirements forthe use of the Services are described in theDocumentation and/or individual offering. Customeracknowledges and accepts that it may only use theServices if all the Customer Environmentrequirements as described in the Documentation oron the Website from time to time are met. It isCustomer’s sole responsibility to adhere to theserequirements and 9T LABS shall have no furtherresponsibilities therein. The Customer shall beobliged to keep additional system componentsspecified in the Documentation or on the Websitefrom time to time up to date and in line with thetechnical development. The offering may haveadditional Customer Environment requirements.
2.7 No Resale. Customer may not resell the Services ordirect access to the Services to a third party outsideCustomer’s enterprise or combine the Services withCustomer’s value add to create a commerciallyavailable Customer branded solution for whichCustomer charges a fee.
3 Subscription and Payment
3.1 Subscription Types. Customer acknowledges andagrees that the chosen Subscription Type is offeredto it as described on the Website from time to timeor in an individual offering. Any such description andits corresponding Documentation shall be an integralpart of these GTC. Customer is responsible to assessthe suitability of the chosen Subscription Type forCustomer’s intended use and Customer Content. Byusing the chosen Subscription Type, Customeracknowledges that it meets Customer’srequirements.
3.2 Subscription Term. Unless otherwise specified in anoffer, the initial Subscription Term shall be 24months, after which the Subscription shall beautomatically extended for a further 12 monthsunless and until terminated by either Party inaccordance with these GTC.
3.3 Support Portal. Customer may contact the 9T LABS’Support Portal via firstname.lastname@example.org fromMonday to Friday between 8am and 6pm CETexcluding any public holidays in Zurich, Switzerland.9T LABS shall use its commercially reasonable effortsto offer support to the Customer during these timesbut does not guarantee the support to beuninterrupted or that 9T LABS will correct all errorsreported.
3.4 Set-Up. The initial configuration is included in theFee.
3.5 Additional Services. Customer may request 9T LABSto provide Additional Services during theSubscription Term. Customer can purchase hours/days for these Additional Services at thethen-current rate. All prices stated are exclusive ofany VAT. 9T LABS reserves the right to chargeCustomer for any reasonable expenses incurred by itduring the provision of such Additional Services.Payment thereof is due within 30 days of receipt ofinvoice. In addition, the provisions set forth in theSwiss Code of Obligations (“Art. 394 ff. OR”) shallapply.
3.6 Payment. 9T LABS takes all the payment due underthe respective Subscription Type at the beginning ofthe Subscription Term and stores the paymentinformation securely (Fees may be invoiced ifapplicable for the respective Customer). Customershall receive the log in details once cleared paymentis received by 9T LABS. Unless specified otherwise,Fees are payable in Swiss Francs (CHF). All Fees arepayable, without set-offs or deductions, within 30days following receipt of an invoice.
3.7 Automatic renewal. The Subscription Type renewsautomatically at the end of each Subscription Term.Payment is taken automatically at the beginning ofthe new Subscription Term (or invoiced to Customerif applicable). Customer will be notified of theupcoming renewal and provided with a link to thethen-current Fees 90 days before the beginning ofthe new Subscription Term. If Fee is due in excess of10 days, 9T LABS will withdraw access to theServices.
3.8 Taxes. All Fees payable under these GTC are exclusiveof any taxes and VAT. Each Party shall be responsible,as required by the applicable law, for identifying andpaying all taxes, fees and charges that are imposedupon that Party or with respect to the transactionand payments under these GTC. All customs and VATfees and any other taxes and fees applicable forshipping the Hardware to Customer’s premises shallbe solely at Customer’s account.
4 Subscription Type9T LABS offers a variety of different SubscriptionTypes to their Services from time to time. Anyspecific terms defined for the respective SubscriptionType hereunder shall be applicable where Customersubscribes to such a Service and prevail over anyconflicting provisions under these GTC.4.1 ADDITIONAL TERMS FOR HARDWARE
4.1.1 Ownership. Any Hardware provided by 9T LABS toCustomer is provided on a rental basis for theSubscription Term and shall remain 9T LABS exclusiveproperty. Unless stated otherwise hereunder, theprovisions set forth in the Swiss Code of Obligationsshall apply with regards to the Hardware provided ona rental basis during the Subscription Term.
4.1.2 Restrictions. The establishment of rights of lien orretention over the Hardware for the benefit of thirdparties is expressly prohibited. In case of attachment,retention, confiscation or appropriation of assets,Customer shall immediately notify 9T LABS andinform the responsible debt enforcement office orbankruptcy authority that the Hardware is theproperty of 9T LABS.
4.1.3 Delivery. Upon receipt of the Hardware, Customer isobliged to inspect the delivered Hardwareimmediately for its correctness and completeness,for potential transport damage and for defects.Customer is obliged to notify 9T LABS immediately,and in any event no later than 5 Business Days ofreceipt, of any such defects, otherwise the Hardwareshall be deemed accepted by Customer. If thedelivery is carried out by a service partner, theCustomer must state the defect on the delivery note.
4.1.4 Return. At the end of the Subscription TermCustomer is obliged to return the Hardware to 9TLABS within 5 Business Days at its own costs. TheHardware shall be returned undamaged. ShouldCustomer fail to meet this obligation, 9T LABS shallapply a fee as described in the Documentation.
4.2 ADDITIONAL TERMS FOR HOSTED SERVICES
4.2.1 Platform. The hosting services (“Hosted Services”)provided by 9T LABS are hosted on a platform(“Platform”). The Hosted Services are designed to beavailable 24/7, subject to scheduled maintenancewhich Customer will be notified of in advance. 9TLABS shall use reasonable commercial endeavors tomaintain the availability of the Platform and HostedServices. 9T LABS cannot and does not, however,guarantee a certain percentage of availability orother service level unless otherwise agreed in anoffering. In particular, without limitation, thePlatform and Hosted Services may not be available ina force majeure event, in the event of a fault orfailure of the internet or any publictelecommunications network or in the event of afault or failure of the computer systems or networks.
4.2.2 Changes. Customer acknowledges that 9T LABS maymodify the description of the Subscription Type andDocumentation from time to time at 9T LABS’ solediscretion and such modifications will supersedeprior versions. Any Subscriptions already in placeshall remain valid until the end of the Subscription.
4.3 ADDITIONAL TERMS FOR SOFTWARE ON PREMISE
4.3.1 Customer receives the quantity of Software for theSubscription Term as defined in the SubscriptionType. This includes general best effort maintenanceof Software during the Subscription Term unlessotherwise agreed in an offering. Customer alsoreceives the right to receive updates to the Softwareduring the Subscription Term. Implementation ofsuch updates is subject to a fee.
4.3.2 Records and Back-up. Customer shall keep recordswhich state the Software, its version, its location andthe number of copies made. 9T LABS shall bepermitted to review these records should 9T LABS,acting reasonably, believe that the Software is notbeing used in accordance with the GTC. Customershall be entitled to make one copy of the Softwarefor security and archiving purposes provided that allreferences to the property rights to the Software areretained.
4.3.3 Customer is obliged to abide to the Software’slifecycle and shall request installation of updatesimmediately after every new major release. 9T LABSwill inform Customer of such new major release.
4.3.4 Return of Software. Customer shall return theSoftware and any thereto related Documentation aswell as any back-up copies to 9T LABS or its suppliers(where applicable) at the end of the SubscriptionTerm.
4.4 ADDITIONAL TERMS FOR CONSULTING SERVICES
4.4.1 Additional Services. Customer may request 9T LABSto provide Consulting Services during theSubscription Term. Any Consulting Services to beperformed by 9T Labs shall be clearly identified in apurchase order, signed by both Parties and shall begoverned by 9T Labs Terms and Conditions forConsulting Services. Unless otherwise agreed inwriting by 9T Labs, such Consulting Services shall notbe included in the Fee. All prices stated are exclusiveof any applicable VAT and other taxes. 9T LABSreserves the right to charge Customer for anyreasonable expenses incurred by it during theprovision of such Consulting Services. Paymentthereof is due within 30 days of receipt of invoice. Inaddition, the provisions set forth in the Swiss Code ofObligations (“Art. 394 ff. OR”) shall apply.
5 Data Protection
5.1 Special Clauses for Data Protection:
a. 9T LABS ensures full data integrity of Customer Dataand Customer Personal Data in accordance with theapplicable Data Protection Laws from time to time.Some of 9T LABS’ data protection measures can befound underwww.9tlabs.com/data-protection-measures.
b. If Customer includes, or authorizes others to include,Personal Data in the Customer Content, Customerrepresents that it is either the Data Controller or thatit has, prior to agreeing to these GTC or extendingthe benefit of the Hosted Services to any other DataController, been instructed by or obtained theconsent of the relevant Data Controllers to enter intothese GTC. Customer appoints 9T LABS as a DataProcessor to process such Personal Data. Customerwill not use the Hosted Services in conjunction withPersonal Data to the extent that doing so wouldviolate Data Protection Laws.
c. Both Parties agree to abide to, and Customer shallensure that its Authorized Users abide to, theapplicable Data Protection Laws. Customer shall bethe Data Controller with regards to the CustomerPersonal Data it or its Authorized Users provide to 9TLABS during the provision of the Hosted Services and9T LABS shall be the Data Processor in relationthereto.
d. Customer shall, if applicable, procure, and be able todemonstrate that it has obtained, a valid consentfrom the Data Subject and that the Data Subject hasbeen informed of its right to withdraw such consentbefore the processing of its Personal Data.
e. Upon request by either party, 9T LABS, Customer ortheir affiliates will enter into additional agreementsas required by law in the prescribed form for theprotection of Personal Data included in the CustomerContent. The parties agree (and will ensure that theirrespective affiliates agree) that such additionalagreements will be subject to the terms of theseGTC.
f. Customer acknowledges and agrees that 9T LABSmay require to process Customer Personal Data inconnection with the Hosted Services. By submittingCustomer Personal Data to 9T LABS, Customer agreesthat 9T LABS and its Affiliates may process and storesuch Personal Data to the extent necessary to, and tothe sole purpose of, enabling 9T LABS to provide theHosted Services in accordance with these GTC and, ifapplicable, in accordance with the writteninstructions given by Customer from time to time. 9TLABS shall in due course notify Customer if itconsiders that it is required by law to act other thanin accordance with the instructions of Customer.
g. 9T LABS shall only process Customer Personal Datafor the purposes of these GTC and the properprovision of the Hosted Services hereunder. 9T LABSarranges for, and is able to demonstrate, that anysystem on which it keeps Customer Personal Data,including back up data, is secure and ensures fulldata integrity in email@example.com withthe data security requirements and good industrypractice.
h. The Parties arrange for that their internalorganization is set up in a way that enables them tocomply with the applicable Data Protection Laws andgood industry practice and that the technical andorganizational measures taken provide appropriateprotection regarding confidentiality, integrity,availability and capacity of the respective systems.Both Parties ensure that Personal Data and, ifapplicable, Customer Personal Data are onlydisclosed to or accessible by those employees orthird parties who need to have access to it for theproper use or performance of the Hosted Services.
i. 9T LABS shall be entitled to make back-up copies ofthe Customer Personal Data where this is requiredfor the proper performance of the Hosted Services orby the applicable laws and regulations.
j. 9T LABS shall not transfer Customer Personal Data tothird parties save where authorized or instructed bythe Customer in writing or where required by theapplicable Data Protection Laws or requested bycompetent governmental authorities.
k. 9T LABS shall in due course, and in any event withintwenty-four (24) hours, notify Customer in the eventthat it becomes aware of any breach of theapplicable Data Protection Laws which may impactthe safety of the Customer Personal Data in itspossession.
l. Customer agrees that 9T LABS may transferCustomer Personal Data across a country border,including outside the European Economic Area (EEA).In such a case, 9T LABS shall, where reasonablypracticable, anonymize that Personal Data so it is nolonger classified as Personal Data. Should such ananonymization not be possible, the parties or theirrelevant affiliates shall enter into separate standardunmodified EU Model Clause agreements in theircorresponding roles pursuant to EC Decision2010/87/EU (as amended or replaced, from time totime) with optional clauses removed.
6 Intellectual Property rights
6.1 9T LABS or, if applicable, its suppliers, shall own allright, title, and interest in, to and under theHardware or Software used to provide the Servicesand to the Services provided to Customer hereunder,including all Intellectual Property Rights throughoutthe world therein, and Customer, its AuthorizedUsers and its affiliates shall acquire no rights hereinwhatsoever. Customer shall only be entitled to usethe Services in accordance with these GTC and theDocumentation during the Subscription Term.Trademarks and logos used in connection with theServices are the trademarks of their respectiveowners. For the avoidance of doubt, 3D model files,which are uploaded or created by Customer inconnection with the Services, shall be and remainthe property of the Customer.
6.2 The Services may include licenses from third parties,including certain software, which is subject to freeand/or open-source software (“OSS”) license terms(together "Third Party Software"). OSS is, to theextent permitted by the applicable law, providedwithout any warranties and 9T LABS assumes noliability. Customer is aware of the fact that theSoftware incorporates such Third Party Software thatthese are subject to their own independent licenseterms. 9T LABS shall inform and make these licenseterms available in writing or electronically atCustomer’s prior written request. Customeracknowledges and agrees that it had satisfactoryopportunity to be informed about Third PartySoftware and its corresponding licenses. Customerrepresents and warrants that, with theunderstanding that its use of the Software under theterms of these GTC complies with such Third PartySoftware license terms.
6.3 The Intellectual Property arising out of or inconnection with the performance of any ConsultingServices by 9T Labs shall reside exclusively in 9T Labs.Notwithstanding the foregoing, Customer shall ownall right, title, and interest in, to and under theDeliverables arising out of any Consulting Servicesperformed by 9T Labs.
7.1 9T LABS endeavors to provide the Serviceshereunder in a professional manner consistent withgood industry practice and that the Services willperform substantially in accordance with theDocumentation. 9T LABS warranties shall not apply ifthere has been misuse, modification, damage notcaused by 9T LABS, Customer failure to complyapplicable law and regulations or with instructionsand Documentation provided by 9T LABS, or ifotherwise stated. The warranty for a chosenSubscription Type ends when such Subscription Termends. Third Party Software sold under these GTC issold as-is, without warranties of any kind. Thirdparties may provide their own warranties toCustomer.
7.2 THE SERVICES HEREUNDER ARE PROVIDED “AS IS”.EXCEPT TO THE EXTENT EXPRESSLY STATEDHEREUNDER, PROHIBITED BY THE APPLICABLE LAW,OR TO THE EXTENT ANY STATUTORY RIGHTS APPLYTHAT CANNOT BE EXCLUDED, LIMITED OR WAIVED,9T LABS AND ITS AFFILIATES (I) MAKE NOREPRESENTATIONS OR WARRANTIES OF ANY KIND,WHETHER EXPRESS, IMPLIED, STATUTORY OROTHERWISE REGARDING THE SERVICES OR ANYTHIRD PARTY CONTENT; AND (II) EXCLUDE ALLWARRANTIES, INCLUDING ANY IMPLIEDWARRANTIES OF (a) MERCHANTABILITY, QUALITY ORFITNESS FOR A PARTICULAR PURPOSE; (b) THAT THESERVICES WILL BE UNINTERRUPTED, FREE OFERRORS OR HARMFUL COMPONENTS OR THAT 9TLABS WILL CORRECT ALL ERRORS; AND (c) THAT THECUSTOMER CONTENT WILL BE SECURE OR NOTOTHERWISE LOST OR ALTERED.
8 Limitations of Liability
9T LABS’S AND ITS AFFILIATES’ TOTAL AGGREGATELIABILITY FOR DIRECT DAMAGES UNDER THESE GTCSHALL BE LIMITED, TO THE MAXIMUM EXTENTPERMITTED BY THE APPLICABLE LAWS, TO THE FEES6ACTUALLY PAID FOR THE PRODUCT(S) THROUGHWHICH THE CAUSE OF LIABILITY AROSE. 9T LABSSHALL NOT BE HELD LIABLE FOR ANY INDIRECT,EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES(INCLUDING BUT NOT LIMITED TO LOST PROFIT,REVENUE, BUSINESS, VALUE, CUSTOMERS,OPPORTUNITIES, ANTICIPATED SAVINGS, GOODWILL,REPUTATION, USE OR DATA, LOSS OF VIRUS, LOSS OFOR DAMAGE OF ANY PROPERTY BY THEFT,DISAPPEARANCE OR OTHERWISE, NOR FOR ANYINJURY OR DAMAGE TO PERSONS OR PROPERTYRESULTING FROM ANY CAUSE WHATSOEVER,INCLUDING WITHOUT LIMITATION FIRE, EXPLOSION,FLOOD ETC.). 9T LABS SHALL NOT BE RESPONSIBLEFOR ANY DAMAGES ARISING IN CONNECTION WITHCUSTOMER’S INABILITY TO USE THE PRODUCTS. 9TLABS’ LIABILITY FOR SUBPROCESSORS ACCORDINGTO Art. 101 CO (Swiss Code of Obligations) SHALL BEEXCLUDED. THESE LIMITATIONS APPLY COLLECTIVELYTO 9T LABS, ITS AFFILIATES, CONTRACTORS,SUB-PROCESSORS, AND SUPPLIERS. THE LIMITATIONOF LIABILITY SHALL NOT APPLY TO CASES OF INTENTOR GROSS NEGLIGENCE, CULPABLE DAMAGES TOLIFE OR DAMAGES CAUSED ACCORDING TO THESWISS PRODUCT LIABILITY ACT (PrHG). CUSTOMERSHALL BEAR THE RISK OF LOSS AND THERESPONSIBILITY TO INSURE, WITH RESPECT TO ALLOF THE FOREGOING.
9.1 If indemnification claims are asserted against a Party(“Indemnifying Party”) in connection with these GTCbased on an alleged violation of third party patentsor copyrights, it shall defend, at its own cost andexpense, and hold the other Party (“IndemnifiedParty”) harmless against all losses, damages andexpenses (including reasonable lawyer’s fees) finallyawarded against such third parties by a court oragreed to in a written settlement, to the extentarising from the claim, provided the IndemnifiedParty (i) has notified the Indemnifying Party in duecourse of the asserted claims; (ii) takes all reasonableand feasible actions to help defend against theclaims; (iii) supplies information requested by 9TLABS; (iv) allows 9T LABS to control, and reasonablycooperates in, the defense and settlement, includingmitigation efforts; and (iv) does not consent to entryof any judgement or settlement without theIndemnifying Parties’ prior written consent.
9.2 Notwithstanding the foregoing, 9T LABS shall haveno liability for any claim resulting from (i) CustomerContent, items not provided by 9T LABS and/or useof non-9T LABS products and services; (ii) anymodification of the Services or Software byCustomer or its Authorized Users; (iii) the use of theServices or Software by Customer or its AuthorizedUsers other than in accordance with theDocumentation and these GTC; or (iv) any violationof law or third party rights caused by CustomerContent, materials, designs, or specifications.
9.3 If the Customer is legally prohibited from using theServices or Software, 9T LABS can, at its owndiscretion, either (i) obtain a right of use in favor ofCustomer for the purposes of these GTC; (ii) amendaffected Services or Software appropriately andwithout unreasonable impact on Customer; (iii)exchange affected Services or Software with adifferent Services or Software that enables Customera use within the means of these GTC and withoutunreasonable impact on Customer; or (iv) reimburseCustomer for payments already made, starting fromthe time where the affected Services or Softwarecould no longer be used for reasons of infringement.
10.1 “Confidential Information” is all information of anynature whatsoever (including, but not limited to,business, employee, client, customer or any otherdata, trade secrets, business and/or financial recordsand operations, products, processes, methodologies,specifications, know-how, technical information,intellectual property rights, opportunities, marketingand sales activities, software specifications, costsand prices, wage rates, content of discussions andnegotiations), in whatever form, format or medium(including, but not limited to, written, oral,electronic, audio and video), that one Party(“Disclosing Party”) discloses to or otherwise comesinto possession of the other Party (“Receiving Party”)whether directly or indirectly as a result of theprovision of Services under these GTC. ConfidentialInformation does not need to be specificallyidentified as "confidential" or "secret" in order to beclassified as Confidential Information. Information isalso confidential if by its nature a reasonable personwould believe it to be confidential. ConfidentialInformation shall not include information that theReceiving Party can prove:
(i) was disclosed to a person who is subject to aprofessional duty of confidentiality, such as lawyersor accountants, to the extent that such disclosure isreasonable and necessary for the regular course ofbusiness or for the purpose of these GTC;
(ii) to have been in the public domain on the date ofdisclosure to a third party;
(iii) to have been lawfully and appropriately obtainedby it from a third party that has no obligation ofconfidentiality;
(iv) has come into the public domain otherwise andwithout any wrongdoing of the Receiving Party;
(v) was independently created by it withoutreference to the Confidential Information of theDisclosing Party; or
(vi) is required to be disclosed by mandatoryapplicable law.
10.2 In addition, 9T LABS may disclose Customer Contentto 9T LABS employees, contractors, subprocessorsand suppliers to the extent necessary to deliver theServices.
10.3 Both Parties, their Affiliates and, if applicable,Authorized Users shall treat any ConfidentialInformation in a strictly confidential manner andneither convey or disclose such Information to anythird party nor use it for purposes other than thepurposes of these GTC or the proper provision of theServices. This duty shall survive the termination ofthese GTC.
10.4 Both Parties shall procure that appropriatecontractually binding confidentiality undertakingshave been entered into between each party and itsemployees and, if applicable, its Authorized Usersthat are substantially equivalent to those set out inthese GTC. The confidentiality undertakings shallsurvive the termination of these GTC.
10.5 The Receiving Party is prohibited from using theConfidential Information outside the purpose ofthese GTC. It agrees to restrict disclosure of or accessto the Confidential Information to those employeesand, if applicable, third parties who need to knowthe Confidential Information for the purpose ofthese GTC.
10.6 The Confidential Information is disclosed “as is”. Norepresentations or warranties, express or implied,are made by either Party as to the accuracy,reliability, completeness or reasonableness of theConfidential Information.
10.7 Both Parties shall promptly delete permanently andsecurely any Confidential Information so that it is nolonger retrievable or deliver it to the Disclosing Partytogether with all the copies in any form and in anymedia at the Receiving Party’s power, possession orcontrol promptly upon termination or expiration ofthese GTC or upon request by the Disclosing Partyunless such deletion is prohibited by the applicablelaws.
11 Term and Termination
11.1 Customer subscribes to the Services for the durationof the Subscription Term after which the subscriptionshall renew automatically for the subsequentSubscription Term.
11.2 The Subscription may be terminated by either Partyfor convenience giving the other Party at least 120days’ written notice to the end of the respectiveSubscription Term. Customer is not entitled toterminate the subscription during the SubscriptionTerm. The right to terminate these GTC and thesubscription to the Services immediately accordingto the applicable statutory law shall not be affected.
11.3 9T LABS may suspend, revoke or limit Customer’s useof the Services if 9T LABS determines there is amaterial breach of Customer’s obligations, a securitybreach or violation of law. If the cause of thesuspension can reasonably be remedied, 9T LABS willprovide notice of the actions Customer must take toreinstate the Services. If Customer fails to take suchactions within a reasonable time, 9T LABS mayterminate the Services with immediate effect.
12.1 Assignment. Neither Party may assign these GTC orany rights resulting from these GTC, without theprior written consent of the other Party. Either Partymay however assign these GTC to a successor of allor substantially all of the business of such Partywhether by merger, asset sale or otherwise. TheseGTC shall be binding upon and inure to the benefit ofthe Parties’ successors. Assignment of 9T LABS’ rightsto receive payments or assignment by 9T LABS inconjunction with the sale of the portion of 9T LABS’business that includes the Services is not restricted.
12.2 Notices. 9T LABS shall send notices of amendmentsunder these GTC via Email to Customer. Theamendment shall be deemed accepted if Customercontinues to use the Services.
12.3 Severability. If individual clauses of these GTC areeither fully or partially unlawful, invalid, or for anyother reason unenforceable, the validity of theremaining clauses of these GTC shall not be affected.The Parties are obliged to cooperate in good faith toreplace such invalid clauses with clauses which theParties would have wanted at the time of conclusionof these GTC and which come as close to the invalidclause as possible.
12.4 Agreement. These GTC, including any applicableSpecial Terms and links (as amended or replaced,from time to time), shall be deemed the entireagreement between the Parties and shall supersedeany previous agreements or communications(whether oral or in writing) by the Parties concerningthe subject matter of these GTC.
12.5Amendment. 9TLABSreservestherighttoamendtheseGTCat itsowndiscretionatanytime. 9TLABSshall informCustomerappropriately inadvanceaboutanychangestotheseGTC.
12.6 Independence of the Parties. Nothing intheseGTCshall bedeemedanagency,partnershiporanyothercorporateorfiduciaryrelationshipbetweentheParties. BothPartiesare independentandneitherPartyshall beresponsibleoftheactsoromissionsoftheotherPartyor itspersonnel exceptasprovidedotherwise intheseGTC.
12.7 Marketing and Publicity.Customerherebygrantsto9TLabsa limited,revokable,non-exclusive,non-transferable,royalty-free license,touseCustomer’stradename, logosandtrademarks intheadvertising,marketingandpromotional materialsandactivitiesof9TLabs, includingon itswebsitesandsocial mediasites,and inpresentations,casestudies,tradeshowmaterials,andotheradvertising,marketingandpromotional mediaandcollateral,duringthetermofthisAgreement(includinganyextensionsandrenewalshereof) includingtobepubliclynamedasaclientof9TLabs.
13 APPLICABLE LAW AND JURISDICTION
13.1 This GTC shall in all respects be governedby,andconstruedand interpreted inaccordancewith,the laws of Switzerland excluding its conflict of laws rules, to the extent that mandatory laws of the country in which the consumer is resident do not override Swiss law. The provisions of the UN Sales Convention for the International Sale of Goods shall not apply.
13.2 The Parties submit to the exclusive jurisdiction of the competent courts in the City of Zurich, Switzerland, for all disputes arising out of, or in connection with, these GTC. However, nothing in this clause shall limit the Customer’s mandatory legal rights as a consumer to bring actions against 9T LABS or to require proceedings to take place in the country in which he has his residence.
13.3 Nothing in these GTC shall affect Customer’s mandatory rights as a consumer under the applicable law in the jurisdiction in which he is resident.
Effective: June 2020, version 1.1
These terms and conditions of purchase (hereinafter referred to as “Purchase Terms”) apply to all Customers as well as all their worldwide affiliates who buy products (“Product(s)”) offered online on the Website or in an individual purchase offering by 9T LABS.
Unless stated otherwise hereunder, any capitalized terms shall have the same meaning as in the GTC.
9T LABS and Customer hereinafter also referred to as “Party” or together as “Parties”
1.1 These Purchase Terms are applicable to Products only. They do not govern Services or Additional Services sold by 9T LABS. Services and Additional Services are exclusively governed by the GTC.
1.2 By ordering Products, Customer consents to these Purchase Terms. The Customer is solely responsible for ensuring that all information provided during the purchase process is correct and complete.
1.3 9T Labs reserves the right to change these Purchase Terms unilaterally at any time. Customer will be notified of any changes before or during the next purchase of Products.
2 CONCLUSION OF CONTRACT
2.1 The purchase contract between Customer and 9T LABS is concluded by Customer's order and 9T LABS’ acceptance of the order. By placing an order, Customer expressly submits a binding request to conclude a purchase contract.
2.2 When the Customer places an order via our Website, Customer receives an automatically generated information of receipt of the order by email. This confirmation does not constitute acceptance of the offer by 9T LABS. 9T LABS reserves the right to reject the application without giving reasons. Once the order has been received, Customer will receive aconfirmation email within 10 days. The legally binding purchase agreement is only concluded when 9T LABS ships the goods.
3 PRICES AND PAYMENT CONDITIONS
3.1 All prices and charges must be paid by Customer in advance. Unless specified otherwise, all prices are in Swiss Francs (CHF) and are exclusive of any taxes and VAT. Any additional costs, if applicable (e.g. shipping costs, advance recycling fee etc.) will be charged separately during the online purchase checkout process.
3.2 9T LABS will charge the valid prices displayed on the Website at the time of the order or in an individual purchase offering; obvious errors, misprints and suchlike are expressly reserved and are not binding.
3.3 9T LABS reserve the right to change the prices on the Website at any time without giving prior notice. Such Changes do not affect orders, which were already placed. Notwithstanding the foregoing, in cases of changes of the applicable VAT rate or any other statutory charges we reserve the right to adjust the rate of VAT and/or the charge unless Customer has already paid for his order in full before such a change.
3.4 Products are not dispatched until payment has been received in full by 9T LABS.
4.1 By ordering Products Customer acknowledges and accepts that the Products may require certain additional equipment and/or software in order to operate. Any of these additional requirements are not part of, and will not automatically be delivered together with, the Products.
4.2 The images of the Products on the Website are for information and illustrative purposes only. Although we have made every effort to provide correct and complete information, including accurate colors or dimensions of the Products, we cannot guarantee that a delivered Product accurately reflects the information and/or color displayed on the Website. Delivered Products may vary slightly from those specifications and images.
5 AVAILABILITY, PLACE AND TIME OF DELIVERY
5.1 Products are available for as long as it is displayed on our Website and/or while stock lasts.
5.2 Unless agreed otherwise, delivery will be made to the address specified by Customer during the ordering process. Delivery will be made within 10 business days after cleared payment has been received by 9T LABS.
5.3 We are committed to providing up-to-date and precise information on availability and delivery dates on the Website. However, production and delivery shortages in particular may cause delivery delays for 9T LABS. All information on availability and delivery dates are estimates only. They are non-binding and may be subject to change.
5.4 If the delivery of the Products within a specific period is prevented due to unforeseen circumstances or any reasons outside of the control of 9T LABS, 9T LABS is entitled to withdraw from the purchase contract. 9T LABS will inform Customer of such circumstances. Any damages and claims arising out of such circumstances are explicitly excluded.
6 CUSTOMER’S OBLIGATION TO INSPECT
6.1 Customer is obliged to inspect the delivered Products for their correctness and completeness, for potential transport damage and for defects immediately after receipt of the delivery. If the delivery is carried out by a service partner, Customer must state the defect on the delivery note.
6.2 Customer shall inform 9T LABS of any defects, or false or incomplete deliveries, immediately within 5 business days after receipt of the delivery at the latest, otherwise the delivery is considered approved and accepted.
6.3 In cases of non-acceptance of the Products, Customer must retain the Products in the condition they were delivered to it and is not permitted to use them. Customer must follow the instructions for the returns process as described on our Website or as otherwise provided by 9T Labs from time to time.
7 RIGHT OF RETURN AND REFUND
7.1 Customers have the right to cancel their contract within 7 days after receipt of the Products. In order to exercise that right, Customer shall notify 9T LABS within that cancellation period by sending an email to firstname.lastname@example.org. If Customer remains fully responsible for returning the Products to 9T LABS to the address stated on the delivery note. The Products must be in their original condition and packaging and the return note must be attached to the Products.
7.2 9T LABS will refund the price paid within 14 days of receipt of the cancelled Products excluding any charges paid for delivery of the Products. 9T LABS reserves the right to reduce the refund to reflect any reduction in the value of the Products, if this has been caused by Customer’s handling which was not permitted or in cases of abuse or misuse of the Products.
8 REPRESENTATIONS AND WARRANTIES
8.1 All Products must be used in accordance with the Documentation. Damages resulting from use other than in accordance with the Documentation damages do not constitute defects according to the warranty obligations herein and 9T LABS excludes any and all liability or warranty for such damages.
8.2 Unless stated otherwise hereunder, 9T LABS warrants, during a period of three (3) months (24 month for consumers according to clause 7) from the delivery date that the ordered Products are, at the time of delivery, free from defects in material and workmanship and functional in all material respects in accordance with the Documentation. For the avoidance of doubt, in cases where 9T LABS has to provide the warranty according to clause
8.3, the original warranty period, starting from the date of the delivery of the Products, shall apply to the repaired or replaced Products.
8.3 9T Labs shall provide the warranty at its sole option and discretion by either (a) repairing the Products free of charge; (b) replacing the Products; or (c) giving a partial or full refund.
8.4 This warranty shall not apply in cases where a Product (a) was changed or repaired by Customer not in accordance with the Documentation; (b) was damaged due to improper operation or storage by Customer; or (c) was damaged outside of 9T LABS control.
8.5 THIS IS THE SOLE WARRANTY FOR PRODUCTS GIVEN TO CUSTOMER BY 9T LABS. EXCEPT TO THE EXTENT EXPRESSLY STATED HEREUNDER, PROHIBITED BY THE APPLICABLE LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, 9T LABS AND ITS AFFILIATES (I) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCTS; AND (II) EXCLUDE ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
9T LABS’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THESE PURCHASE TERMS SHALL BE LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAWS, TO THE FEES ACTUALLY PAID FOR THE PRODUCT(S) THROUGH WHICH THE CAUSE OF LIABILITY AROSE. 9T LABS SHALL NOT BE HELD LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFIT, REVENUE, BUSINESS, VALUE, CUSTOMERS, OPPORTUNITIES, ANTICIPATED SAVINGS, GOODWILL, REPUTATION, USE OR DATA). 9T LABS SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES ARISING IN CONNECTION WITH CUSTOMER’S INABILITY TO USE THE PRODUCTS. 9T LABS’ LIABILITY FOR SUBPROCESSORS ACCORDING TO Art. 101 CO (Swiss Code of Obligations) SHALL BE EXCLUDED. THESE LIMITATIONS APPLY COLLECTIVELY TO 9T LABS, ITS AFFILIATES, CONTRACTORS, SUB-PROCESSORS, AND SUPPLIERS. THE LIMITATION OF LIABILITY SHALL NOT APPLY TO CASES OF INTENT OR GROSS NEGLIGENCE, CULPABLE DAMAGES TO LIFE OR DAMAGES CAUSED ACCORDING TO THE SWISS PRODUCT LIABILITY ACT (PrHG).
10 DATA PROTECTION
11.1 Severability. If individual clauses of these Purchase Terms are either fully or partially unlawful, invalid, or for any other reason unenforceable, the validity of the remaining clauses of these Purchase Terms shall not be affected.
11.2 Amendment. 9T LABS reserves the right to amend these Purchase Terms at its own discretion at any time.
12 APPLICABLE LAW AND JURISDICTION
12.1 These Purchase Terms shall in all respects be governed by, and construed and interpreted in accordance with, the laws of Switzerland excluding its conflict of laws rules, to the extent that mandatory laws of the country in which the consumer is resident do not override Swiss law. The provisions of the UN Sales Convention for the International Sale of Goods shall not apply.
12.2 The Parties submit to the exclusive jurisdiction of the competent courts in the City of Zurich, Switzerland, for all disputes arising out of, or in connection with, these Purchase Terms. However, nothing in this clause shall limit the Customer’s mandatory legal rights as a consumer to bring actions against us or to require proceedings to take place in the country in which he has his residence
Effective: December 2020, version 1.1
These terms and conditions of purchase (hereinafterreferred to as “Contract”) apply to all Customers as well asall their worldwide affiliates who request ConsultingServices (“Services)”) offered online on the Website or inan individual purchase offering by 9T Labs.
Unless stated otherwise hereunder, any capitalized termsshall have the same meaning as in the GTC.
9T Labs and Customer hereinafter also referred to as“Party” or together as “Parties”
1.1 “Background Information” means all technology,Know-How, Intellectual Property Rights, that each ofthe Parties or their Affiliates owns or has in itspossession when entering into the Contract, orcreates or develops otherwise than in the course ofcarrying out the Services.
1.2 “Confidential Information” is all information of anynature whatsoever (including, but not limited to,business, employee, client, customer or any otherdata, trade secrets, business and/or financialrecords and operations, products, processes,methodologies, specifications, know-how, technicalinformation, intellectual property rights,opportunities, marketing and sales activities,software specifications, costs and prices, wagerates, content of discussions and negotiations), inwhatever form, format or medium (including, butnot limited to, written, oral, electronic, audio andvideo), that one Party (“Disclosing Party”) disclosesto or otherwise comes into possession of the otherParty (“Receiving Party”) whether directly orindirectly as a result of the provision of ConsultingServices under this Contract.
1.3 “Deliverables” shall mean the results arising out of,or created during the performance of ConsultingServices by 9T Labs and as described in Annex 1.
1.4 “Intellectual Property (IP)” shall mean and includes,to the extent recognized under applicable law, rightsin Hardware and Software, including in particularsource code and all related documentation, patents,patent applications, copyrights, trademarks, servicemarks, trade names, internet domain names, emailaddress names, trade secrets, moral rights,database rights, customer lists, design rights,know-how, techniques, processes, methods,inventions (whether patentable or not),conceptions, discoveries, improvements, chipdesigns, mask works, proprietary information,technical information, specifications, and all otherrights of authorship and intellectual and industrialproperty rights, and other equivalent or similarrights which may subsist anywhere in the world,whether registered or unregistered, including anyform of application for any of the foregoing.
1.5 “Know-How” means non-patentable (orunpatented) technical information (including,without limitation, information relating toinventions, discoveries, concepts, methodologies,models, research, development and testingprocedures, the results of experiments, tests andtrials, operational experience, manufacturingprocesses, techniques and specifications, qualitycontrol data, analyses, reports and submissions)that is not in the public domain.
2 GENERAL OBLIGATIONS OF 9T LABS
2.1 9T Labs shall perform the Consulting Services, aslisted in Annex 1, in accordance with this Contractusing reasonable skill, care and diligence and in aprofessional manner and in accordance with anyrelevant industry standards.
3 PRICES AND PAYMENT CONDITIONS
3.1 Unless specified otherwise, all prices are in SwissFrancs (CHF) and are exclusive of any taxes and VAT.Any additional costs, if applicable (e.g. shippingcosts, advance recycling fee etc.) will be chargedseparately.
3.2 9T Labs shall invoice Customer for the full amountdue, or as specified in Annex 1. Customer agrees topay 9T Labs for the Services performed within 30days of the date of invoice.
3.3 In the event of a disputed or contested invoice, onlythat portion so contested may be withheld frompayment, and the undisputed portion will be paid.
4 PROPRIETARY RIGHTS TO BACKGROUND INFORMATION
4.1 All Background Information remains the property ofthe Party introducing it.
4.2 9T Labs is hereby granted a non-exclusive,royalty-free and worldwide beneficial right to useBackground Information disclosed by Customer forthe purpose of the performance of and control ofthe Services and/or the Deliverables.
4.3 Customer is granted a non-exclusive, irrevocable,royalty-free, and worldwide beneficial right to useof 9T Labs’ Background Information insofar as it is necessary to enable Customer to use theDeliverables.
4.4 The Intellectual Property rights in the Deliverablesshall be the property of Customer upon fullpayment of the fees set out in Annex 1.Notwithstanding the foregoing, all technicalinformation (including, without limitation,information relating to inventions, discoveries,concepts, methodologies, models, research,development and testing procedures, the resultsof experiments, tests and trials, operationalexperience, manufacturing processes, techniquesand specifications, quality control data, analyses,reports and submissions) used or derived by 9TLabs to create the Deliverables shall reside in 9TLabs.
5 CONFIDENTIALITY OBLIGATIONS
5.1 Confidential Information does not need to bespecifically identified as "confidential" or "secret"in order to be classified as ConfidentialInformation. Information is also confidential if byits nature a reasonable person would believe it tobe confidential. Confidential Information shall notinclude information that the Receiving Party canprove:
(i) was disclosed to a person who is subject to aprofessional duty of confidentiality, such aslawyers or accountants, to the extent that suchdisclosure is reasonable and necessary for theregular course of business or for the purpose ofthis Contract;
(ii) to have been in the public domain on the dateof disclosure to a third party;(iii) to have been lawfully and appropriatelyobtained by it from a third party that has noobligation of confidentiality;
(iv) has come into the public domain otherwiseand without any wrongdoing of the ReceivingParty;
(v) was independently created by it withoutreference to the Confidential Information of theDisclosing Party; or
(vi) is required to be disclosed by mandatoryapplicable law.
5.2 In addition, 9T Labs may disclose CustomerConfidential Information to 9T Labs employees,contractors, subprocessors and suppliers to theextent necessary to deliver the ConsultingServices.
5.3 Both Parties shall treat any ConfidentialInformation in a strictly confidential manner andneither convey or disclose such Information to anythird party nor use it for purposes other than thepurposes of this Contract or the proper provisionof the Consulting Services. This duty shall survivethe termination of this Contract.
5.4 Both Parties shall procure that appropriatecontractually binding confidentiality undertakingshave been entered into between each party andits employees and, if applicable, its subcontractorsthat are substantially equivalent to those set outin this Contract. The confidentiality undertakingsshall survive the termination of this Contract.
5.5 Both Parties shall promptly delete permanentlyand securely any Confidential Information so thatit is no longer retrievable or deliver it to theDisclosing Party together with all the copies in anyform and in any media at the Receiving Party’spower, possession or control promptly upontermination or expiration of these GTC or uponrequest by the Disclosing Party unless suchdeletion is prohibited by the applicable laws, orfor archival purposes.
6 REPRESENTATIONS AND WARRANTIES
6.1 The Consulting Services shall be performed usingreasonable skill, care and diligence and in aprofessional manner and in accordance with anyrelevant industry standards. Notwithstanding theforegoing, Customer agrees that 9T Labs cannot andwill not offer any warranty for any prototypes,samples or products as a result of a feasibility study.
6.2 Customer further acknowledges that the use of anyprototype or sample could result in damage of itsequipment/parts/material/process including butnot limited to, production down time, equipmentstoppages, damage, discoloration, corrosion,process system failure, etc. Customer agrees toindemnify, defend, and hold 9T Labs harmless for allliabilities incurred or alleged as a result of theDeliverables, or arising out of the use of theDeliverables.
6.3 THIS IS THE SOLE WARRANTY FOR DELIVERABLESGIVEN TO CUSTOMER BY 9T LABS. EXCEPT TO THEEXTENT EXPRESSLY STATED HEREUNDER,PROHIBITED BY THE APPLICABLE LAW, OR TO THEEXTENT ANY STATUTORY RIGHTS APPLY THATCANNOT BE EXCLUDED, LIMITED OR WAIVED, 9TLABS AND ITS AFFILIATES (I) MAKE NOREPRESENTATIONS OR WARRANTIES OF ANY KIND,WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE PRODUCTS; AND (II)EXCLUDE ALL WARRANTIES, INCLUDING ANYIMPLIED WARRANTIES OF MERCHANTABILITY,QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.4 In the case of feasibility studies, Customer furtheracknowledges that actual costs may varydepending on material and labour costs; design,size and specification of the proposed prototypes;market forces and other factors not known at thetime of entering this Contract. While 9T Labsattempts to provide conservative estimates andinclude all reasonably-foreseeable costs associatedwith the development, 9T Labs does not andcannot accept any responsibility for variations to orexclusions from the feasibility that may affect theeconomic viability of Customer’s projects.Customer shall make their own enquiries and dotheir own research to satisfy themselves as to theaccuracy of these feasibility studies carried out by9T Labs.
7.1 9T LABS’S AND ITS AFFILIATES’ TOTAL AGGREGATELIABILITY FOR DIRECT DAMAGES UNDER THISCONTRACT SHALL BE LIMITED, TO THE MAXIMUMEXTENT PERMITTED BY THE APPLICABLE LAWS, TOTHE FEES ACTUALLY PAID FOR THE SERVICESTHROUGH WHICH THE CAUSE OF LIABILITY AROSE.9T LABS SHALL NOT BE HELD LIABLE FOR ANYINDIRECT, EXEMPLARY, SPECIAL ORCONSEQUENTIAL DAMAGES (INCLUDING BUT NOTLIMITED TO LOST PROFIT, REVENUE, BUSINESS,VALUE, CUSTOMERS, OPPORTUNITIES,ANTICIPATED SAVINGS, GOODWILL, REPUTATION,USE OR DATA). 9T LABS SHALL NOT BERESPONSIBLE FOR ANY DAMAGES ARISING INCONNECTION WITH CUSTOMER’S INABILITY TO USETHE PRODUCTS. 9T LABS’ LIABILITY FORSUBPROCESSORS ACCORDING TO Art. 101 CO(Swiss Code of Obligations) SHALL BE EXCLUDED.THESE LIMITATIONS APPLY COLLECTIVELY TO 9TLABS, ITS AFFILIATES, CONTRACTORS,SUB-PROCESSORS, AND SUPPLIERS. THELIMITATION OF LIABILITY SHALL NOT APPLY TOCASES OF INTENT OR GROSS NEGLIGENCE,CULPABLE DAMAGES TO LIFE OR DAMAGESCAUSED ACCORDING TO THE SWISS PRODUCTLIABILITY ACT (PrHG).
8 DATA PROTECTION
9 FORCE MAJEURE
9.1 A Party shall not be considered in breach of theContract to the extent that it was unable to fulfillits contractual obligations due to Force Majeure.Each Party shall cover its own costs resulting fromForce Majeure.
9.2 The Party invoking Force Majeure shall notify theother Party thereof without undue delay. Suchnotice shall also include the cause of the delayand the presumed duration thereof.
10.1 Severability. If individual clauses of this Contractare either fully or partially unlawful, invalid, or forany other reason unenforceable, the validity ofthe remaining clauses of this Contract shall not beaffected.
10.2 Amendment. 9T LABS reserves the right to amendthis Contract at its own discretion at any time. Art.16.
10.3 Notifications. All notifications, claims and othercommunications shall be submitted in writing byemail or airmail to the relevant PartyRepresentative as identified in the Form ofContract. All correspondence shall be identifiedwith the Contract
11 APPLICABLE LAW AND JURISDICTION
11.1 This Contract shall in all respects be governed by,and construed and interpreted in accordance with,the laws of Switzerland excluding its conflict oflaws rules, to the extent that mandatory laws ofthe country in which the consumer is resident donot override Swiss law. The provisions of the UNSales Convention for the International Sale ofGoods shall not apply.
11.2 The Parties submit to the exclusive jurisdiction ofthe competent courts in the City of Zurich,Switzerland, for all disputes arising out of, or inconnection with, this Contract. However, nothingin this clause shall limit the Customer’s mandatorylegal rights as a consumer to bring actions againstus or to require proceedings to take place in thecountry in which he has his residence.