GENERAL TERMS AND CONDITIONS of Memberly AG

1. CONTRACTUAL PARTIES, SCOPE:

1.1. These General Terms and Conditions (hereinafter "GTC") regulate - together with the written order - the contractual relationship between Memberly AG (hereinafter "Memberly") and the natural or legal person who commissions Memberly to provide the services that are the subject of this contract (hereinafter the "Customer").

1.2. The Customer declares that he is an entrepreneur within the meaning of the Swiss Code of Obligations (OR); Memberly provides the services that are the subject of this contract exclusively to entrepreneurs.

1.3. The contractual relationship between Memberly and the Customer is based exclusively on these GTC and any written individual agreements, in particular the written order (including its appendices) (hereinafter the "Contractual Relationship"); any oral ancillary agreements are not valid.

1.4. Any deviating terms and conditions of the customer shall only apply if Memberly has expressly agreed to these terms and conditions in writing in advance.

2. AVAILABILITY, RESERVATION OF THE RIGHT TO CHANGE:

2.1. The current version of the General Terms and Conditions is available on the Memberly website. Memberly will hand over or send the General Terms and Conditions to the customer when the contract is concluded and when changes are made.

2.2. Memberly is entitled to change these General Terms and Conditions at any time in order to adapt them to changed technical or economic conditions. Memberly will inform the customer of all changes to the General Terms and Conditions and the time when they come into effect by email or via the customer's user account. The changed General Terms and Conditions will take effect if the customer does not object to the change within 4 weeks of receiving notification of the change by email to support@memberly.ch at the latest. In the event of an objection, Memberly is entitled to terminate the contractual relationship with immediate effect in accordance with point 12.3. Memberly will specifically draw the customer's attention to the importance of their behavior when notifying them of a change.

3. SUBJECT OF THE CONTRACT:

3.1. Memberly develops digital solutions for customer loyalty for its customers. These digital solutions can be implemented in the form of a smartphone app or web-based applications and can also include central, web-based customer and campaign management (Customer Loyalty Management, CLM) (hereinafter the "software solution").

3.2. The software solution is initially individually configured or developed for each customer based on existing server software according to their specifications and is subsequently madeavailable for the duration of the contract as a service within the framework of a cloud application (SaaS).

4. CONCLUSION OF CONTRACT:

The contractual relationship between the customer and Memberly comes into being at the time of the conclusion of a written individual agreement on the services to be provided and the commercial framework conditions (hereinafter the "order"). Notwithstanding this, Memberly is entitled to an appropriate and industry-standard remuneration for any services before the order is signed, provided that the scope of these services significantly exceeds the scope of the otherwise usual expenses in initiating a business relationship.

5. SOFTWARE DEVELOPMENT, OBLIGATION TO COOPERATE, ACCEPTANCE:

5.1. Based on the customer's information and materials, Memberly creates a written concept that at least broadly describes the structure, structure and functionality of the software solution (functions, content, graphic features, interaction options for the user, interfaces with social media, etc.) (hereinafter the "software description").

5.2. Memberly submits the developed software description to the customer for review and approval. The parties will jointly revise and adapt the software description if necessary. The customer must communicate his wishes and ideas regarding the design of the software solution in a timely and clear manner.

5.3. The software solution will subsequently be programmed and implemented by Memberly in accordance with the specifications in the software description. The customer will promote and support the development and implementation of the software solution at all times through active and appropriate cooperation to the best of his ability. In particular, the customer is aware that the successful and timely completion of the software solution depends to a large extent on the timely provision of all necessary information and resources - including human resources. In this regard, Memberly relies on the accuracy and completeness of the information and materials provided by the customer, in particular those for the development of the software description. The customer must carefully check the work results submitted to him for approval and immediately report any defects. The customer's fulfillment of these cooperation obligations is free of charge.

5.4. The functionality of the software solution is tested before go-live as part of the (technical) acceptance by the customer. Unless a separate acceptance procedure (such as a test procedure in a test environment) has been agreed between the parties, the successful acceptance of the software solution by the customer is assumed at the latest at the time when Memberly notifies the completion of the development work in writing and the software solution essentially meets the requirements and specifications contained in the software description.

5.5. After acceptance, Memberly uploads the software solution to a sales platform agreed in advance with the customer (Apple Store, Google Playstore) or makes it available to the customer in a test environment (go-live).

5.6. Unless expressly agreed otherwise in the order, no specific completion date has been agreed. However, Memberly will endeavor - always depending on the cooperation of the customer - to complete the software solution within a reasonable period of time.

6. SOFTWARE TRANSFER (SAAS):

6.1. Memberly provides the customer with the software solution and the storage space required for the contractual use of the software solution (data hosting) via the Internet (cloud application) during the term of the contract in accordance with these General Terms and Conditions and the agreements in the order.

6.2. The software solution is generally supported by the end devices commonly used at the time of acceptance; however, Memberly does not guarantee that the software solution can be operated on all end devices available on the market.

6.3. Memberly reserves the right to continuously develop the software solution and the server software or to optimize individual software features. This may make it necessary to install updates or upgrades from time to time.

6.4. Memberly is entitled to temporarily interrupt or restrict the provision of services and to stop the contractually agreed services in whole or in part if and to the extent that this is necessary to remedy or avoid disruptions, to ward off attacks on the network infrastructure (bug fixes) or to carry out maintenance work that is essential to operations. Memberly will inform the customer in advance of any maintenance work that will take longer.

6.5. The customer acknowledges that the data centers required for the use of the software solution are not operated by Memberly and are mainly located abroad.

7. USER ACCOUNT:

7.1. The customer receives a personal user account (dashboard access) through which the software solution can be accessed. The login data for this user account consists of the customer's email address and a password of their choice. These login data may not be passed on to third parties by the customer and must be protected from access by unauthorized third parties.

7.2. The customer undertakes to provide all information requested during the registration of the user account correctly and completely. Memberly is entitled - but not obliged - to request proof of the accuracy of the data provided. The customer undertakes to update his user account immediately whenever his data changes.

7.3. The customer is liable to Memberly for all damages and disadvantages incurred by Memberly due to unauthorized access to the user account by a third party or due to incorrect information in the user account. The customer undertakes to indemnify Memberly in this regard.

8. COMPENSATION, FEES:

8.1. The customer owes the one-off compensation and recurring fees specified in the order for the development and subsequent provision of the software solution.

8.2. Unless otherwise agreed, one-off compensation - such as the cost of developing the software solution - is due for payment upon conclusion of the contract. Recurring fees - such as for the provision of the software solution for ongoing use - are due annually in advance.

8.3. In the month in which the maximum number of registered users exceeds the next user limit, the monthly price of the next higher user limit automatically applies.

8.4. Unless payment by direct debit has been agreed, invoices from Memberly are due for payment within 10 days of receipt.

8.5. If the customer defaults on payment of Memberly's claims, he owes default interest at the statutory rate in accordance with Art. 104 of the Swiss Code of Obligations (OR). In addition, the customer must reimburse Memberly for all appropriate and reasonable costs incurred by debt collection agencies and lawyers.

8.6. For additional expenses resulting from a breach of the customer's duty to cooperate - for example by providing incorrect or incomplete information - or from subsequent requests for changes and additions by the customer, Memberly is entitled to invoice these expenses on the basis of an appropriate and industry-standard hourly rate. Requests for changes and additions are considered subsequent in particular if they were only communicated by the customer after the software description was released.

8.7. Memberly is entitled to unilaterally adjust the prices for the software and will inform the customer of this in good time, but at least 1 month in advance. In the case of an open-ended contract, the price change will take effect at the beginning of the next billing period, and in the case of a fixed-term contract, at the beginning of the next contract year.

8.8. Due to ongoing product development and improvement, Memberly is entitled to implement an annual price increase in the form of an innovation fee on the monthly fees of up to 4.5%.

9. OTHER CUSTOMER OBLIGATIONS:

9.1. The customer may only use the software solution provided to the extent agreed in the contract.

9.2. The customer is obliged to comply with all applicable legal provisions when using the software solution. In particular, he must observe the provisions of criminal law, copyright, trademark and competition law, the protection of minors and the personal rights of others.

9.3. The customer undertakes not to enter any data into the software solution or the server platform that contains a virus or other malware (malicious software) and not to take anyactions that have a negative impact on the availability of the server platform for other customers.

10. SUPPORT:

10.1. An error in or a malfunction of the software solution exists if the functions described in the software description are not fulfilled (hereinafter the "malfunction").

10.2. Unless a separate agreement has been made between the parties, Memberly will respond to and process support requests from the customer in connection with a fault within a reasonable period of time.

10.3. If Memberly is called upon to resolve a fault for which Memberly is not responsible due to a support request, Memberly is entitled to invoice the customer separately for the costs of resolving the fault at standard industry prices.

11. FORCE MAJEURE:

If an event of force majeure results in Memberly not being able to fulfill its obligations, not being able to do so fully, not being able to do so in accordance with the contract or not being able to do so on time, Memberly is released from fulfilling its contractual obligations for the duration of the event of force majeure. "Force majeure" is an event that was not foreseeable by either party using the utmost care that could reasonably be expected, in particular events such as war, insurrection, riots, embargo, epidemics, pandemics, fire, floods, severe weather, interruption of power supply, industrial action and official orders as a result of the aforementioned events.

12. TERM, TERMINATION:

12.1. Unless the parties have agreed otherwise, the contractual relationship with regard to the provision of software (SaaS) (hereinafter the "continuing obligation") is concluded for an indefinite period.

12.2. The continuing obligation can generally be terminated in writing by either party at the end of each calendar month with one month's notice and without giving reasons. However, the parties waive their right of ordinary termination for the duration of the minimum contract term specified in the order. The minimum contract term begins with the first billing of the monthly fees.

12.3. The right of the parties to terminate the continuing obligation with immediate effect for good cause, i.e. to terminate it extraordinarily, remains unaffected. Important reasons that entitle Memberly to immediate termination of the contract are in particular, but not exclusively, if the customer: (i) defaults on his payment obligations under this contractual relationship and does not fully settle the outstanding arrears within a grace period of 2 weeks despite a reminder from Memberly; (ii) exceeds the rights of use granted to him for the software solution - in particular if the customer endangers the security and integrity of the server platform by using the software solution - and does not immediately stop this behavior despite a reminder from Memberly; (iii) in the course of using the software solution, culpably violates industrial property rights, copyrights or other intellectual property rights of third parties or other legal provisions - including the provisions of data protection law; (iv) knowingly made false statements when opening his user account; (v) objected to the updating of these General Terms and Conditions in accordance with point 2.2; or (vi) otherwise culpably violates an essential obligation under the contractual relationship.

12.4. With the exception of point 12.3(v), in the aforementioned cases Memberly is also entitled to temporarily block the customer's user account without prior notice. At the same time as blocking the account, Memberly will request the customer to remedy the situation that gave rise to the block within a reasonable period of time. The customer is also obliged to pay the contractual fees during the blocking period.

12.5. The customer acknowledges and agrees that upon termination of the contractual relationship, Memberly is entitled to delete the user account and thus the data stored and kept available in fulfillment of the contract. It is the customer's responsibility to back up his data in good time before termination of the contractual relationship.

13. WARRANTY, LIABILITY:

13.1. The customer is aware that software products can never be completely free of defects. Memberly therefore only guarantees that the software solution essentially corresponds to the expressly agreed software description. No further warranty obligation is assumed; not even for properties usually assumed for software products.

13.2. If the software solution is defective, the customer has the right to demand that Memberly remedy the defects. If Memberly does not succeed in remedying the defect within a reasonable period of time, the customer is entitled to claim a price reduction. The assertion of other statutory warranty remedies - in particular rescission - is expressly excluded.

13.3. The customer is obliged to complain about defects in writing immediately after they are discovered, and the defect must be described as precisely as possible. The customer's warranty claims expire 12 months after acceptance of the software solution.

13.4. Memberly is only liable to the customer for damages caused intentionally or through gross negligence by Memberly or its assistants. This does not apply to personal injuries and liability under the Product Liability Act. To the extent permitted by law, liability for lost profits, consequential damages - in particular for damages resulting from any loss of data - as well as other indirect or indirect damages and purely financial losses is excluded. Liability for assistants is also excluded to the extent permitted by law. Memberly is also not liable for a specific business success or any commercial expectations of the customer associated with the use of the software solution.

13.5. The warranty remedies, liability and exemptions provided for in this point 13 and in point 14 are excluded if a defect or violation of third-party rights was caused by the customer's behavior that went beyond the contractual use or by the customer's unauthorized modification or editing of the software solution.

13.6. If Memberly also provides templates or samples of documents for further use to the users of the software solution (end users) as part of the contractual relationship, these are merely working aids that can in no way replace a legal review of the factual and legal situation. It is expressly recommended that you seek advice from your own legal counsel. Memberly accepts no liability for the accuracy, completeness or legality of these working aids and the provisions contained therein.

14. INDEMNITY STATEMENTS:

14.1. Memberly guarantees that the content it creates is free of third-party rights or that it can grant the customer the rights to it required to use the software solution. Memberly must fully indemnify the customer from all claims made by third parties due to an infringement of their rights by this content. This includes the costs of extrajudicial and judicial prosecution and legal defense.

14.2. The customer guarantees that he has all rights (e.g. copyright, ancillary copyright, trademark, personal rights) to the information, content and materials provided by him that are required for use within the scope of the app in question. The customer must fully indemnify Memberly from all claims made by third parties due to an infringement of their rights by this information, content and materials. This includes the costs of extrajudicial and judicial prosecution and legal defense.

15. DATA SECURITY, DATA PROTECTION:

15.1. Memberly will take suitable technical and organizational precautions to avoid data loss and to prevent unauthorized access to the customer's data by third parties. In particular, Memberly regularly creates a backup of the data that the customer enters into the software solution and saves there. This backup is carried out on servers other than those on which the software solution is operated and is secured multiple times redundantly. This protection relates to system failures.

15.2. Notwithstanding this, the customer is obliged to ensure that his data is regularly backed up - for example by regular exports. Memberly is not liable for the loss or damage of data. The customer has no right to demand that Memberly restore lost or damaged data; any recovery measures are at Memberly's sole discretion.

15.3. If Memberly processes the customer's personal data, the provisions of the separate data protection declaration, which is an appendix to the order and is also available at www.memberly.ch/datenschutz, apply.

16. CONFIDENTIALITY OBLIGATION, REFERENCE, DATA ANALYSIS:

16.1. The customer undertakes to keep all data, programs, documents and information provided by Memberly as part of the contract fulfillment secret beyond the duration of the contractual relationship and not to make them accessible to third parties. Third parties who are granted access to the data, programs, documents and information mentioned with the consent of Memberly must be obliged to maintain confidentiality in writing.

16.2. The customer hereby declares his express consent for Memberly to use the customer as a reference in its corporate communications with logo, name and case studies (website, presentations, etc.).

16.3. Furthermore, the customer hereby grants Memberly the right to use the user data - exclusively in anonymized form - for its own purposes, such as for the purposes of product improvement or development, research or big data analysis or to use it for other purposes; this right of use is granted to Memberly free of charge.

17. SET-OFF, ASSIGNMENT:

17.1. The customer is only entitled to set-off against claims of Memberly arising from the contractual relationship if the customer's claims have either been established by a court or are undisputed.

17.2. Memberly is entitled to transfer rights and obligations arising from or in connection with the contractual relationship in whole or in part to affiliated companies or third parties with a debt-discharging effect. Any transfer of rights and obligations arising from or in connection with the contractual relationship by the customer requires the prior written consent of Memberly.

18. CONTRACT LANGUAGE, APPLICABLE LAW, JURISDICTION:

18.1. The contract language is German. Versions of these terms and conditions in other languages are for guidance purposes only. Only the German version is authoritative.

18.2. The contractual relationship is subject exclusively to Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods and international reference standards, insofar as these refer to law other than Swiss law.

18.3. The place of performance is the registered office of Memberly. For all disputes arising from and in connection with the contractual relationship - including the question of its effective conclusion and termination - the relevant court at the registered office of Memberly has exclusive jurisdiction.

19. NOTIFICATIONS:

All notifications in connection with this contractual relationship must be made in writing by the respective party or its authorized representative and sent to the recipient by post oremail. The declarations must be sent to the contact details provided in the order or to a contact details updated by a party at a later date.

20. FORM REQUIREMENTS:

Changes or additions to the contractual relationship must be made in writing; this also applies to the cancellation of this written form requirement.

21. SALVATION CLAUSE:

If one or more provisions of these General Terms and Conditions are or become invalid or unenforceable, the remaining provisions remain valid and enforceable. Invalid or unenforceable provisions shall be replaced by mutual agreement by such valid and enforceable provisions that come as close as possible to the purpose intended by the parties with the invalid or unenforceable provision. The same applies accordingly to any gaps in the contract.