Terms & Policies

These terms of service (the ToS) govern the use of https://www.divio.com (the Website) and all the Services (as defined below) offered by the Divio group. 

The ToS form together with the terms of any subscription plan or equivalent plan purchased from the Website (the Subscription Plan) or any signed statement of work (the Statement of Work) referencing these ToS, and any schedule thereto (a Schedule), as well as any master agreement (the Master Agreement) and/or service level agreement (the SLA) a legal agreement (the Agreement) between Divio AG (CHE-102.142.700), 8005 Zürich, Switzerland (the Provider) and any client of the Provider designated in the Subscription Plan or the Statement of Work (the Client, and together with the Provider, the Parties).

1. Definitions

Capitalised terms used in these ToS shall have the meaning ascribed to them in these ToS.

2. Scope and acceptance

2.1. In general

These ToS govern the Client’s rights and obligations with respect to the use of the Website and to the provision by the Provider and the access and use by the Client of the solutions specified in the Subscription Plan subscribed by the Client or the Statement of Work and/or Master Agreement and/or SLA executed by the Client (the Solutions) and the services made available through or in connection with them (together with the provision of the Solutions, the Services), with the functionalities, modules and limitations specified in the Agreement.

2.2. Delivery mode

The Services shall only be made available online.

2.3. No further obligation

The Provider shall have no obligation to provide any service or software which are not expressly specified in the Agreement.

2.4. Acceptance

Each user agrees to be bound by the relevant parts of these ToS by browsing the Website; by subscribing for, or logging in for, the use of the Services and/or signing the Statement of Work and/or the Master Agreement, the Client expressly agrees to be bound by the Agreement.

Any subscription for the use of the Services by any of the Client’s employees, agents, or representatives, on behalf of the Client, is deemed as acceptance of the terms of the Agreement by the Client.

3. Right to access and use

3.1. In general

Subject to the Client’s compliance with all terms and conditions of these ToS, the Provider grants to the Client, where applicable, during the Subscription Period (as defined below), a revocable, non-exclusive and non-transferable right to access and use the Services, strictly in accordance with these ToS and the documentation provided by the Provider, on its own behalf and for its own purposes only.

3.2. Authorised users

Always subject to the limits of the Agreement, the Client shall use the Services through its own employees, agents, and/or duly authorised representatives having a need to access the Services only (the Authorised Users), and shall take appropriate steps to ensure compliance with the Agreement by such Authorised Users.

3.3. Account and information accuracy

To use the Services, the Client shall create an account providing at least the following information:

• a valid email address;

• where applicable, the name of the Client’s organisation;

• its first name;

• its last name; and

• its credit card number.

Where applicable, further information shall be provided, such as the company name and address.

The Client guarantees the truthfulness and accuracy of the information provided. It commits to update this information to reflect its current situation.

3.4. Limited licenses

If so specified in the applicable Subscription Plan or the Statement of Work, and always subject to the Client’s compliance with all other terms and conditions of the Agreement, the Provider may make the Services available under limited licenses, subject to the following additional conditions and limitations:

1. Trial license. If so specified in the Subscription Plan or the Statement of Work, the Services may be made available for free for a limited period of time exclusively for the purpose of the Services’ evaluation in view of the acquisition of a full license, to the exclusion of any commercial use (the Trial License). Upon expiration of the Trial License, the Client shall be given an opportunity to subscribe to a commercial paying licence.

2. Beta services. From time to time, the Provider may make Beta Services available to the Client. Beta Services are new or different Services, or functionality thereof, made available to clients for testing and evaluation, such as pilot, limited release, early access, etc. and are clearly designated as beta or by a similar description. The Client may choose to use such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported, and may be subject to additional terms and fees that may be presented to the Client. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement, or indemnity obligation of any kind, and so, which are hereby disclaimed notwithstanding anything to the contrary in the Agreement. For the avoidance of doubt, all restrictions and the Client’s obligations in the Agreement shall also apply to Beta Services. The Provider may discontinue Beta Services at any time in its sole discretion and may never make them generally available.

3.5. No delivery

The Services are provided as a IaaS/PaaS/SaaS offering (Infrastructure/Platform/Software as a Service); therefore, the Provider shall only grant to the Client a right to access and use the Services and shall not deliver any copy of the Services.

3.6. Developments

If, in connection with the Services, the Provider customises, develops or makes available additional features for, respectively provides patches, bug-fixes, updates or upgrades to the Services, such developments shall automatically become part of the Services, unless otherwise stipulated by the Provider.

3.7. Changes

The Client acknowledges that the Provider may implement modifications to the Services which may include modifications to the layout or functionalities of the Services as the Provider determines, and the Provider will have the unfettered right to remove any content from the Services or change their functionalities at its sole discretion.

4. Credentials

4.1. User credentials

If the Provider issues user credentials on a named user basis, such user credentials shall be used exclusively by the individual Authorised Users for which they have been issued, on behalf and for the benefit of the Client. If user credentials are issued to the Client without specifying the individual users, such user credentials may be used by any Authorised User, strictly on behalf and for the benefit of the Client.

4.2. Confidentiality

The Client shall be fully responsible for the confidentiality of any user credentials issued by the Provider and immediately inform the Provider of any loss or unauthorised disclosure of such user credentials, which shall then be deactivated and replaced by the Provider. The Client shall further immediately notify the Provider if any named user for whom the Provider has issued user credentials quits the Client’s organisation.

5. Availability, maintenance, and other services

5.1. Availability of the services

The Provider shall use reasonable endeavours to maintain a satisfactory availability of the Services, but does not guarantee their full availability. A monthly uptime may be guaranteed by the Provider, if and as described in the Agreement.

5.2. Maintenance services

As part of the providing of the Services, the Provider shall continuously seek to identify and attempt to resolve problems which may negatively affect the proper functioning and availability of the Services (the Maintenance Services). Such Maintenance Services comprises repairs (rectification of faults and errors to restore functionality) and servicing (maintenance to maintain functionality).

5.3. Services maintenance windows

For the Services, as a rule, the Maintenance Services are deployed regularly during maintenance windows (i.e. on weekdays between 6pm and 9am (Central European Time) or during the weekend) during which the Services may be fully or partly unavailable.

5.4. Client application maintenance windows

As a general rule, maintenance for Client applications is carried out regularly between 11:00 PM and 6:00 AM (server region time zone), during which the applications may be partially or fully unavailable.

5.5. Support Services and additional services

The Provider may agree to provide technical support to the Client for the Services (the Support Services), if and as described in the Subscription Plan or the Statement of Work. Support Services are provided in accordance with the Provider’s support policy.

5.6. Diligence

The Provider shall provide the Services to the best of its ability using all reasonable skill and care in accordance with standard professional practice. The Provider shall be bound by an obligation of means (and not to deliver a specific result).

5.7. Planning

If applicable, the Provider will endeavour to supply the Services within the deadlines set out in the Statement of Work. However, if the agreed deadlines are not expressly stipulated as binding in the Statement of Work, they will only be indicative in nature.

6. Client’s obligations

6.1. Payment of fees

Except for the free Trial License pursuant to Section 3.4(a), the Client shall pay the Fees as indicated in the Subscription Plan or the Statement of Work or by any other appropriate means (e.g. pricing schedules provided to the Client by the Provider) (the Fees), in accordance with the payment terms set forth in Section 10.

6.2. Proper use

The Client shall – and shall cause its Authorised Users to – at all times comply with all laws and regulations applicable to the access and use of the Services, these ToS, as well as the conditions and limitation of any license or other right granted, as set out in the Agreement or as otherwise specified in writing by the Provider. In particular, the Client or the Authorised Users shall not, without the prior consent of the Provider, and either during or after the Subscription Period: (i) use the Services for any illegal, harmful, or abusive activity; (ii) use the Services in a way that infringes, misappropriates or violates anyone’s rights; (iii) modify, copy, lease, sell or distribute any of the Services; (iv) attempt to or assist anyone to reverse engineer, decompile or discover the source code or underlying components of the Services, including the Provider’s models, algorithms, or systems; (v) interfere with or disrupt the Services, including bypass any protective measures or safety mitigations the Provider put on the Services

6.3. Licenses and authorisations

The Client shall maintain all permits and licenses that are required for the use of the Services.

6.4. Verifications

The Services may contain tools allowing the Provider to verify the Client’s compliance with these ToS and the Provider shall have the right to temporarily or permanently suspend the access to the Services and/or deactivate any user credentials issued for the use thereof in case of non-compliance with these ToS.

6.5. Client default

In case of default by the Client to comply with its obligations set forth in these ToS, the Subscription Plan or the Statement of Work, the Provider shall be excused from the performance of its obligations under the Agreement and assume no liability in relation therewith (without prejudice to the Provider’s other rights under the Agreement).

7. Content

7.1. Client’s Input

The Client may provide input (including documents, information, files and other data) to the Services (the Input). The Client is responsible for the Input, including ensuring that it does not violate any applicable law or the Agreement. The Client represents and warrants that it has all rights, licenses, and permissions needed to provide Input to the Services.

7.2. Client’s content

The Client represents and warrants that it has all the rights, licenses and permissions needed to make content available through the Services (the Content), in particular through a website. Further, the Client warrants that it will not make available through the Services unethical and/or harmful content such as spam, pornography, viruses, and misleading information.

7.3. Content responsibility

The Provider does not and cannot control and/or review the Input and the content posted and uploaded to the Services by the Client. The Provider may not be held liable for it, nor for its use or effects. The Client is solely responsible for the content made available through the Services.

7.4. Use of content

The Provider may use the Content to provide, maintain, develop, and improve the Services, comply with applicable law, enforce its terms and policies, and keep the Services safe.

8. Intellectual property rights (IPR)

8.1. Provider’s IPR

The Provider and its licensors retain all intellectual property rights to the Services, including but not limited to source code, trademarks, user interfaces, and designs. The Provider does not grant the Client any rights to its intellectual property other than those explicitly formulated in the Agreement. Accordingly, the Provider does not sell, assign, or transfer the above-mentioned intellectual property rights to the Client, except as explicitly formulated in the Agreement.

8.2. Client’s IPR

The Client and its licensors retain all intellectual property rights to the Content. The Provider is not granted any rights to the Content other than those explicitly formulated in the Agreement.

8.3. Reference and announcements

Unless otherwise instructed in writing, each Party grants each other the right to use and display the other Party’s name and trademark (including logo) as a reference for promotional purposes. In particular, the Client grants the Provider a world-wide, royalty-free and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting the Content. Every press-release and public announcements shall be commonly agreed upon among the Client and the Provider.

9. Third-party content

9.1. In general

The Services may contain content and/or software components incorporated into the Services or provided therewith, developed, distributed and/or licensed by third parties (the Third-Party Content). Such Third-Party Content shall be licensed, and the Client shall use such Third-Party Content under, and strictly in accordance with, the applicable terms and conditions by the respective third-party. The Provider shall use its best efforts to identify any Third-Party Content in the documentation of the Services.

9.2. OSS

Nothing in these ToS shall restrict, limit or otherwise affect any rights or obligations that the Client may have, or conditions to which the Client may be subject, under any applicable open-source licenses to any open-source software which may be incorporated in and/or provided together with the Services.

10. Financial terms

10.1. Payment terms

The Client shall pay the Fees for the Subscription Period on a monthly basis at the end of each month. All Fees shall be paid in the currency specified on the invoice. The Fees shall be charged directly on the Client’s credit card, unless otherwise specified in the Subscription Plan or in the Statement of Work.

10.2. Late payments

Late payments are subject to late payment interest in the amount of 5% p.a. The continued use of the Services by the Client is subject to the timely payment of all the Fees. The Provider may temporarily stop providing the Services or suspend any right to access or use any Services and/or any user credentials issued to the Client, if applicable, if the Client is in default for payment of any Fees due.

10.3. Taxes

Fees and rates indicated by the Provider shall be exclusive of any value added tax (VAT) and other charges, except where (i) the Client is based in Switzerland, in which case fees and rates shall be Swiss VAT inclusive, and (ii) otherwise specified on the invoice.

10.4. No offset

The Client may not offset amounts owed by the Provider to the Client against any Fees due to the Provider, except with the Provider’s express prior written approval.

10.5. Price changes

Subject to pricing terms agreed in the Statement of Work (if any), the Provider may modify the pricing of its services at any time, e.g. by adding new services for additional Fees, or amending current plans, at any time and in its sole discretion, provided that if the change concern the Client’s current Subscription Plan, the Provider will notify the Client in advance and the increase in Fees shall become effective upon the first day of the following month.

11. Certifications and security

11.1. Certifications

Data security and best practices are very important to the Provider, which has obtained the following certifications:

• ISO 27001 for information security management;

• ISO 27017 for cloud security; and

• ISO 27018 for protection of personally identifiable information in public cloud computing environments.

11.2. Provision of ISO-certified Services

ISO-certified Services may be provided in accordance with the Agreement. 

11.3. Security

The Client commits to comply with the Provider’s security policy. Depending on the Agreement, the Provider may implement strict security measures including encryption during transmissions of data and regular backups to secure the data against accidental loss, theft or unauthorized access or disclosure. Further information regarding data processing is available below in Section 12.

12. Data protection

12.1. Provider Privacy Notice and Data Processing Agreement

The Provider has issued a privacy notice (the Privacy Notice) and a data processing agreement (the Data Processing Agreement), which describe how personal data is collected and processed (i) when browsing the Website and (ii) through the Services and for what purposes. The Privacy Notice and the Data Processing Agreement are made available for informational purposes only and do not form part of these ToS. They outline the Provider’s compliance with applicable data protection laws, including the General Data Protection Regulation, where applicable.

12.2. In general

If the provision of the Services implies the processing by the Provider of (i) any personal data forwarded by the Client or the Client’s Authorised Users (in particular as part of the Input) (the Client Personal Data), or (ii) any personal data or information collected, processed, developed, produced or obtained from cookies or other tracking and analytics technology present on the Services including any tracking data related to user traffic), or relating to the Client’s and Authorized Users’ access to and use of the Services (the Usage Personal Data), the Provider and the Client shall fully comply with their respective obligations under applicable data protection laws and regulations.

12.3. Parties’ obligations

The Parties undertake to comply with applicable data protection legislation.

12.4. Client’s obligations

The Client shall ensure, with respect to any Client Personal Data processed by the Provider within the frame of the Services, if any, that such Client Personal Data has been collected and transferred to the Provider in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, the Client shall:

1. have, and maintain at all times, valid grounds for the processing of such personal data, including obtaining valid consent from the data subjects for the processing of their personal data, if such consent is required under the applicable data protection legislation; and

2. provide adequate information to data subjects about the collection and processing of their personal data.

12.5. Responsibility

The Client shall bear sole responsibility for the processing of the Client's Personal Data, if any, within the frame of the Services. The Client acknowledges and accepts that the Provider shall deem any processing of any Client Personal Data within the frame of the Services, as permitted under the Agreement, as well as any instructions by the Client with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.

12.6. Transfer

By accepting these ToS, the Client expressly acknowledges and agrees that the Client Personal Data or the Usage Personal Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Client’s jurisdiction, as the case may be as per the Data Processing Agreement.

12.7. Compliance actions

The Provider may forward to the Client any request, investigation or other action by any supervisory authority and/or any third parties (including data subjects), directed at the Provider with respect to the processing of any Client Personal Data, and the Client shall be responsible for addressing them in accordance with the law. If the Provider is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations, and/or to provide assistance to the Client, the Client shall fully indemnify the Provider for its effort and costs, including attorney’s fees, incurred in such context. Requests, investigations, or actions relating to the Usage of Personal Data shall be addressed by the Provider only.

13. Confidentiality

13.1. Principle

Each Party is obliged to keep confidential any information of confidential nature that it gets access to from the other Party when carrying out the Agreement. Each Party undertakes to take all necessary precautions to prevent unauthorised persons from gaining access to, or knowledge of, confidential information. The confidentiality obligation applies to each Party’s employees, subcontractors and any other third parties acting on behalf of the Parties.

13.2. Exceptions

The confidentiality obligation does not apply to: (i) information in the public domain, provided its publication is unlikely to have been caused by illegal acts or omissions; (ii) information that a Party has received prior written consent form the other Party to release; (iii) information that has become known to a Party via an independent third party who had an indisputable right to convey this information; (iv) information that a Party can document was developed independently of the information received from the other Party; and (v) information that a Party is obliged to disclose by law, by order of a competent authority or before a court. Each Party shall, if possible, be notified prior to such disclosure.

13.3. Duration of confidentiality obligation

The confidentiality obligation set forth in this Section 13 shall continue to apply after the termination of the Agreement.

13.4. Feedbacks

The Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) the Client provides to the Provider, and nothing in the Agreement or in the Parties’ dealings arising out of or related to the Agreement will restrict the Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Client. Feedback refers to any suggestion or idea for improving or otherwise modifying any of the Provider’s Services or other products or services.

14. Limited warranty

The Services are provided “as-is” and “as available”. To the maximum extent permitted by applicable law, the Provider disclaims all warranties with respect to the Services, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights. In particular, the Provider does neither represent nor warrant that the Services shall meet the Client’s requirements, that the operation of the Services will be uninterrupted or error-free, that any errors will be corrected, that it will ensure continued compatibility of the Services with any third-party products, even if they were compatible at any given moment, that the Services will always be available and remain available unchanged or that certain subscription models available at any given moment will remain available for renewal at the end of the applicable subscription period. 

15. Limited liability

15.1. Limited liability

The Provider’s liability under the Agreement, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.

15.2. Disclaimer

In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, the Provider disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether the Provider has been advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, cost of procurement for substitute products or services, interruption of use or loss or corruption of data or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.

15.3. Use of the Internet

The use of the Internet involves risks, in particular that the data transmitted may be intercepted, altered or deleted. By using the Services, the Client accepts these risks. The Provider declines all responsibility in this respect.

15.4. Limited amount

In no event, the Provider’s total liability during any period of 12 months shall exceed the amount of the Fees actually paid by the Client during the 12 months preceding the events giving rise to the Client’s claims.

15.5. Auxiliaries

The exclusions and limitations under this Section 15 shall extend to the Provider’s directors, officers, employees, agents, representatives, and auxiliaries.

16. Indemnification

16.1. Principle

The Client shall defend, hold harmless from, and indemnify the Provider, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including attorney’s fees, resulting from the Client’s use of the Services other than as permitted under the Agreement and strictly in accordance with any documentation provided for the Services.

16.2. Indemnification procedures

In case of any claims or proceedings made against the Provider, its directors, officers, employees or auxiliaries in relation to the Client’s use of the Services, the Provider shall (i) inform the Client without undue delay; and (ii) allow the Client to assist the Provider in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.

17. Term and termination

17.1. Entry into force

The Agreement shall enter into force upon acceptance by the Client of these ToS pursuant to Section 2.4 above.

17.2. Term of subscription

Unless otherwise specified in the Agreement, the Agreement shall be in effect for an indefinite period of time until duly terminated (the Subscription Period). The Client may only  claim reimbursement of its payment in case the Agreement is terminated for cause in accordance with Section 17.4.

17.3. Termination for convenience

Unless otherwise specified in the Agreement, each Party may terminate the Agreement at any time with effect immediately.

17.4. Termination for cause

Each Party may terminate the Agreement for cause (i) if the other Party is in material breach and the material breach remains uncured for a period of 30 calendar days from receipt of notice by the other Party, or (ii) if the business of the other Party becomes subject to liquidation, a debt moratorium, bankruptcy, or any other form of creditor intervention. The Provider may terminate the Agreement for cause if (i) reasonably suspects or determines that the Client’s use of the Services in any way materially violate the Agreement, is fraudulent, poses a security risk, could impact the operations of the Services or if needed to comply with the law or requests from public authorities, and (ii) the Client fails to pay Fees under the Agreement that have been overdue for a period of at least 100 calendar days. The Client may terminate the Agreement for cause if a monthly uptime guaranteed by the Provider under the Agreement has not been met for three consecutive months. The Client is entitled to a refund proportional to the remaining Subscription Period already paid for in case it lawfully terminates the Agreement for cause in accordance with (i) or (ii) above.

17.5. Termination due to inactivity

Following proper advance written notice, the Provider may deactivate and delete the Client’s account after 12 months of inactivity (meaning the Client has not logged in during that time) provided there is no Agreement in force. All Content and data related to that account will be permanently and irreversibly deleted.

17.6. Suspension

The Provider may suspend the Services without terminating the Agreement during any period of material breach or when reasonable considered in particular necessary for security reasons. The Provider will give the Client notice before suspending the Services when reasonable.

17.7. Retrieval of Content upon termination

The Client may request a retrieval of all Content at own cost by download for a period of up to 44 calendar days from notification of termination for convenience, and for a period of up to 14 calendar days from notification of termination for cause.

18. Miscellaneous

18.1. Independent contractors

The Parties acknowledge and agree that they shall be considered as independent contractors with no authority to contract for the other or in any way to bind or to commit the other or in a way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other. Under no circumstances shall either Party, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of the other.

18.2. Subcontractors

The Provider may use subcontractors for the provision of the Services. The Provider’s use of subcontractors shall not relieve the Provider of any of its duties or obligations hereunder, which shall be imposed on subcontractors.

18.3. Force majeure

Neither Party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, such as natural catastrophes, war, strikes, blackouts, Internet failure, virus outbreaks, or similar events. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimise the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section, and inform the other Party of its plans to resume performance.

18.4. Amendment

The Provider may unilaterally make changes to the Agreement. In the event of a material change, the Provider shall inform the Client with at least 30 calendar days’prior written notice, either by e-mail, or through a banner or other prominent notice within the Services. If the Client does not agree to the change and is a party to an Agreement in effect, in particular including a Statement of Work, a Master Agreement and/or an SLA, the Client may terminate the Agreement in accordance with the terms of such Agreement.

18.5. Entire agreement

The Agreement constitutes the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between them, as to the subject matter hereof.

18.6. Hierarchy

In the event of a conflict or contradiction between the provisions of the ToS and those of any other contractual documents (such as the Subscription Plan and the Statement of Work, any Schedule, the Master Agreement or the SLA), the order of priority shall be as follows: Statement of Work, any Schedule, Master Agreement, SLA, Subscription Plan and ToS, subject to express and specific deviations, deletions or additions contained in the relevant contractual documents to that effect.

18.7. Severability

If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement shall remain valid and enforceable to the fullest extent possible.

18.8. Electronic form

The words “execution”, “signature” and similar words in the Agreement shall be deemed to include unqualified electronic signatures (e.g. Docusign or any equivalent e-signature provider) which shall be of the same legal effect, validity or enforceability as a manually executed signature; while the terms “in writing” or “written” shall include communications by email or other electronic forms.

18.9. No waiver

The failure of either Party at any time to require performance by the other Party of its obligations hereunder shall in no way affect that Party’s right to fully enforce the other Party’s obligations thereafter.

18.10. Assignment

Neither Party shall assign and transfer any or all of its rights and obligations hereunder, in whole or in part, to any third party without the other Party’s prior written consent; provided however, that the Provider may assign and transfer all of its rights and obligations hereunder to any third party acquiring all or substantially all of its business related to the Services and/or the Solutions, without the Client’s consent.

18.11. No third-party beneficiaries

Except pursuant to Section 16, this Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of the Agreement.

19. Governing law and jurisdiction

19.1. Governing law

The Agreement and/or any use of the Services shall be governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.

19.2. Jurisdiction

Any dispute or controversy arising out of or in relation to the Agreement and/or the Client’s use of the Services shall be subject to the exclusive jurisdiction of the competent ordinary courts at the place of the registered office of the Provider. Notwithstanding the preceding, nothing in these ToS shall prevent the Provider from seeking injunctive relief or any other remedy available at law in any jurisdiction in case of any infringement of its intellectual property rights.