1. Welcome to SixSq
1.1 Thanks for your interest in our Goods, Software and Services (Products). These Products are provided by SixSq Sàrl (SixSq) located at Rue du Bois-du-Lan 8, 1271, Meyrin, Geneva, Switzerland.
1.2 These terms and conditions (Terms) are applicable to the supply of Products. By using or purchasing our Products you are agreeing to these Terms to the exclusion of any other terms. Any additional or different terms proposed by Customer or any other party in respect to the supply of Products are expressly rejected by SixSq and are not applicable unless they have been specifically agreed to in writing by SixSq.
1.3 In these Terms we use the following defined terms a lot: Contract means the contract for the sale and purchase of and/or subscription for the Products in accordance with the Order Confirmation or otherwise accepted in accordance with Section 2.3, the Service Offer (or agreed or published price list), these Terms and the Order; Customer means the person so described in the Order Confirmation or, if none, in the Order, who purchases and/or subscribes for the Products; End-User means the end-user of the Software and/or end-users who are authorised to use Subscription Services; EULA means SixSq’s end user license agreement; Goods means NuvlaBoxes and/or any other physical goods described in the Contract which shall include deliverables to be provided pursuant to Services; License means the license granted to the End-User under the EULA; Order means Customer’s purchase and/or subscription order for Products; Order Confirmation means a written confirmation issued by SixSq to Customer accepting Customer’s Order; Personnel means a party’s employees, directors, officers agents, contractors and/or representatives; Services means all Nuvla, SlipStream, cloud management and related services (which may include installation, configuration, customisation, project management, maintenance, training, consultation and/or other services) provided by SixSq to Customer whether provided physically at Customer’s location, through internet or installed on SixSq’s or Customer’s hardware and Subscription Services, all as described in the Contract; Service Offer means SixSq’s offer issued to Customer for the supply of Products or in response to a tender or request for proposal; SixSq Materials means all materials, equipment, documents and other property of SixSq; SixSq Partner means an agent, reseller, systems integrator or distributor authorised by SixSq to sell, lease, license and/or provide Products to Customers; Software means the computer programs, software and/or any firmware (and any modifications or improvements thereto) licensed by SixSq to Customer subject to the Contract; and Specification means the description or specification of the Products provided in the Contract.
1.4 We use also other capitalised definitions (in bold) throughout these Terms. Also where the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2. Service Offers/Orders
2.1 Unless otherwise stated in writing by SixSq, Service Offers are non-binding and shall in any case lapse after 30 days from their date unless otherwise specified on the Service Offer.
2.2 The Order constitutes an offer by Customer to purchase and/or subscribe for the Products in accordance with the Service Offer, or if none has been given, SixSq’s current price list, and these Terms.
2.3 The Order shall only be deemed to be accepted (and a Contract formed) when SixSq issues an Order Confirmation. In the event of a conflict in the Contract documentation, the order of precedence shall be firstly the Order Confirmation, secondly the Service Offer, thirdly these Terms and finally the Order.
2.4 Any samples, drawings, descriptive matter, or advertising produced by SixSq and any illustrations contained in SixSq’s catalogues or brochures are produced for the sole purpose of giving an approximate description of the Products described in them. They shall not form part of the Contract or have any contractual force unless otherwise agreed by SixSq in writing.
3.1 Customer is responsible for satisfying itself as to the suitability of the Products for Customer’s application. SixSq shall not be bound by any statement concerning the scope of supply, performance or characteristics of the Products unless otherwise agreed by SixSq in writing in the Contract.
3.2 All Specifications and other information relating to Products submitted by SixSq are approximate only, unless otherwise agreed by SixSq in writing in the Contract.
3.3 SixSq reserves the right to make any changes in the Specification which are required to conform to applicable law and which do not materially affect the quality of the Products.
3.4 The Specification belongs to SixSq. Each party to the Contract retains all rights to its technical documents provided to the other party. The party receiving such technical documentation acknowledges these rights and shall not without the prior written consent of the other party make these documents available to any third party, either in whole or in part, nor use them for purposes other than those for which they were provided.
4.1 Unless otherwise agreed by SixSq in writing the price of the Products shall be the price set out in the Order Confirmation or Service Offer or if neither is provided then the current price list at the time of the Contract provided by SixSq shall be applicable.
4.2 The price of Products excludes any value added tax or similar sales tax, any import tax or other tax payable in the country of Customer, and all costs or charges in relation to unloading, carriage, insurance, customs import clearances and bank charges, all of which shall be paid by Customer in addition to the price.
4.3 SixSq offers certain standardised Service packages. Details of these standardised packages and related prices can be obtained upon request from SixSq and SixSq Partners.
4.4 For non-standardised Services involving SixSq’s Personnel, the price can either be fixed in advance or charged on a time and material basis, as follows: SixSq standard daily fee rates are calculated on the basis of a maximum of eight-hour day typically 9.00 am to 5.00 pm and are set out or referred to in the Order Confirmation or Service Offer. SixSq shall be entitled to charge an overtime rate on a pro-rata basis for each part of the day worked beyond 8 hours.
4.5 SixSq shall be entitled to charge Customer for any expenses reasonably incurred by its Personnel whom SixSq engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses (charged at cost) and for the cost of services provided by third parties and required by SixSq for the performance of the Services, and for the cost of any materials.
5.1 All payments shall be made in clear funds in Euros (or other currency specified in the Order Confirmation or Service Offer) either: (a) in accordance with the payment option instructions described in the invoice issued by SixSq on or after the Order Confirmation; or (b) to the designated bank account of SixSq.
5.2 All sums due to SixSq shall be paid within 30 days following receipt of invoice by Customer or by the time stipulated in the Order Confirmation or Service Offer if otherwise.
5.3 No deduction whether by way of set-off, counterclaim or otherwise, shall in any circumstances be made by Customer. Customer shall not be entitled to delay or withhold payment if the Products are delayed or not delivered due to reasons beyond SixSq’s reasonable control, if unimportant parts are missing, or if post-delivery work is to be carried out where the Products are available for use.
5.4 If any amount due and payable to SixSq under the Contract is overdue for reasons for which SixSq is not responsible, SixSq may, without prejudice to any other right it may have, either suspend deliveries or terminate the Contract and in addition charge Customer interest on amounts overdue at an annual rate of 5% above the 3 month LIBOR rate of the Swiss National Bank in force during the period that any such amount is overdue.
6. Customer’s General Obligations
6.1 Customer shall: (a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate; (b) co-operate with SixSq in a timely matter relating to the supply of Products; (c) provide SixSq and its Personnel on time with access to Customer’s premises, technology and facilities, equipment, materials or any other things as reasonably required by SixSq to supply the Products; (d) provide SixSq with such information as SixSq may reasonably require in order to supply the Products, and ensure that such information is accurate in all material respects; (e) prepare Customer’s premises for the supply of the Products; (f) obtain in good time and maintain all necessary licences, permissions and consents which may be required before the date on which the Products are to be supplied; (g) obtain any necessary customs import clearance and give all reasonable assistance to SixSq in obtaining any letter of invitation, permit, visa and similar document which SixSq or any of its Personnel may require in order to supply the Products at no cost to SixSq; and (h) keep and maintain all SixSq Materials at Customer’s premises in safe custody at its own risk and in good condition, until returned to SixSq.
6.2 Customer shall promptly respond to any and all of SixSq’s requests or submissions of documents, drawings or information for comment or approval.
6.3 Customer acknowledges and agrees that each End-User shall be required to accept the EULA to use the Software and/or online Services.
6.4 Customer is responsible for ensuring that Customer’s use of the Products (including its End-Users) is in compliance with this Contract and all applicable law including any laws concerning data protection and export of data and software.
7. Delivery of Products
7.1 Delivery of Products shall be in accordance with SixSq’s delivery policies or as otherwise specified in the Order Confirmation.
7.2 Dates cited for delivery shall be approximate only. If no delivery dates are specified, delivery shall be made within a reasonable time.
7.3 If SixSq is unable to deliver the Products, SixSq shall be entitled on behalf of Customer to put the Products into storage at Customer’s expense, and risk in the Products shall pass to Customer. Delivery to storage shall constitute delivery to Customer and SixSq shall become entitled to payment upon such delivery.
8. Transfer of Title and Risk for Goods
8.1 Legal title to the Goods that are purchased shall pass to Customer upon receipt by SixSq of all sums due from Customer in respect of the Goods. All risks of loss or damage to the Goods shall nevertheless pass to Customer on delivery.
8.2 Legal title to Goods being rented or under subscription shall remain with SixSq and Customer shall in respect of Goods: (a) hold the Goods as bailee for SixSq which requires that the Customer is responsible for the safe return of the Goods to SixSq when the rental or subscription period terminates or expires; and (b) clearly identify them as belonging to SixSq and not transfer possession to any third party.
8.3 SixSq may at any time when Customer is late in paying any rental or subscription payment or any instalment of the price of the Goods require the return of the Goods. If this requirement is not complied within a period of 7 days SixSq may (without prejudice to its other rights and remedies) repossess the Goods.
8.4 Customer shall maintain accurate records to ensure the continued traceability of any of the Goods purchased or rented from SixSq and shall provide reasonable assistance to SixSq in the event that any of the Goods are affected by a product recall or corrective action procedure implemented by SixSq.
9. Inspection and Acceptance of Goods
Customer shall inspect the Goods within 14 days after delivery and shall immediately notify SixSq in writing of any defects.
10. Warranty for Goods
10.1 Proper Use means storage, installation, commissioning operation and maintenance by Customer (or named end-customer in the Order Confirmation) in accordance with the Specifications, SixSq’s operating instructions and good industry practice.
10.2 SixSq warrants that the Goods supplied shall, under Proper Use, be free from material defects in design, material and workmanship affecting normal use and conform to the Specification. For Goods rented or subscribed for by Customer, the warranty shall apply until the end of the subscription and for Goods purchased by Customer, the warranty shall apply for the period of 24 months from the installation of the Goods by Customer or the end-customer, whichever occurs first (Warranty Period). Additional 12 month Warranty Period extensions may be purchased from SixSq.
10.3 SixSq’s obligation under this warranty shall be limited to making good by repair or replacement at SixSq’s option any defect in the Goods which appears before the expiry of the Warranty Period or, at SixSq’s option, reimbursing the price received by SixSq for the Goods. Goods subject to repair within the Warranty Period will be returned to Customer at no charge. Goods that are ‘out of warranty’, or where Goods have been mishandled by Customer, will be subject to a repair and evaluation charge and Customer must pay in advance the cost of returning the Goods.
10.4 SixSq’s obligation shall not extend to failure caused by fair wear and tear, accidents, misuse, neglect, improper maintenance, failure to observe SixSq’s operating instructions, excessive loading, use of any unsuitable material, repairs or modifications to the Goods which have been made without SixSq’s approval, or which result from designs and specifications provided by Customer, instructions given by Customer, software and firmware programs developed by Customer and used in or with the Goods, third party software, fibres, components or equipment and more generally by defects for which Customer is to blame or which are caused by activities performed by Customer without SixSq’s written consent, or resulting from other reasons beyond SixSq’s reasonable control.
10.5 This warranty is in place of and excludes to the fullest extent permitted by law, all other warranties and conditions, whether oral, written, statutory, express or implied.
11. Return of Goods
For any Goods that must be returned by Customer to SixSq e.g. defective Goods under Clause 10 or Goods that must be returned after the rental period, Customer must follow SixSq’s process for collection and/or return of Goods described in Appendix 1 (Collection/Returns Process).
12. SixSq’s Obligations for Services
12.1 SixSq warrants to Customer that the Services shall be provided using reasonable care and skill. This warranty expires immediately when the Service ends.
12.2 SixSq shall use all reasonable efforts to meet any performance dates specified in the Contract, but any such dates shall be estimates only and no penalties or liquidated damages shall be payable for late delivery.
12.3 SixSq shall have the right to change, modify or cease providing Services to the extent necessary to comply with any applicable law, third party or safety requirement, or which do not materially affect the nature or quality of the Services, and SixSq shall notify Customer in any such event.
12.4 SixSq will use reasonable efforts to tell Customer in advance when the Services are not available including for routine and unscheduled maintenance. For any unexpected downtime or for things beyond SixSq’s reasonable control SixSq will tell Customer what happened and will do its best to improve next time.
12.5 SixSq will as part of the Subscription Services provide Customer with SixSq’s standard customer support services during normal business hours. Further Services packages going beyond SixSq’s standard customer support services are also available. Further details can be provided by SixSq upon request.
13. Customer’s Obligations for Services
13.1 Use of the Services may require compatible devices and software and may require periodic updates and may be affected by the performance of these factors and Customer is responsible for meeting these requirements. SixSq regularly upgrades and updates its Software and in order to make efficient use of the Services (and Software provided) Customer should consult the Software and equipment upgrade, update and installation procedures described on SixSq’s website.
13.2 Customer agrees not to use the Services for any unlawful activity, for any harmful, discriminatory, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive activity. If there is a complaint or notice of violation SixSq may suspend use of the Services until resolved.
13.3 SixSq offers certain services on a subscription basis (Subscription Services). To use the Subscription Services Customer must register an account with SixSq and subscribe for each individual Subscription Service that Customer wishes to use. Additionally, certain Subscription Services will require registration of each End-User and may be for a defined subscription period. Customer must provide complete and accurate information when registering to use the Subscription Services including where applicable details of each End-User.
13.4 Additional terms may be applicable for Subscription Services which will be notified to you and you agree to these terms by using the Subscription Services.
13.5 Customer agrees to keep each End-User account and password for using the Subscription Services safe and secure and Customer accepts responsibility for the use of each account and Subscription services by each of Customer’s End-Users. If Customer becomes aware of any unauthorised account usage of Customer must notify SixSq immediately.
13.6 Customer shall permit SixSq to audit the use of the Subscription Services in order to ensure that usage is in accordance with the Contract. Such audit shall be conducted on reasonable notice and at SixSq’s expense, however if any audit reveals that: (a) Subscription Services are being used by any individual who is not an authorised End-User, then Customer shall promptly disable such unauthorized usage; and/or (b) pay to SixSq an amount equal to the subscription amount underpayment calculated in accordance with SixSq’s then applicable prices within 14 days of the date of the relevant audit.
14. Software, Licensing and Warranty
14.1 Any Software supplied to Customer pursuant to the Contract is provided under licence only, and title is retained by SixSq. Customer acknowledges and agrees that: (a) all Intellectual Property Rights (as defined in Clause 21) in the Software belong to SixSq; (b) that rights in Software are licensed (not sold) to Customer; (c) Customer has no rights in the Software other than the right to use the Software in accordance with the License; and (d) End-Users rights to use the Software are subject to them having agreed to the EULA.
14.2 The Software is licensed on either: (a) an indefinite fully paid up basis; or (b) on a subscription basis for a limited time period for which Customer has made full payment. The terms of the License are specified in the Order Confirmation or Service Offer. Any upgrades and/or major version changes to Software requires the Customer to purchase a support and/or maintenance service from SixSq.
14.3 Customer’s use of the Software for the duration of the License, is subject to: (a) the End-Users having accepted the terms of the EULA; (b) payment by Customer for the Goods and/or Software continuing to be up to date; and (c) SixSq continuing to be satisfied that the Goods and/or the Software are being used by Customer in accordance with these Terms.
14.4 Subject to the conditions of the Contract, SixSq grants Customer a non-exclusive and non-transferable license to the Software on the following terms: (a) Customer shall only use the Software for normal use as described in the Specification; (b) Customer shall not copy (except to the extent permissible under applicable law or for normal operation of the Software), reproduce, translate, adapt, vary or modify the Software, nor communicate it to any third party, without SixSq’s prior written consent; (c) Customer shall not rent, lease, loan, translate, merge, adapt, vary or modify the Software, nor sub-license it, except to the extent required lawfully to sell the Goods and/or license Software to the end-customer identified in the Order Confirmation; (d) Customer shall not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent permitted by applicable law; (e) Customer shall not use the Software on any equipment other than that approved by SixSq, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software; and (f) the Customer shall replace the current version of the Software with any updated or upgraded version or new release provided by SixSq to Customer promptly on receipt of such version or release.
14.5 Customer acknowledges and agrees that the Software may not be free of bugs or errors and the existence of any minor bugs or errors shall not constitute a breach of the Contract. Customer further acknowledges that any bugs, errors and/or restrictions in the use of the Software may be resolved by updating to the then current version of the Software and if it chooses not to update or upgrade when recommended by SixSq then Customer shall be solely responsible and liable for bugs, errors and/or restrictions in the use of the Software.
14.6 Customer acknowledges and agrees that the Software has not been developed to meet its individual requirements and therefore it is Customer’s responsibility to ensure that that the functions of the Software as described in the Specification meet Customer’s requirements.
15. Software Warranty
15.1 Subject to Customer having a current support and/or maintenance agreement with SixSq, SixSq warrants that the Software will conform in all material respects to the Specification for the period of 90 days from shipment of the Software to Customer (Software Warranty Period). If Customer notifies SixSq of any major defect in the Software (such that the Customer is unable to use the Software) within the Software Warranty Period, SixSq shall, subject to Clause 15.3 at the option of SixSq and where commercially reasonably: (a) repair the Software; or (b) replace the Software; provided such defect or fault did not result from: (i) Customer, or anyone acting with the authority of Customer, having amended the Software or using it outside the terms of the License for a purpose or in context other than the purpose or context for which it was designed or in combination with any other software not provided by SixSq; (ii) the Software having been loaded or installed onto equipment not approved by SixSq; (iii) a cause for which Customer is to blame or activities performed by Customer without SixSq’s written consent; or (iv) other reasons beyond SixSq’s reasonable control. This warranty will be in place of and exclude to the fullest extent permitted by law, all other warranties and conditions, whether oral, written, statutory, express or implied. SixSq’s liability and Customer’s remedies in respect of defects in the Software and any resulting damages whether arising from breach of contract, statutory duty, warranty, negligence or otherwise are solely and exclusively as described in this Clause 15.1, and SixSq shall have no liability of any kind for any such defects or damages which appear after the expiry of the Software Warranty Period.
15.2 In respect of any claim under the warranty described in Clause 15.1, Customer shall: (a) make available all information that may be necessary to assist SixSq in resolving the defect or fault, including sufficient information to enable SixSq to recreate the defect or default; and (b) give SixSq a reasonable opportunity after receiving notice of the defect to examine the Software (including through remote computer access if required).
15.3 The License shall automatically expire at the end of the Contract or be terminable by SixSq on written notice, provided that SixSq shall only terminate the License if: (a) the continued use or possession of the Software by Customer infringes SixSq’s or a third party’s rights; or (b) SixSq is compelled to do so by law; or (c) if Customer commits a material or persistent breach of the Contract or License which Customer fails to remedy (if remediable) within 10 days of written notice from SixSq requiring Customer to do so.
15.4 Upon termination of the License for any reason: (a) all rights granted to Customer under it shall cease; (b) Customer must cease all activities authorised by it; (c) Customer must immediately pay to SixSq any sums due to SixSq under it; (d) Customer must immediately delete or remove the Software from all computer equipment in Customer’s possession, and at SixSq’s option, immediately destroy or return to SixSq all copies of the Software then in Customer’s possession, and, in the case of destruction, certify to SixSq that Customer has done so; (e) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the License which existed at or before the date of termination or expiry; and (f) Clauses which expressly or by implication have effect after termination shall continue in full force and effect. The foregoing provisions of Clause 15.4 shall not apply to indefinite fully paid up rights to Software acquired by Customer (as specified in the Order Confirmation or Service Offer) unless the Contract has been terminated due to breach of Customer.
16.1 Any reselling of the Products to end-customers is subject to the written consent of SixSq and may be subject to a separate reselling agreement between SixSq and the Customer who wishes to resell. In any event Products that are resold shall also be subject to these Terms.
16.2 In the event of any conflict between these Terms and any reselling agreement, these Terms shall prevail unless it is expressly specified in the reselling agreement that a particular term should prevail over that contained in the Terms. The reseller shall not in any event increase the liability of SixSq beyond that contained in these Terms.
16.3 The reseller agrees to provide SixSq with details of its end-customers that SixSq may use for statistical and marketing purposes.
17. Termination of the Contract
17.1 Each party shall be entitled to terminate the Contract if the other party is in material breach of any provision of the Contract and such breach has not been cured to the satisfaction of the non-breaching party within 30 days after written notice thereof from the non-breaching party.
17.2 Without limiting its other rights or remedies, SixSq may terminate the Contract with immediate effect by notice to Customer if Customer fails to pay any amounts due under the Contract on the due day for payment, or it provides false or misleading information.
17.3 SixSq may terminate any Contract for Services upon 90 days prior written notice to the Customer.
17.4 On expiry or termination of the Contract for any reason: (a) Customer shall immediately pay to SixSq all of SixSq’s outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, SixSq shall submit an invoice, which shall be payable by Customer immediately on receipt; (b) Customer shall return all of SixSq Materials and any deliverables which have not been fully paid for; (c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and (d) Clauses which expressly or by implication have effect after expiry or termination shall continue in full force and effect.
18.1 Confidential Information means any and all information which is received by either party from the other as a consequence of any exchange of information or discussions relating to the supply of the Products that is designated as being confidential or by its nature reasonably should be understood to be confidential.
18.2 Each of Customer and SixSq agrees: (a) to hold all Confidential Information disclosed to it by the other party under the Contract in strict confidence; (b) to limit the dissemination of any Confidential Information within its organisation to those of its Personnel who have a need to know such Confidential Information for the purposes of the Contract; (c) to accept responsibility for any use or disclosure of Confidential Information by its Personnel in violation of the terms of this Contract; (d) upon request (at any time) from the disclosing party, return to the disclosing party or destroy all written and/or other materials containing Confidential Information provided to it by the disclosing party, together with all copies or reproductions thereof, within 30 days of receipt of such request.
18.3 The receiving party’s obligations of confidentiality contained in the Contract shall not apply to information that: (a) at the time of disclosure was in the public domain or comes into the public domain other than through breach of this Contract by the receiving party; (b) was known by the receiving party before disclosure by the disclosing party; (c) is lawfully disclosed to the receiving party by a third party acting in good faith and not bound by a confidentiality obligation; or (d) the disclosure of which is required by law, by any court of competent jurisdiction, or by any official regulatory body.
18.4 The obligations of confidentiality contained in these Terms shall continue in force for the period of the Contract and for 5 years following its expiry or termination.
19. Force Majeure
19.1 Except for payment of the price of the Products, if performance of any obligation under the Contract is prevented, restricted or delayed by a war, civil war or armed conflict; nuclear, chemical or biological contamination; natural disasters having widespread and significant consequences not reasonably foreseeable; catastrophic accident, breakdown of essential machinery or equipment; fire, explosion; any act of terrorism; industry-wide strikes, lockouts or similar labour disputes; or other events similar to those set out this Clause 19, beyond the reasonable control of the party whose performance is affected, then that party shall be excused from and shall not be liable for failure in performance to the extent of that prevention, restriction or delay and the time for performance shall be extended accordingly.
19.2 If performance is delayed for more than 3 months by any cause referred to in Clause 19.1 and the parties have not agreed upon a revised basis for continued performance at the end of the delay, then either party may after that period, and while the cause of the non-performance still exists, terminate the Contract by not less than 30 days’ notice in writing to the other party.
20. Customer’s Data
20.2 SixSq shall take appropriate technical and organisational measures against unauthorised or unlawful processing of Customer’s data or its accidental loss, destruction or damage. However, under no circumstances shall SixSq be held responsible for any such unauthorised or unlawful processing of Customer’s data or its accidental loss, destruction or damage.
21. Intellectual Property Rights
21.1 Intellectual Property Rights means all rights in any country or jurisdiction in patents, inventions, trade secrets and other rights in know-how, copyrights (including any extensions or renewals), rights affording equivalent protection to copyright, data, rights in database, registered designs, design rights, industrial designs and utility models, trademarks, trade names, trade dress, logos, domain names, business names, and all registrations or applications to register any of the foregoing items.
21.2 Unless otherwise agreed by SixSq in writing: (a) no title to any of SixSq Intellectual Property Rights shall be transferred to Customer under the Contract; (b) all Intellectual Property Rights in or arising out of or in connection with the Services shall remain the property of SixSq.
21.3 All SixSq Materials shall remain the exclusive property of SixSq. No SixSq Materials shall be reproduced, disclosed, copied or reverse engineered without SixSq’s prior written permission.
21.4 Customer shall not without the written consent of SixSq cover, obscure or in any way alter any distinctive mark forming part of or impressed on or affixed to the Goods or Software received by Customer from SixSq.
21.5 Customer acknowledges that, in respect of any third party Intellectual Property Rights, Customer’s use of such is conditional on the Customer obtaining written licence and/or valid authorisation from the relevant licensor on such terms as will entitle Customer to use such third party Intellectual Property Rights. Customer is also responsible for the purchase, installation, configuration and maintenance of such third party Intellectual Property Rights and all associated software and materials and for compliance with the terms of such written license and/or authorisation.
22. Limitation of Liability
22.1 The exclusions and limitations of liability contained in Clause 22 and elsewhere in these Terms shall apply to all warranties, claims, liabilities, suits, losses, damages and expenses, including costs and reasonable attorney’s fees of any kind whether in contract, tort or otherwise (Claims) made by Customer, End-Users, their representatives and/or any third party against SixSq, its affiliated companies and/or their Personnel, SixSq’s contractors, suppliers and SixSq Partners.
22.2 If Customer is not the end-customer and ultimate owner of the Goods, then: (a) to the maximum extent permissible under applicable law, SixSq shall have the benefit of the exclusions and limitations and other rights set out in these Terms by all ultimate owners, end-customers and any End-Users.
22.3 SixSq shall not be liable to the maximum extent permitted under applicable law whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, sales, revenues or savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising or otherwise resulting from the use of the Products or any inability to use the Products. SixSq shall not be liable for any of the losses described in this Clause even if SixSq has been informed of the possibility of such losses. SixSq shall also not have any liability as described in this Clause in the event of any delay in the performance of its warranty obligations. No warranties are applicable in cases where Customer: (a) has failed to pay the Price of the Products in question, even if Customer’s own end-customers have paid for the Products, or if payments are overdue in respect of any other Products; or (b) Customer fails to comply with the Collection/Returns Process.
22.4 In no event shall SixSq be liable for any loss or damage that was not reasonably foreseeable.
22.5 Products are not intended for use in direct life support applications where malfunction may result in direct physical harm or injury to persons and no warranties of any kind are given by SixSq for any such use.
22.6 Notwithstanding any warranty or other provision of these Terms or Contract: (a) SixSq does not guarantee, represent or warrant that use of the Products will be uninterrupted or error-free, or that SixSq will correct all defects, and SixSq makes no representation that the Products, or any feature or part thereof, may operate without failure, security intrusion or corruption causing loss of data or other information or other damage and SixSq disclaims any liability relating thereto, and (b) SixSq’s entire liability for all Claims will not exceed an amount of any actual direct damages incurred by Customer up to the amounts paid for the Product (if recurring charges, up to 12 months’ charges apply) by Customer for the Goods, Software and/or Service that is the subject of the claim, regardless of the basis of the Claim.
22.7 The foregoing liability limitations and exclusions does not apply in cases of gross negligence, wilful misconduct and fraud in cases where it would be illegal to exclude SixSq’s liability.
Customer shall defend, indemnify and hold harmless SixSq, its affiliated companies, and their respective directors and Personnel from and against all Claims, relating to or resulting from: (a) the breach by Customer of any obligation, representation or warranty in the Contract; (b) acts or omissions of any Customer’s Personnel, or the presence of Customer’s Personnel at an SixSq facility, including Claims resulting from injuries to Customer’s Personnel and Claims resulting from injuries, property damage, and loss of data caused by Customer’s Personnel; and (c) Customer’s or Customer’s Personnel’s failure to comply with all applicable laws or to obtain all licenses, permits and approvals necessary under the Contract.
24. Jurisdiction and Applicable Law
24.1 The Contract shall be governed by the laws of Switzerland without regard to its conflict of laws provisions. The provisions of the UN Convention on Contracts for the International Sale of Goods of January 1, 1988 shall not apply to the Contract.
24.2 Customer consents to the exclusive jurisdiction of the courts of Geneva, Switzerland for the adjudication of any disputes arising under the Contract.
25.1 Customer shall comply with all domestic and foreign export or import regulations.
25.2 SixSq may perform its obligations, and exercise its rights, under these Terms through its Personnel, any affiliated company, or a SixSq Partner in its absolute discretion for that purpose. Notwithstanding the foregoing, SixSq shall have no responsibility or liability whatsoever for any statement, representation or claim made by any SixSq Partner whether purported to be made on behalf of SixSq or otherwise.
25.3 Customer hereby authorises SixSq to use Customer’s name and logo on its website and in media releases for publicity and informational purposes, unless the Customer has explicitly requested otherwise, in writing.
25.4 SixSq may assign the rights and benefits arising from the Contract or any part of it to any of its affiliated companies. Any other assignment of the Contract shall not be permitted unless the other party consents in writing to such assignment (such consent not to be unreasonably withheld or delayed).
25.5 In the event that Customer is subject to a EULA and/or an SixSq service level agreement as well as these Terms, then in the event of any conflict the order of precedence shall be firstly the service level agreement, secondly these Terms and finally the EULA. SixSq may make changes to these Terms and EULA from time to time which will be published on SixSq’s website.
25.6 Notices under the Contract must be in writing and delivered by hand, first class post or email to the other party at its registered office or trading address at the date of the Contract or as subsequently notified to the other party. SixSq may publish notices on SixSq’s website.
25.7 The parties agree that no condition of, or benefit conferred by, the Contract will be enforceable by any third party provided that SixSq may at its discretion enforce its rights or perform its obligations through a SixSq Partner.
APPENDIX 1 - Collection/Returns: Process and Related Matters
A1. Return of defective Goods requiring repair
A1.1 Customer contacts SixSq support via email (email@example.com) regarding the Goods that are not properly functioning. SixSq support will review the case and may request additional information or suggest additional diagnostic steps to ensure that the Goods are not returned for repair unnecessarily.
A1.2 If SixSq support concludes that the problems cannot be solved remotely, it will acknowledge that the Goods need to be returned for repair and provide the Customer with a Return Merchandise Authorization (RMA) form and number.
A1.3 SixSq will either:
(a) make arrangements with Customer to collect the Goods directly from Customer, leaving Customer with substitute Goods; or
(b) send Customer replacement Goods together with detailed shipping instructions for returning the defective Goods.
A1.4 In the event SixSq provides Customer with detailed shipping instructions for return, Customer shall write the assigned RMA number on the shipping label and send the defective Goods and a copy of the RMA Form provided by the SixSq to the address received from SixSq. The defective Goods should be returned in either their original packaging or in the packing used for the replacement Goods. Customer shall be liable for any damage and/or subsequent failure of the defective Goods due to inappropriate packaging.
A1.5 The replacement/return shipping costs, including custom duties and taxes, of replaced/collected/returned Goods are at SixSq’s expense unless the Goods are out of warranty or the Goods have been damaged due to Customer’s fault or due to inappropriate packaging in which case replacement/collection/return shipping costs, duties and taxes shall be at Customer’s expense.
A1.6 SixSq’s repair team shall examine the defective Goods and either: (a) notify Customer that it can retain the substitute Goods as replacement for the defective Goods; or (b) repair/replace the defective Goods and return them to Customer together with return instructions for returning the substitute Goods to SixSq. If the Goods have been damaged due to Customer’s fault, SixSq’s costs for repair and/or replacement shall be payable by Customer to SixSq.
A2. No Trouble Found
If the returned Goods are fully functional and/or the SixSq’s repair team cannot reproduce the failure reported by Customer, then Customer will be required to pay an evaluation fee and the handling and shipping costs shall be payable by Customer.
A3. Additional notes
A3.1 SixSq’s standard repair/replacement service is a best effort service. Typically the average turnaround for the standard replacement process is 5 business days from the date of notification of defective Goods to SixSq, but in some cases the delay may be longer and is impacted by factors such as availability of replacement Goods, transportation logistics, customs formalities, etc. SixSq cannot be held responsible for any prejudice or damage that any delay in replacement may cause to Customer.
A3.2 Shipping/collection of Goods to/from Customer is done using SixSq’s preferred carrier and/or representatives (which may include SixSq’s resellers) and using SixSq’s preferred methods.
A4. Collection of Goods following expiry or termination of Contract
Following expiry of the Contract or termination of the Contract for any reason, Customer will make all Goods supplied to it under the Contract available for collection by SixSq in accordance with SixSq’s instructions, or if requested by SixSq, return the Goods following the shipping instructions given to Customer by SixSq. The shipping costs, including custom duties and taxes, for returning Goods are at SixSq’s expense. If Customer:
(a) fails to make any such Goods available for collection; or
(b) fails to return Goods in accordance with SixSq’s instructions; and/or
(c) if any collected/returned Goods are damaged due to Customer’s fault or due to inappropriate packing by Customer, then Customer shall be liable to SixSq for the resulting costs and damages.