General Terms and Conditions of Bluesun AG for license agreements for mybluesun software tools (out-of-the-box modules) and individual mybluesun software tools.

1 General

1.1 The contracting parties are Bluesun AG (hereinafter referred to as Bluesun) and the customer (the customer is any natural or legal person who has concluded a contract with Bluesun). For reasons of better readability, the simultaneous use of different gender forms is avoided in the text and the masculine noun form is used consistently. Of course, all genders are always meant and addressed equally.

1.2 These General Terms and Conditions replace the previous General Terms and Conditions of Bluesun, version V2012-07-mybluesun, and apply to all contracts, services and products of Bluesun, in particular in the areas of mybluesun content management, portals, software development, digital applications, apps, APIs and consulting.

1.3 Deviations from these GTC are only valid if they are confirmed in writing by Bluesun.

1.4 Unless expressly agreed otherwise, the provisions of these GTC shall apply to all contracts that Bluesun concludes with the customer. Any general terms and conditions of business, purchase, procurement, etc. of the customer shall not apply even if the customer refers to them in its order or order confirmation and Bluesun does not expressly object to them again.

2 Placing of order / components of the contract / services

2.1 Bluesun's offers are always subject to change. A contract shall only come into existence upon the signature of both contracting parties or upon receipt of a written order confirmation from the customer and its acceptance by Bluesun by countersignature or written confirmation or by commencement of the provision of services. Only the content of the contract thus confirmed and these GTC shall form the basis for the provision of services by Bluesun. The scope of the contractual services is set out in the aforementioned contractual documents and their annexes, such as service descriptions and concepts, insofar as these annexes are expressly designated by Bluesun as integral parts of the contract.

3 Bluesun's services

3.1 Bluesun shall make the mybluesun software tools ordered available to the customer for its own use. Unless expressly agreed in writing, Bluesun's scope of services does not include: the installation of the program on a suitable web server; the system settings or the installation of software updates; the application hosting including Adobe ColdFusion Server; individual software extensions or sortware adaptations; the value box (see below for the value box); and the value subscription (see below for the value subscription). The selection, installation, commissioning and operation are the sole responsibility of the customer.

3.2 Unless otherwise agreed, license agreements do not include the automatic provision of software updates. Updates can be obtained as part of the Value Box or Value Subscription or purchased separately.

3.3 Value Box service option: If the customer chooses the Value Box service option, first-level support is included. Furthermore, the customer is entitled to receive all new software updates for the mybluesun software tools if he chooses the Value Box service option.

3.4 Service option Value-Subscription: If the customer chooses the service option Value-Subscription, an individual subscription contract will be created for the customer's needs. By default, the customer is entitled to receive all updates of the mybluesun software tools used. Additional services such as first-level support, development cooperation, maintenance contracts, etc. can also be ordered.

3.5 The customer is familiar with the mybluesun software tools; these have been explained to him by Bluesun. By signing this contract, the customer confirms that it has received the required program data in full and in proper condition. Customers who host the mybluesun software tools on mybluesun servers shall not receive any program data.

3.6 The customer may reproduce the mybluesun software tools to the extent that such reproduction is necessary for the contractual use of the mybluesun software tools. The necessary reproductions include the installation of the software on a storage medium and the loading of the software into the working memory.

3.7 Furthermore, the customer is entitled to make a reasonable number of copies of the mybluesun software tools exclusively for backup purposes. This right also includes the regular creation of backup copies for the purpose of quickly restoring data after a system failure and the temporary use of the mybluesun software tools on a backup system. Copies of the mybluesun software tools made for backup purposes must be marked accordingly and may not be used for other purposes.

4 Obligations of the customer

4.1 The success or failure of the contract and the provision of services by Bluesun depends decisively on whether and to what extent the customer cooperates in the realization. The obligations to cooperate are primary performance obligations. As long as the customer does not or does not properly fulfill its obligations to cooperate, any agreed performance deadlines or dates shall be extended or postponed to a reasonable extent without Bluesun being in default. If Bluesun incurs additional expenses due to the customer's failure to cooperate, the customer shall reimburse Bluesun for such additional expenses in addition to the usual rates. In particular, the customer shall (a) grant Bluesun access to its technical facilities and premises, (b) provide Bluesun in a timely manner with the decision-making basis necessary for Bluesun to perform the service, (c) coordinate the dates and meetings necessary for the performance of the contract with Bluesun in an appropriate manner and, in cases of doubt, consult with Bluesun in good time, (e) notify Bluesun immediately in writing of any defects or malfunctions that occur, describing them in detail.

4.2 Bluesun and the customer shall each appoint a contact person. These contact persons shall be responsible for communication between the parties in the context of the performance of the contract.

4.3 The customer undertakes not to misuse Bluesun's services. In particular (a) not to violate criminal and regulatory provisions, (b) to observe copyrights and other industrial property rights of third parties, (c) not to take any anti-competitive actions, (d) not to send spam or junk mail or malware or grayware, (e) not to take any actions that violate applicable law or the rights of third parties. In particular, it is prohibited to carry out unauthorized mass requests or automated data collection, to falsify identities or content with the help of AI technologies, to engage in unauthorized crypto-mining, to manipulate users through misleading user guidance or to use hidden tracking techniques.

4.4 If the customer violates IT security requirements or uses insecure software, Bluesun reserves the right to restrict support or suspend the license until the security deficiencies have been remedied.

5 Changes to orders

5.1 Changes to the order by the customer are only possible with the written consent of Bluesun and may be associated with additional costs and result in a later performance of the service. Any costs or additional expenses incurred by Bluesun as a result of changes to the order shall be borne by the customer. If no agreement can be reached by the customer on the costs and postponements caused by changes to the order, Bluesun shall continue the originally agreed work or services in accordance with the planned schedule.

6 Remuneration

6.1 The customer is obliged to pay the fee agreed in the offer/order confirmation for all rights to the mybluesun software tools granted to him in accordance with the contract with Bluesun, whereby this fee is exclusive of VAT. Within the framework of agreements on mybluesun software tools, a basic distinction is made between license purchase and license rental for the remuneration to be paid by the customer (shown on the offer), whereby in the case of the Value Box option only a license rental is possible and the Value Subscription option is only possible in the case of a license purchase.

6.2 Bluesun's additional services that are not included in the scope of services under clause 6.1. shall be invoiced on a time basis. If several Bluesun employees work for the customer at the same time, the time worked shall be charged for each of these employees. Meetings and telephone discussions (including the necessary preparation time) relating to Bluesun's services shall also be charged on a time basis. The hourly rates are based on the price list valid at the time of commissioning, which can be viewed and requested from Bluesun at any time. In exceptional cases, flat rates may be agreed for certain services.

6.3 Even if lump-sum prices are agreed, travel times and travel expenses of Bluesun as well as work performed at the customer's request on Sundays and public holidays and other transportation costs shall be invoiced separately. Travel time from Bluesun to the customer and back will be charged at 50 % as working time. Means of transportation: car – CHF 0.80/km; train: national 2nd class or 1 st class with half-fare card, international 1 st class; flight: business class; accommodation: 4-star hotel.

6.4 Bluesun is entitled to invoice for the services rendered or, in the case of flat-rate prices, according to the progress of work at the end of each calendar month and/or on completion of a project.

6.5 All Bluesun prices are exclusive of the applicable statutory value added tax, which will be shown separately in the invoices.

6.6 If, after the conclusion of a contract, there is a significant deterioration in the customer's financial circumstances which appears to jeopardize Bluesun's claim to remuneration, or if Bluesun only learns of such a deterioration after the conclusion of the contract through no fault of its own, Bluesun may refuse to provide the services owed until the respective remuneration has been paid or security has been provided.

6.7 The customer may only set off undisputed or legally recognized claims and may only assert a right of retention in respect of such claims.

6.8 Bluesun is entitled to assign its claims for remuneration to third parties.

6.9 All prices are in Swiss francs (CHF) and exclusive of VAT. For invoices in foreign currencies, the exchange rate on the day of invoicing shall apply. Exchange rate fluctuations will be taken into account in the invoice.

6.10. Bluesun reserves the right to adjust prices annually in the event of persistent inflation. The basis for this is the Swiss national consumer price index (CPI).

6.11. Invoices must be paid within 30 days of the invoice date or by the payment deadline stated on the invoice without any deductions. If the customer is in default of payment, interest of 5 % per annum shall be due. Bluesun expressly reserves the right to assert further claims or legal remedies.

7 Deadlines

7.1 Deadlines for the provision of services by Bluesun shall only be binding if the customer fulfills all its obligations to cooperate in a timely manner. If payment on account has been agreed at the start of the contract, the performance deadlines specified by Bluesun shall apply from receipt of the agreed payment on account; the deadlines specified by Bluesun shall be postponed accordingly. If Bluesun fails to meet binding performance deadlines, the customer must first set a reasonable grace period. After expiry of this period, the customer may either continue to insist on performance of the contract or withdraw from the contract. Other claims are excluded to the extent permitted by law.

7.2 In the event of force majeure, including pandemics, natural disasters, strikes or official orders, the delivery periods shall be extended by the duration of the hindrance. Bluesun shall inform the customer immediately of the circumstances and their expected duration.

8 Term and termination of the contract

8.1 The license rental of mybluesun software tools, the Value Box and the Value Subscription are concluded for an indefinite period and may be terminated by either party in writing at the end of a calendar year subject to six months' notice.

8.2 Upon termination of the contractual relationship, the following shall apply: The customer must return all data carriers and documentation to Bluesun and completely uninstall and delete the mybluesun software tools from all of its own IT systems. Furthermore, the customer shall confirm in writing that it is not in possession of any further copies of the mybluesun software tools or the documentation, that the mybluesun software tools have been deleted in the aforementioned sense, and that the rights of use defined in this contract have not been exceeded during the term of the contractual relationship.

8.3 If the customer's corporate structure changes significantly (merger, takeover or significant growth), Bluesun may adjust the license fee based on the new size of the company or the number of employees.

9 Warranty

9.1 Bluesun warrants that the mybluesun software tools will perform the functions described in the contractual documentation if used in accordance with the contract during the term of the contract (in the case of license rental) or for one year from the date of purchase (in the case of license purchase). Technical specifications, performance descriptions and other information in documentation do not constitute warranted characteristics unless they are expressly identified as such. Bluesun does not guarantee that the software will function without interruption or error-free at all times. The customer acknowledges that, despite the greatest care, malfunctions, software errors or temporary restrictions on use may occur.

9.2 Error classification and response times. The customer is obliged to immediately document any defects detected and report them to Bluesun in writing. Processing shall be carried out according to the following error categorization: (a) Critical errors (system failure or serious functional defects) Definition: The software cannot be used or essential functions are not available (e.g. no access to the backend or no editing of content possible). Response time: Bluesun will begin to analyze and rectify the fault within 8 working hours of receiving the fault report. Correction: Depending on the severity of the error, it will be corrected with the highest priority by means of a hotfix or an alternative solution. (b) Medium errors (functional restrictions, but system remains usable): Definition: individual functions of the software are disrupted or restricted, but do not affect general use. Response time: Bluesun will begin analyzing the error within 3 working days of receiving the report. Correction: The error is corrected as part of a regular update or an individual solution, if necessary. (c) Cosmetic errors (minor impairments, visual errors): Definition: display problems, formatting errors or non-substantial impairments without functional impact. Response time: No guaranteed response time, remedied at Bluesun's discretion as part of a regular software update.

9.3 Limitations of the warranty. The warranty obligation shall not apply if the customer: (a) modifies or interferes with the mybluesun software tools without Bluesun's consent. (b) operates the software on a non-approved environment (server, operating system, database). (c) uses external software or plug-ins that are not compatible with mybluesun. (d) has not verifiably documented errors or restrictions or has not given Bluesun a reasonable opportunity to rectify them. Bluesun assumes no liability for malfunctions or errors caused by hosting environments, third-party software or improper use by the customer.

9.4 Remedy and mitigation. Bluesun may, at its sole discretion, correct errors by: (a) Providing a bug fix or update. (b) Workarounds or alternative solutions. (c) Providing subsequent documentation or configuration adjustments. If Bluesun is unable to correct an error or provide a reasonable solution within a reasonable period of time, the customer may demand a reasonable reduction of the license fee. Withdrawal from the contract is only possible if the error has been classified as a critical defect and Bluesun has been unable to rectify it despite several attempts to do so.

9.5 Exclusion of further claims. Further warranty claims, in particular compensation for loss of profit, business interruption or consequential damage, are excluded to the extent permitted by law.

10 Granting of rights

10.1 The customer shall immediately notify Bluesun in writing of any third-party claims asserted on the basis of Swiss copyrights (and other intellectual property rights) and authorize Bluesun to conduct the defense, including the conclusion of a settlement, insofar as the customer is considering recourse against Bluesun on the basis of these asserted third-party claims and Bluesun wishes to do so. In this case, the customer shall support Bluesun to an appropriate and reasonable extent. If the customer fails to inform Bluesun immediately in writing of any third-party claims asserted or, in the case of third-party claims based on non-Swiss copyrights and other intellectual property rights, any recourse against Bluesun shall be excluded.

10.2 In order to defend against third-party claims, Bluesun may, at its discretion, procure for the customer the right to continue using the mybluesun software tools or replace or modify the software without impairing the functions described in the user documentation. If Bluesun is unable to take any of these measures, Bluesun shall be entitled to withdraw from this contract. The customer's right to use the software and the user documentation shall end upon Bluesun's declaration of withdrawal from the contract. The license fee shall be refunded to the customer from the date of notification of the third-party claims.

10.3 Any further warranty of Bluesun towards the customer in case of actual or alleged claims of third parties is excluded.

11 Liability

11.1 Bluesun's liability shall be limited to the extent of its obligation to rectify defects or to the amount of the fees already paid for mybluesun software tools or, if the customer justifiably withdraws from the contract, to the extent of the reimbursement of any fees already paid. Any liability on the part of Bluesun for damages caused by delay, useless expenses, loss of profit, inconvenience or other consequential damages of the customer are hereby excluded to the extent permitted by law, whereby this limitation of liability shall also apply to any non-contractual and quasi-contractual claims of the customer.

11.2 Bluesun is not responsible for the content of the stored data or the stored content of the customer. Nor shall Bluesun be liable for damages suffered by the customer as a result of changes to the stored data by the customer himself or by other Internet users. The customer must regularly check the stored data (with regard to the data originating from him) for correctness and legality of the stored content. Bluesun shall not carry out any checks.

11.3 In addition, Bluesun shall not be liable for damages of any kind caused by circumvention of password protection and similar protective devices (e.g. firewall systems) against unauthorized access by means of "hacking" on the server used by the customer. Bluesun and the customer are mutually informed that a binding assurance of the security of the protective devices is not possible due to the various possibilities for unauthorized third parties to intervene on and via the Internet.

11.4 Bluesun assumes no liability for the fact that legally effective contracts are concluded or can be proven between the customer and third parties who come into contact with each other through developments created by Bluesun. If general terms and conditions, which the customer wishes to use vis-à-vis third party users, are included in the developments created by Bluesun, Bluesun shall neither assume responsibility for their legal validity nor shall it be liable for their effective inclusion in the contract between the customer and its customers. Bluesun also assumes no guarantee that data entered by the customer of the purchaser for any orders, for example in input masks developed specifically for this purpose, are correct or are transmitted correctly and unchanged to the purchaser. Sentences 1, 2 and 3 shall apply in particular if the development of an online store is also part of the subject matter of the contractual performance. The customer shall process third-party orders received by the customer via developments created by Bluesun exclusively at its own risk.

11.5 The exclusion or limitation of liability for damages pursuant to the above subsections shall also apply to any claims against employees or agents of Bluesun.

12 Data protection / duty of confidentiality

12.1 The processing of personal data is carried out in accordance with the applicable data protection provisions of the GDPR and the revDSG.

12.2 Bluesun acts as a technical service provider when using mybluesun and assumes no responsibility for the content that the customer stores or processes. The customer is obliged to comply with all data protection requirements (e.g. GDPR, revDSG) itself and, if necessary, to conclude an order processing agreement (AVV) with Bluesun.

12.3 The contracting parties undertake to treat as confidential all information that becomes known to them in connection with their activities in the execution of contracts concluded hereunder, in particular information about trade and business secrets of the other party, and in particular not to exploit such information for themselves or pass it on to third parties outside the purpose of the contract. Such information may only be passed on to those employees who require the respective information for the purpose of executing the contract, provided that the respective employee has undertaken to comply with this confidentiality provision by means of a written confidentiality obligation.

12.4 The obligation of confidentiality shall survive the termination of the performance of the contract and shall extend to all employees of the respective party.

12.5 The confidentiality obligation does not apply to such information that (a) was known to the other party prior to its receipt by the disclosing party, or (b) becomes generally known through no fault of the receiving party, or (c) was lawfully made available to the receiving party by a third party without an obligation of confidentiality, or (d) was independently developed by the receiving party, or (e) is required to be disclosed by law.

12.6 Bluesun is entitled to name the customer as a reference customer using the company name and logo as soon as a business relationship has been established. This applies irrespective of whether the service is still ongoing or has been terminated in the meantime. Use as a reference shall only take place within the customary business framework, e.g. on the website, in presentations or in sales documents. The customer may object to the use in writing if there is a legitimate interest in the deletion of the reference.

12.7 Both parties undertake to comply with the relevant data protection regulations.

13 Final provisions

13.1 Insofar as Bluesun provides services free of charge, these may be discontinued at any time without prior notice. This shall not give rise to any claim for reduction, reimbursement or damages.

13.2 Bluesun is entitled to amend these GTC periodically. In this case, Bluesun shall notify the customer of the amendment to the GTC in writing. If the customer does not object to the new GTC in writing within 14 days (the date of the postmark shall apply), they shall be deemed to have been accepted by the customer and shall also apply from this point in time to the contractual relationships already in progress between Bluesun and the customer in the area of mybluesun software tools. If the customer objects to the new GTC, this shall not affect the validity of the existing contractual relationships. These shall continue unchanged.

13.3 The customer may not assign rights and obligations under a contract with Bluesun to third parties without Bluesun's prior written consent.

13.4 The legal successors of both contracting parties shall also be bound by the obligations arising from contracts concluded on the basis of these General Terms and Conditions.

13.5 Bluesun shall be entitled to engage subcontractors for the performance of the contract without prior notice to the customer.

13.6 This contract shall be governed by Swiss law to the exclusion of its conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the registered office of Bluesun in Aesch, Canton Basel-Landschaft.

13.7 Should individual provisions of these GTC be invalid, this shall not affect the validity of the remaining provisions.

Edition February 2025