License conditions

1. Object of the contract

1. The subject matter of the contract is the provision of the financial advisory business software “MyLifePlan” (hereinafter: “Software” or “MyLifePlan”). Its elements include an advisory cockpit for the management of clients and contract data, calendar/appointment function, correspondence, commission accounting; hereinafter: “basic offer” as well as the products “MyLifePlan Client Analyses” and “MyLifePlan e-Pension Agenda” (both together or individually hereinafter: “optional functions”).

2. Based on the basic function of the basic offer, the Licensee can book the optional functions and additional services on the contractually agreed conditions in individual cases.

3. The agreed scope of services is set out in the license agreement in accordance with the contractual offer and the service level agreement. These license conditions shall apply to the license agreement and any future amendments thereto, for example due to an increase in the number of users or the booking of optional functions.

2. Scope of services

1. The software is operated by FinConTec on a suitable infrastructure and provided via the Internet (“Software As A Service”).

2. FinConTec shall maintain and service the software during the term of the contract and develop it further at its own discretion. This includes the updating of certain reference information as well as the expansion or modification of functions. FinConTec reserves the right to cancel, restrict or replace individual contents and functions of the software with new contents and functionalities in the course of these measures, provided that the legitimate interests of the Licensee are not unreasonably impaired by this.

3. FinConTec shall take measures to remedy significant and direct disruptions of the agreed functions (hereinafter referred to as “malfunctions”) that cancel or significantly reduce the contractually agreed use within a reasonable period of time. The Licensee shall tolerate temporary workarounds. Subject to Clauses 5, 7 and 8, the Licensee shall not be entitled to any further rights resulting from malfunctions.

4. If the Licensee discovers malfunctions, he shall inform FinConTec in writing and in a substantiated manner of the malfunctions within seven calendar days of their discovery. If the Licensee does not notify FinConTec of malfunctions within this period, his claim pursuant to point (d) shall lapse in relation to the malfunction identified.

5. The Licensee is aware that software cannot be created without technical errors. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation, program changes by the Licensee or similar shall not be considered a malfunction. In particular, FinConTec shall not assume any warranty for the availability and functionality of the hardware and software components of third parties connected to the software.

6. FinConTec grants the Licensee support for questions pertaining to the software.

7. Details on the granted services are specified in the currently valid version of the Service Level Agreement.

3. Licensee’s right of use

1. FinConTec grants the Licensee a non-transferable, time-limited and non-exclusive right to use the agreed functions for the Licensee’s own purposes.

2. The software and its contents are protected by copyright. FinConTec shall be exclusively entitled to the copyright and all rights of protection and exploitation derived therefrom. Data and information generated by the user are not content within the meaning of this provision. Insofar as products or product components of other providers are integrated into the software, the rights of these providers shall remain unaffected. However, FinConTec guarantees that the contractual use of the software by the Licensee does not conflict with any rights of these providers.

3. The CRM may only be used by named persons (hereinafter referred to as “users”) (named-user license model) if and as long as they work exclusively for the Licensee.

4. The resale, rental or lending of the software as well as the granting of sublicenses is not permitted.

5. The optional functions may only be used for the purpose of advising end customers. The Licensee may only transmit to the customer plans generated within the scope of agreed optional functions for which the Licensee has paid the contractually agreed remuneration or which are included in a free quota.

6. The Licensee is not permitted to generate consulting and calculation results with the help of interfaces from third-party systems or automated inputs into the user interface or to collect, reproduce or copy the contents of the software onto other data carriers or store them on retrieval systems for third-party use.

7. With the exception of the rights of use expressly stated in this contract and provided for by law, the Licensee shall not acquire any rights to the software. In particular, the Licensee shall not be entitled to decompile or edit the software (including error corrections) without the consent of FinConTec. The right of the Licensee to decryption in accordance with art. 21 of the Swiss Copyright Act (Urheberrechtsgesetz, URG) remains reserved.

4. License fee and default of payment

1. An annual basic fee per user is charged for the use of the basic service. An annual usage-independent fee is charged per end customer for the “e-Pension Agenda” optional function. The basic fees and usage-independent fees are calculated pro rata temporis from the time the right of use is granted to the respective user and/or customer until December 31.

2. Pay-per-use fees are charged for the “Customer analyses” products and for additional services.

3. The amount of the basic fee, the usage-independent and the usage-dependent fees shall be based on the current price list. FinConTec reserves the right to adjust the basic fee and charges at any time with a notice period of 2 months.

4. If the Licensee does not pay invoiced amounts due within 10 days of the invoice date, he shall be in default without prejudice to clause 4 d), without the need for a reminder from FinConTec.

5. If the Licensee is in arrears with the payment of two monthly installments or invoice amounts in full or to a not insignificant extent, FinConTec shall be entitled to temporarily block the user accounts until the outstanding license fees, including any ancillary costs and interest on arrears, have been paid.

5. Term of contract

1. The license agreement comes into force upon signing. The Licensee’s agreed right of use begins with the delivery of the access data or the activation of access for the agreed function.

2. The license agreement may be terminated by either party with three months’ notice to the end of the calendar year as a whole or for individual optional functions or users, but not before the end of a full calendar year. Notice of termination must be given in writing.

3. The contract may be terminated by either party without notice for good cause. Good cause shall be deemed to exist in particular if the other party commits a material breach of contract, for example if the Licensee violates the provisions under 3 or 4 point (e) and does not remedy this default within ten calendar days despite a reminder.

4. Upon termination of this Agreement, any right of the Licensee to use the Software shall expire.

6. Obligations of the licensee to cooperate

1. Hardware and software-related system and infrastructure requirements apply for the use of the software, for the fulfillment of which the Licensee is responsible. FinConTec reserves the right to change these requirements in the interest of technical progress, system security and the further development of the system occasionally and after timely announcement to the extent necessary.

2. Details can be found in the Service Level Agreement in its current version.

3. The Licensee shall set up an individual user account, including the relevant rights, for each user authorized in accordance with 3 point (j) within its organization. It shall ensure that passwords are chosen in accordance with secure standards and kept safe by users, and that user accounts are blocked immediately if necessary (e.g. if an employee leaves the organization).

7. Exclusion of warranty for defects

1. The warranty for defects is excluded unless FinConTec has fraudulently concealed a defect or has expressly assumed the warranty. The warranty for defects shall be replaced by the software maintenance according to section 2 lit. a).

2. The technical data, specifications and performance descriptions contained in the contractual offer, the user documentation, the website or other documents of FinConTec do not represent any warranties, unless they are expressly defined as such in writing by FinConTec.

3. Insofar as functional descriptions of the software are to be qualified as warranties, the claim of the licensee shall be limited to the elimination by FinConTec within a reasonable period of time of essential malfunctions that cancel or considerably reduce the contractually agreed use. A substitute performance at the expense of FinConTec as well as a reduction are excluded. If the licensee does not report such malfunctions to FinConTec in writing and substantiated within seven calendar days, his claim for rectification shall lapse.

8. Exclusion of liability

1. The Licensee’s claims for damages shall be governed by this liability clause irrespective of the legal nature of the claim and shall also include tortious claims.

2. The Licensee acknowledges that FinConTec cannot make any binding legal, financial or other professional recommendations that replace an independent review and consultation. FinConTec is not responsible for information that contains the views of third parties. Nor shall FinConTec be liable for any damages resulting from decisions made by the Licensee, end customers or persons in reliance on MyLifePlan, including those decisions related to the purchase and sale of financial market products or in connection with legal decisions, compliance decisions and/or risk management decisions. The Licensee agrees that it uses MyLifePlan in this respect at its own risk.

3. Notwithstanding the provisions of the Product Liability Act or any guarantee assumed by FinConTec, FinConTec shall only be liable for direct and immediate damages in the event of unlawful intent or gross negligence. In addition, FinConTec shall be liable for direct and immediate physical injury.

4. Any further liability of FinConTec is excluded. In particular, there is no strict liability or liability for slight negligence or for indirect or consequential damages beyond the scope of liability stated in this clause 8.3.

5. The above limitations of liability also apply to the liability of FinConTec for the damaging behavior of its employees, representatives or organs as well as for the personal liability of the employees, representatives and organs of FinConTec.

9. Data protection and data processing

1. If FinConTec collects and processes or uses personal data (hereinafter referred to as “order data”) from the Licensee, this shall be done on behalf of and within the framework of the instructions of the Licensee (order data processing). The Licensee assures FinConTec that he is authorized to transmit the order data transferred to FinConTec. The Licensee shall be responsible for the permissibility of the collection, processing and use of the order data, including the creation of the necessary transparency, and for the fulfillment of the statutory rights of data subjects (e.g. information, correction or deletion) in accordance with the applicable statutory provisions.

2. The Licensee instructs FinConTec to process the order data as required for the provision of the basic offer and the optional functions. The subject and duration of the processing, its nature and purpose as well as the type of order data and the categories of data subjects are set out in these License Terms.

3. FinConTec shall ensure that all order data is processed in accordance with the applicable statutory provisions and the agreements made and only in accordance with the instructions of the Licensee and shall in particular take the necessary technical and organizational measures to ensure efficient processing and to protect the order data against loss, falsification or unauthorized access.

4. FinConTec undertakes to take all data protection and data security measures required by the applicable data protection regulations. FinConTec shall comply with the technical and organizational security measures required in the context of proper operation and shall provide evidence thereof to the Licensee upon request.

5. The Licensee agrees that FinConTec stores the order data in machine-readable form and processes it within the scope of the purpose of the contractual relationship. All data shall be treated confidentially. FinConTec shall ensure that persons with access to order data are subject to an appropriate statutory or contractual confidentiality obligation and shall ensure that access to order data is restricted to persons who are dependent on data access for their contribution to the basic and optional functions.

6. FinConTec shall forward any requests for information from the data subjects to the Licensee and shall support the Licensee in fulfilling the rights of the data subjects.

7. FinConTec shall be entitled to use kr3m. media GmbH, Karlsruhe, Germany, as a subcontractor for the processing of the order data. For its part, kr3m. media GmbH, Karlsruhe, Germany, shall be entitled to use subcontractors. If FinConTec or its subcontractors intend to use further subcontractors, FinConTec shall inform the Licensee. If the Licensee objects to the deployment of a subcontractor for justified reasons within 14 days of receipt of this information, the Licensee may terminate the license agreement at any time with effect from the announced date of the deployment of a subcontractor. FinConTec shall conclude an agreement with subcontractors that offers at least the same level of protection as this clause 9. If the disclosure of order data to the subcontractor abroad is restricted under data protection law, FinConTec shall ensure appropriate guarantees (e.g. in the form of the EU standard contractual clauses) prior to the subcontractor’s first access to order data.

   More information on data protection and data processing is available here.

10. General provisions

1. This contract and its annexes conclusively regulate the contractual legal relationship between the parties; in particular, any general terms and conditions of the Licensee shall not apply. It shall also apply to all additional services and additional software components and functions agreed in the future.

2. FinConTec reserves the right to adapt or change these license conditions at any time. Subsequent changes or additions to these license conditions shall become part of the contract if the Licensee does not object within 30 days of notification of the changes or additions.

3. Legal disputes arising from or in connection with this contract shall be governed exclusively by substantive Swiss law.

4. Place of performance and jurisdiction is Teufen AR.

5. Declarations, collateral agreements, amendments or supplements must be made in writing to be effective, as must the waiver of the written form requirement.

6. Should individual provisions of this contract be or become invalid, this shall not affect the validity of the contract as a whole. In this case, the parties shall replace the invalid provision with a provision that comes closest to the objective pursued by the invalid provision. The same applies in the event of loopholes.

7. In the event of linguistic ambiguities with regard to translations of this contract, offers and the Service Level Agreement, the German version shall be binding.