SaaS Subscription Agreement Terms for Content Platform (FotoWare Switzerland AG)
First version March 2024
These terms of service ("SaaS Terms") govern Customer's use of Fotoware's Software-as-a-Service for Digital Asset Management of Customer's Content.
These SaaS Terms include the Order Form, the Confirmation Document, the Service Level Agreement, the Data Processing Addendum, the Privacy Policy, and the Documentation (together called this "Agreement"), unless otherwise specified. All said documents form an integral part of this Agreement.
You accept this Agreement by executing an Order Form referencing this Agreement. If you do not agree to all terms of this Agreement, you shall not subscribe to or use the Service.
Fotoware may occasionally and in certain territories appoint Partners to carry out its Services under this Agreement. The Partners are in such case bound by this Agreement on the same terms as Fotoware, unless otherwise specified.
DEFINITIONS
"Affiliate" means any legal entity that controls, is controlled by, or is under common control with a party. "Control" means direct or indirect ownership or control of more than 50% of the voting interests or the power to direct the management and policies of an entity."Agreement" means this SaaS Subscription Agreement including its annexes.
"Anniversary Date" means the yearly anniversary of the Start Date and is also referred to as the time of "renewal".
"Confirmation Document" means the document issued by Fotoware upon executed Order Form confirming Customer's covered Service and Start Date.
“Content” means Customer’s electronic data and information including but not limited to audio, video, images, and presentations.
“Customer” means the legal entity entering into this Agreement.
"Data Processing Addendum" or “DPA” means the data processing agreement governing Fotoware's processing of Customer's personal data under this Agreement, available on fotoware.com
"Documentation” means user manuals for how to get started and managing our Service, available on https://picturepark.com/help-cp.
“Fotoware” means the company FotoWare Switzerland AG, domiciled at Industriestrasse 25, 5033 Buchs AG, Switzerland, company number CHE-105.440.683, Switzerland.
“Next Business Day” means the next day where normal business operations are conducted. This is Monday through Friday from 9 a.m. to 5 p.m. CET excluding weekends and public holidays unless otherwise specified.
“Order Form” or "Quote" means an ordering document specifying the Service and associated Service Fees to be provided under this Agreement.
“Partner” means a reseller engaged by Fotoware for the sale and/or delivery of Service and support to Customer.
"Privacy Policy" means Fotoware's privacy policy describing how and to what extent Fotoware collects and processes Customer's personal data when using Fotoware's websites, available on https://picturepark.com/terms/privacy.
"Professional Services" means consultancy services such as, but not limited to (a) onboarding, (b) consultancy (c) configurations of the system, (d) set up digital consent management, (e) integrations, (f) training and adoption, (g) optimizations, (h) user guidance, (i) migrations, (j) workshops, (k) single sign-on, and (l) project management.
"Saas Terms" mean the terms of service according to this Agreement.
"Start Date" means the first day of the Subscription Period as stipulated in the Confirmation Document.
“Service” means Fotoware’s Software-as-a-Service solution for Digital Asset Management, including all Software to facilitate the Service.
"Service Fees" mean your payment for the Service as stipulated in any invoice issued to you.
“SLA” means the Service Level Agreement with warranties on uptime and availability available on fotoware.com, which forms an integral part of this Agreement.
“Software” means all software and associated interfaces used by Fotoware to facilitate the Service.
"Subscription Period" means the 12-month-long period that Customer is bound to subscribe to the Service under this Agreement, unless otherwise specified.
"Support Packages" means support offerings including but not limited to Fotoware’s different levels of support packages available upon request.
"User" means an individual within Customer's organization that is assigned a user account by Customer to access and use the Service in accordance with this Agreement.
2. ACCESS TO AND USE
2.1 Grant of access and use. This Agreement grants Customer the right to access and use the Service during the Subscription Period. The Service may only be used for Customer's internal business processes and in accordance with these SaaS Terms, the Confirmation Document, and the Documentation.
2.2 Access and use by Users. Customer is granted access to and use of the Service through one or more User accounts. Customer may provide User accounts to any individual within its organization, including but not limited to employees, consultants, and contract workers. Customer is obliged to provide correct and complete information about each User upon registration of the user account and to update this information to keep it accurate and complete.
2.3 User restrictions. Each User is assigned unique login credentials that can only be used by the individual appointed by Customer. Customer and its Users cannot share login credentials with other individuals or authorize access for third parties unless expressly allowed in this Agreement.
2.4 User control. Customer shall control Users' access to and use of the Service and is responsible for any use of the Service that does not comply with this Agreement. Customer shall notify Fotoware immediately of any known or suspected unauthorized use of the Service.
2.5 Monthly traffic network quota. Customer's User account is assigned a monthly network traffic quota (inbound and outbound) equal to its purchased storage for the Service. Fotoware will give Customer prompt written notice if Customer substantially exceeds its monthly network traffic quota before the end of the current month. Customer may increase its monthly network quota by purchasing more storage in accordance with Section 6.2. Fotoware reserves the right to (i) charge Customer for substantial excess usage above its monthly network traffic quota notified in writing by Fotoware in beforehand, and to (ii) suspend the Service in case Customer's usage substantially exceeds its monthly network quota.
2.6 Affiliates. Customer may subscribe to the Service for use by its Affiliates. If it does, the rights granted to Customer under this Agreement will apply to such Affiliates, but only Customer will have the right to enforce this Agreement against Fotoware. Customer will remain responsible for all obligations under this Agreement and for its Affiliates' compliance with this Agreement.
2.7 Restrictions on use of the Service. Except as expressly permitted in this Agreement, Customer must not and is not entitled to (1) use the Service to harm others or the Service, (2) use the Service or Software to attempt to build a similar service or website or to build a product containing similar functions or features, (3) use the Service in any manner or for any purpose other than as expressly permitted by this Agreement or any applicable law, (4) authorize or enable any third party to access or use the Software or the Service, (5) use the Service to engage in unlawful or fraudulent activity, (6) distribute, lend, rent, resell, lease, sublicense, or otherwise transfer any of the rights granted to the Customer by Fotoware to any third party, (7) modify, reverse engineer, decompile, disassemble, tamper with, repair, or create derivative works of the Service or Software used to access to Service, (8) use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out such activities, (9) use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Fotoware) to access or use the Service, (10) conduct penetration testing of the Service or Software or circumvent any security or authentication measures, (11) damage, disable, or impair the Service or the Software connected to the Service, (12) use the Service in connection with or operation of facilities, systems, devices, or in other situations in which the failure of the Service could lead to death, personal injury, or physical property and/or environmental damage, (13) cause inordinate burden on the Service or Fotoware's capacity or resources by generating an overload, spamming, or planting a malware.
2.8 Audits. Fotoware reserves the right to verify that Customer complies with this Agreement through technical means, for example but not limited to by monitoring that Customer does not use more storage than purchased. Fotoware will only use technical means that are compliant with these SaaS Terms, the DPA and applicable security standards.
3. CUSTOMER'S CONTENT
3.1 Customer's warranties. Customer warrants that all Content being uploaded, transferred, stored, created, and processed on the Service (1) is owned by Customer and/or its licensors, (2) does not violate any third parties' intellectual property rights, and (3) does not violate this Agreement or any applicable laws and regulations. Accordingly, Customer is solely responsible for the quality, integrity, legality and reliability, appropriateness and copyright of all Content being uploaded.
3.2 Grant by Customer. Customer grants Fotoware the right to access, process, transfer and disclose the Content (1) to the extent necessary to facilitate and provide the Service to Customer, and (2) to comply with any request from a governmental or regulatory body as required by law.
3.3 Information security. Fotoware will maintain appropriate administrative, physical, and technical measures to protect the security, confidentiality, and integrity of the Content in accordance with applicable laws and best industry practice. Fotoware will store the Content in one of the regions offered by Fotoware and chosen by Customer and ensure to keep it logically separate from any third-party data to avoid unwanted change and unauthorized access. The Content is protected from data loss by being copied daily by one or more separate backup solutions. For more information about how Fotoware protects your data, read the Fotoware Information Security Document available on How FotoWare Protects Your Data | FotoWare.
3.4 Personal data. Fotoware's processing of personal data as part Customer's Content is governed by the Data Processing Addendum.
4. SUPPORT AND PROFESSIONAL SERVICES
4.1 Standard support. Customer is entitled to standard support by using the contact form available on Fotoware Support or by contacting support@Fotoware.com in case of technical issues or problems with the Service. Support shall make reasonable efforts to respond to all support requests within the Next Business Day.
4.1 Standard support. Customer is entitled to standard support by using the contact form available on Fotoware Support or by contacting support@Fotoware.com in case of technical issues or problems with the Service. Support shall make reasonable efforts to respond to all support requests within the Next Business Day.
4.2 Support Packages. Fotoware offers Support Packages that may be ordered as an add-on to the Service in case Customer wants support beyond standard support.
4.3 Professional Services. Customer may order Professional Services as an add-on on a time and material basis on separate terms in case Customer needs consultancy services beyond standard support and/or a Support Package.
4.4 Support from Partner. Customer shall direct all support requests to Partner on the conditions outlined in 4.1 to 4.3 above if Fotoware has engaged a Partner to carry out this Agreement towards Customer. The Customer may escalate the support request to Fotoware if Partner is unable to respond within the Next Business Day from issued request. The Partner may escalate Customer’s support requests to Fotoware at its own discretion and whenever needed.
5. SERVICE AVAILABILITY
5.1 SLA. The Service shall have the availability and uptime as stipulated in the SLA. The SLA lists exhaustively all of Customer’s remedies due to breach of the SLA or unavailability of the Service in general.
5.1 SLA. The Service shall have the availability and uptime as stipulated in the SLA. The SLA lists exhaustively all of Customer’s remedies due to breach of the SLA or unavailability of the Service in general.
6. ALTERATIONS DURING THE SUBSCRIPTION PERIOD
6.1 Right to new releases. Customer is automatically entitled to use new versions of the Service from the time a new version is released during the Subscription Period. An exception is made for the release of new functionality offered as add-ons to the Service that must be purchased separately.
6.1 Right to new releases. Customer is automatically entitled to use new versions of the Service from the time a new version is released during the Subscription Period. An exception is made for the release of new functionality offered as add-ons to the Service that must be purchased separately.
6.2 Upgrades and downgrades. Customer may upgrade the Service during the Subscription Period with effect from the date of purchase. Customer may downgrade the Service with effect for the subsequent Subscription Period by giving written notice to Fotoware no later than 90 calendar days before renewal.
6.3 Maintenance, updates, and enhancements. Fotoware reserves the right to conduct maintenance, updates, and enhancements of the Service whenever needed to provide the Service in accordance with best industry practice. FotoWare will make reasonable efforts to conduct such work within the maintenance windows decided by time zone scheduled to night-time or during weekends.
6.4 Changes of the Service. Fotoware reserves the right to remove, change or add new functionality or features to the Service whenever deemed necessary to stay innovative, competitive, and lawful. Fotoware shall make its best efforts to deliver the Service in accordance with best industry practice independently of any changes made to the Service. In general, Customer shall be given 12 months’ prior written notice about the removal of any functionality or features. Fotoware may exceptionally remove functionality or features immediately (i) if needed to combat a serious security issue, or (ii) when required by applicable law. Customer shall be notified about such removal in writing within 5 calendar days upon the change with a description of the removal, its effect on the Service, and associated recovery measures.
7. FEES AND PAYMENTS
7.1 Payment terms. Customer shall pay for the Subscription Period on an annual basis in advance. All Service Fees shall be paid in the currency specified on the invoice. Payment is due 30 calendar days from invoice date unless otherwise specified on the invoice.
7.1 Payment terms. Customer shall pay for the Subscription Period on an annual basis in advance. All Service Fees shall be paid in the currency specified on the invoice. Payment is due 30 calendar days from invoice date unless otherwise specified on the invoice.
7.2 Taxes. The Service Fees are exclusive of any value added tax (VAT) and other charges unless otherwise specified on the invoice. Each party is responsible for paying any taxes or charges assessed to it by a competent tax authority. Any taxes or charges imposed on Customer through subscribing to the Service, including withholding taxes, are the responsibility of Customer, so that no deductions or withholdings can be made from Customer’s payments based on present or future taxes.
7.3 Late payments. Late payments are subject to late payment interest in the amount of 5% p.a. Fotoware may choose to suspend the Customer’s access to the Service upon 7 calendar days prior written notice until payment has been made.
7.4 Price changes. Fotoware may change the Service Fees with effect for the subsequent Subscription Period by giving Customer at least 120 calendar days prior written notice before renewal. Fotoware reserves the right to change the Service Fees based on documented increase of purchasing costs and/or Swiss Federal statistical office's harmonized index of consumer prices (HICP) until issued invoice for renewal.
7.5 Payments to Partner. The Service Fees shall be paid in accordance with instructions on the invoice from Partner if Fotoware has engaged a Partner to carry out this Agreement towards Customer. The Partner may apply local law for late payment interest in case of late payments.
8. TERM AND TERMINATION
8.1 Term of subscription. The Subscription Period is 12 months long from Start Date unless otherwise specified with automatic renewals of 12 months from each Anniversary Date unless terminated before renewal in accordance with Section 8.2 below. Customer cannot opt out during the Subscription Period and cannot claim reimbursement of its annual payment unless it terminates this Agreement for cause in accordance with Section 8.3 below.
8.1 Term of subscription. The Subscription Period is 12 months long from Start Date unless otherwise specified with automatic renewals of 12 months from each Anniversary Date unless terminated before renewal in accordance with Section 8.2 below. Customer cannot opt out during the Subscription Period and cannot claim reimbursement of its annual payment unless it terminates this Agreement for cause in accordance with Section 8.3 below.
8.2 Termination for convenience. Each party may terminate this Agreement for convenience with effect for the subsequent Subscription Period by giving 90 calendar days prior written notice to the other party before renewal.
8.3 Termination for cause. Each party may terminate this 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. Fotoware may terminate the Agreement for cause if Customer fails to pay Service Fees under this Agreement that have been overdue for a period of at least 100 calendar days. Customer is entitled to a refund proportional to the remaining Subscription Period already paid for in case it lawfully terminates this Agreement for cause in accordance with (i) or (ii) above.
8.4 Suspension. Fotoware may suspend the Service without terminating this Agreement during any period of material breach or when reasonably considered necessary for security reasons. Fotoware will give Customer notice before suspending the Service when reasonable.
8.5 Retrieval of Content upon termination. Customer may request a retrieval of all Content and associated metadata at own cost by download for a period of up to 90 calendar days from notification of termination for convenience, and for a period of up to 30 calendar days from notification of termination for cause.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Fotoware's IPR. Fotoware and its licensors retain all intellectual property rights to the Service, associated Software and Documentation, including, but not limited to trademarks, user interfaces, API's, and designs. Fotoware does not grant Customer any rights to its intellectual property other than those explicitly formulated in this Agreement. Accordingly, Fotoware does not sell, assign or transfer the above-mentioned intellectual property rights to Customer and Customer has not right to modify or change any associated Software.
9.1 Fotoware's IPR. Fotoware and its licensors retain all intellectual property rights to the Service, associated Software and Documentation, including, but not limited to trademarks, user interfaces, API's, and designs. Fotoware does not grant Customer any rights to its intellectual property other than those explicitly formulated in this Agreement. Accordingly, Fotoware does not sell, assign or transfer the above-mentioned intellectual property rights to Customer and Customer has not right to modify or change any associated Software.
9.2 Customer's IPR. Customer and its licensors retain all intellectual property rights to the Content. Fotoware is not granted any rights to the Content other than those explicitly formulated in this Agreement.
9.3 Reference and Announcements. Each party grants each other the right to use and display the other party's name and trademark as a reference for promotional purposes. Every press-release and public announcements shall be commonly agreed upon among the Customer and Fotoware.
9.4 Ownership to data. Customer and its licensors retain all rights to data being uploaded, transferred, stored, created, and processed on the Service as part of the Content. Customer grants Fotoware a right to process aggregated, anonymized data to improve the Service.
10. CONFIDENTIALITY
10.1 Confidentiality obligation. Each party is obliged to keep confidential any information of confidential nature they get access to from the other party when carrying out this Agreement. Each party undertakes to take all necessary precautions to prevent unauthorized 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.
10.1 Confidentiality obligation. Each party is obliged to keep confidential any information of confidential nature they get access to from the other party when carrying out this Agreement. Each party undertakes to take all necessary precautions to prevent unauthorized 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.
- Information in the public domain, provided its publication is unlikely to have been caused by illegal acts or omissions,
- Information that a party has received prior written consent from the other party to release,
- Information that has become known to a party via an independent third party who had an indisputable right to convey this information,
- Information that a party can document was developed independently of the information received from the other party, and
- 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.
11. INDEMNIFICATION
11.1 Fotoware indemnity. Fotoware shall defend Customer at Fotoware's expense against any third-party claim towards Customer alleging that the use of the Service infringes that third party's intellectual property rights and shall indemnify and hold Customer harmless against any losses arising from such third-party claim. Fotoware shall however have no liability for claims or losses to the extent they arise from (1) modification of the Service by Customer, (2) use of the Service in a manner inconsistent with the Documentation or in violation of this Agreement, or (3) use of the Service in combination with any other product or service not provided or recommended by Fotoware. If Customer is prevented from using the Service or if Fotoware reasonably believes it will be prevented, Fotoware may, at its own option, (a) procure the right for Customer to continue to use the Service, or (b) replace or modify the Service so that it is no longer infringing. If neither (a) nor (b) is reasonably available to Fotoware, then (c) either party may terminate the Agreement. Fotoware's liability for such termination will be a refund to Customer proportional to the remaining Subscription Period, in addition to the indemnification obligations in this Section 11.1.
11.2 Customer indemnity. Customer shall defend Fotoware at Customer's expense from any third-party claim against Fotoware alleging that (1) Customer's use of the Content or (2) Customer's use of the Service infringes such third party's intellectual property rights, and Customer shall indemnify and hold Fotoware harmless against any losses relating to such a claim.
11.3 Conditions. The indemnitor's obligations in Section 11.1 or 11.2 above are conditioned on the indemnitee (1) promptly giving written notice of the third-party claim to the indemnitor, (2) granting the indemnitor the right to control the defense and settlement of the third-party claim, (3) not settling any claim or making any admission of fault or liability in the name of the indemnitor without indemnitor's prior written consent, and (4) providing to the indemnitor, at the indemnitor’s cost, all reasonable assistance.
12. LIABILITY
12.1 Limited warranties. Fotoware warrants that it has the full legal right to provide the Service in accordance with this Agreement, and that the Service will perform (1) substantially as described in the Documentation and (2) according to the SLA. Fotoware does not warrant that the Service will be uninterrupted or error-free.
12.2 Remedies. For breach of warranty in accordance with Section 12.1 (1), Fotoware will at its own option (1) advise how to make the Service perform substantially as described in the Documentation, (2) refund a Service Fee paid by Customer proportional to the documented failure of the Service, or (3) repair the Service. Remedies for breach of SLA in accordance with Section 12.1(2) are governed exhaustively by the SLA and every other remedies are expressly excluded.
12.3 Exclusions. The limited warranties in Section 12.1 do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement or breach of minimum system requirements specified in the Documentation. The warranties do not apply to preview, prerelease or beta versions of the Service or any features not covered by the Documentation.
12.4 Disclaimer. Except as specifically provided in this Agreement, Fotoware disclaims all warranties or similar liability, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
13. LIMITATION OF LIABILITY
13.1 Maximum liability. Each party’s aggregated liability to the other party under this Agreement is limited to the sum of Customer’s annual payment during the specific Subscription Period in which the loss occurred.
13.2 Exclusions. Each party's liability to the other party under this Agreement is limited to direct loss and does not include incidental or indirect loss such as loss of revenue, loss of profit, loss of data, loss of business, depletion of goodwill or similar.
13.3 Exceptions. Each party’s liability to the other party under this Agreement is uncapped and unlimited if (1) inflicted with gross negligence or with intent, (2) if inflicted in breach of the other party's intellectual property rights pursuant to Section 9, or (3) if subject to indemnification pursuant to Section 11.
14. MISCELLANEOUS
14.1 Notifications. Notifications must be in writing and will be treated as delivered on the date of received email.
14.2 Contact person. Customer is obliged to designate a contact person on the Order Form that shall be the point of contact for all notifications directed to and from the Customer.
14.3 Restrictions on transfer. Customer may not transfer this Agreement to any Affiliate or third party without Fotoware's prior written consent.
14.4 Fotoware Affiliates and subcontractors. Fotoware may perform its obligations under this Agreement through its Affiliates and use subcontractors to provide certain services. Fotoware remains responsible for their performance.
14.5 Government procurement rules. By accepting this Agreement, Customer warrants that (1) it complies with all applicable government procurement laws and regulations, (2) that it is authorized to enter into this Agreement, and that (3) this Agreement satisfies all applicable procurement requirements.
14.6 Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party's reasonable control (such as, but not limited to power blackout, pandemics, acts or omissions of Internet traffic carriers or regulatory or governmental bodies) and that makes it extremely difficult or impossible to fulfill the duties under this Agreement. This Section will not, however, apply to Customer's payment obligations.
14.7 Governing law. This Agreement shall be governed by and interpreted in accordance with Switzerland law, excluding its conflict of law provisions.
14.8 Dispute resolution. In case of a dispute between the parties that cannot be solved by negotiations, each party shall be entitled to have such dispute exclusively decided by the ordinary courts at the seat of Fotoware. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights.
14.9 Entire Agreement and order of precedence. This Agreement is the entire Agreement between Fotoware and Customer regarding Customer's access to and use of the Service and supersedes all prior and contemporaneous agreements, written or oral, concerning its subject matter. The parties agree that any additional or conflicting terms contained in an Order Form or otherwise presented by Customer are void. These SaaS Terms take precedence over any conflicting terms in other documents that are a part of this Agreement that are not expressly resolved in those documents.
14.10 Changes to this Agreement. Fotoware may unilaterally make changes to the Agreement provided that such changes do not impair Customer's rights and obligations. Material changes of the Agreement require Customer's consent within 30 calendar days from notification. Customer may terminate the Agreement in accordance with Section 8.3 (i) if Customer rejects the material changes within the notice period. Consent is alternatively deemed given if Customer remains passive beyond the notice period.
14.10 Changes to this Agreement. Fotoware may unilaterally make changes to the Agreement provided that such changes do not impair Customer's rights and obligations. Material changes of the Agreement require Customer's consent within 30 calendar days from notification. Customer may terminate the Agreement in accordance with Section 8.3 (i) if Customer rejects the material changes within the notice period. Consent is alternatively deemed given if Customer remains passive beyond the notice period.