1. The Terms
The present General Terms and Conditions of Service apply to all Services of matchmycolor LLC, Gartenstrasse 95, 4052 Basel, Switzerland, (“matchmycolor”). Conflicting or additional terms of sale and in particular stipulations in Services Recipient's general conditions shall be valid only if they have been expressly agreed in writing.
(a) “Error(s)” shall mean a reproducible defect in the Software when operated in a Supported Environment, which causes the Software not to operate substantially in accordance with matchmycolor’ published documentation.
(b) “Recipient” shall mean the person or legal entity, which is entitled to receive the Services as indicated in the Agreement.
(c) “Services” shall mean all the support and maintenance services provided by matchmycolor as described in the Agreement.
(d) “Software” shall mean the Software specified in the Agreement.
(e) “Update” shall mean a new Software version in which errors of a previous version are corrected but which has similar functionalities as the previous version.
(f) “Upgrade” shall mean a new version of the Software with extended functionalities.
(g) “Term” shall mean the term during which the Services are provided by matchmycolor as specified in the Agreement.
(h) “Supported Environment” shall mean a hardware, operating system and database platform meeting the minimum system requirements for the proper use and operation of the Software as set forth in matchmycolor’ published documentation.
(i) “Agreement” shall mean the Agreement stating the exact scope of and fee for the Services provided.
3. Scope of Services
During the Term matchmycolor will provide the Services in accordance with generally accepted industry standards, subject to the procedures and limitations described herein or in the Agreement. All Services shall be provided based on matchmycolor’ knowledge at the time of performing the Service, the information provided by Recipient, and the details agreed with Recipient.
4. Assistance by the Recipient
Recipient shall provide matchmycolor with all information and materials as are necessary for matchmycolor to carry out the Services. Recipient warrants that all information provided by or on behalf of him/her/it shall be accurate. The Error determination activities on behalf of Recipient may include capturing Error messages, collecting configuration information and other similar activities to allow matchmycolor to reproduce the Error. Resolution activities may include access to Recipient’s personal and/or remote access to the Supported Environment. Recipient agrees to allow matchmycolor to use remote access tools, to access the Software in the Supported Environment and modify its configuration as part of matchmycolor’ Error determination and resolution activities. Recipient is responsible to implement the solutions provided by matchmycolor by means of Email and telephone and to respond in a timely manner to requests for information by matchmycolor.
5. Limitations of Services
The Services provided herein shall be limited by the time available, indicated scope, information available and/or provided by Recipient and lack of clarity of objectives by Recipient. matchmycolor does not accept responsibility for matters not covered by the Agreement or omitted due to the limited nature of the Services requested by Recipient.
Recipient understands and accepts that matchmycolor will only support the current version and the previous version of the Software and does not assume any obligation to develop and/or prepare Updates or Upgrades of the Software. Recipient further acknowledges that the Services do not include specific enhancements of the Software desired by Recipient.
matchmycolor is not responsible for providing support for Errors arising out of or related to: (I) the Recipient’s modification of the Software; (II) the Recipient’s use of the Software with any other software or hardware other than the Supported Environment; (III) problems resulting from use of the Software in a manner not permitted by the Recipient’s license (IV) damage from any source other than matchmycolor including but not limited to water, humidity, fire, power surges, computer viruses, and accidents. matchmycolor may, but is not obliged to, provide maintenance services in relation to the mentioned Errors I - IV. In case matchmycolor provides maintenance services in connection with the mentioned Errors I – IV Recipient will be charged per day for each specialist of matchmycolor plus reasonable travel and accommodation expenses (if any).
6. Service Fee and Payment
Recipient agrees to pay the service fee as indicated in the Agreement. Any invoices shall be payable thirty (30) days net after the date of invoice. The amount mentioned in the Agreement excludes VAT and any other taxes if applicable. matchmycolor is entitled to change the fees for the Services at its sole discretion upon written notice of at least four (4) months prior to the renewal date. Default interest at a rate of 8% will be charged on overdue amounts plus any additional bank expenses.
All information received from Recipient or developed by matchmycolor in relation to the specific Service for the Recipient shall be confidential and shall not be disclosed by matchmycolor without the written consent of Recipient. Such non-disclosure obligation shall not apply to information that (a) was known by matchmycolor prior to disclosure, (b) was developed by matchmycolor independently without the use of or reliance on any information received, (c) has become part of the public domain through no fault, act or omission of matchmycolor, (d) was provided to matchmycolor by a third party having no duty of confidentiality to Recipient.
Where matchmycolor is required by law (except by patent law) to disclose confidential information, matchmycolor shall not be in breach, provided that matchmycolor gives adequate notice to Recipient (where possible, of at least ten (10) days) prior to the required disclosure and that matchmycolor continues to maintain the obligations of non-disclosure with regard to all other third parties.
8. Data Privacy
Each Party shall;
- comply with all applicable data privacy laws;
- only disclose, if not agreed otherwise, such Personal Information to the other Party required by the other Party to communicate with such Party (e.g. name, email address, phone number);
- only Process the Personal Information received by the other Party for the purpose of communicating with the other Party; and
- delete such Personal Information, if so requested or if any communication with the other Party is not likely to be necessary anymore.
“Processing” shall mean any operation or set of operations that is performed upon Personal Information, including without limitation collection, recording, organization, storage, adaptation, modification, retrieval, consultation, retention, alteration, use, disclosure, dissemination, access, transfer, combination, erasure, or destruction.
“Personal Information” shall mean any information or set of information relating to an identified or identifiable individual, including without limitation (a) all information that identifies that individual or could reasonably be used to identify such individual, (b) all “personal data” as defined in the EU Regulation 2016/679, and (c) all information that applicable law defines as personal information or personal data, regardless of the medium in which such information is displayed.
9. Ownership of Work and Deliverables
All deliverables, such as manuals, reports and documentation (referred to collectively as "Work Product") conceived, developed, authored, produced or acquired by matchmycolor specifically for Recipient in the course of performance of Services shall be the exclusive property of Recipient, except that matchmycolor shall have free right to retain, copy, and use such Work Product for its own internal use. All analytical methods, processes, models, or any other inventions developed by matchmycolor in order to produce the Work Product for Recipient shall remain the exclusive property of the holder of the intellectual property rights.
Any intellectual property rights and titles not explicitly granted herein shall be and are the exclusive property of the holder of the intellectual property rights.
matchmycolor shall have the right, at any time, to assign (in whole or in part), transfer or sub-contract any of its rights, benefits or obligations under this agreement to any third party without the prior written consent of the other party.
11. Force Majeure
matchmycolor shall not be liable for any delay or failure to perform the Services due to any Force Majeure circumstances beyond its reasonable control. In the event of a delay caused by such circumstances the performance of matchmycolor shall be extended equitably on the duration, nature or reason of delay. matchmycolor shall notify Recipient in writing of any such circumstances promptly after their occurrence.
12. Warranty and Liability
matchmycolor warrants that it has the requisite skill and experience to perform the Services and that those Services will be performed with reasonable care.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR PARTICULAR USE OR OF MERCHANTABILITY, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. UNDER NO CIRCUMSTANCES SHALL MATCHMYCOLOR BE LIABLE TO RECIPIENT FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES FROM ANY ALLEGED BREACH ARISING OUT OF THE PERFORMANCE OF THE SERVICES OR THE USE OF RESULTS DELIVERED HEREUNDER. RECIPIENT’S SOLE REMEDY AND MATCHMYCOLOR’ SOLE LIABILITY FOR ALL CLAIMS IN THE AGGREGATE FOR DAMAGES (INCLUDING WITHOUT LIMITATION, DIRECT DAMAGES FROM ALLEGED NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF THE PERFORMANCE OF THE SERVICES OR THE USE OF RESULTS DELIVERED HEREUNDER) SHALL BE LIMITED TO THE VALUE OF THE OBJECTED SERVICES PROVIDED HEREUNDER.
13. Term and Termination
The Term shall be as set out in the Agreement. Any terms which by their nature extend beyond termination remain in effect until fulfilled and apply to respective successors and assignees. Recipient agrees to pay matchmycolor for all Services matchmycolor provides through Service termination and all expenses, if any, matchmycolor incurs through Service termination. In the event that Recipient does not pay the Service fee as described in clause 6 “Service Fee and Payment”, matchmycolor has the right to terminate the Services described above immediately.
14. Entire Agreement
These General Terms and Conditions for Services together with the Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous negotiations, comments and writings. The Agreement may be changed only by a written agreement signed by an authorized representative of the Parties. No oral agreement or conversation with any officer, agent or employee of matchmycolor or Recipient, either before or after the execution of the Agreement, shall affect, alter or modify the obligations of the parties hereunder.
In the event of any ambiguity or conflict between these General Terms and Conditions for Services and the General Terms and Conditions of the Software License Agreement, the General Terms and Conditions of the Software License Agreement shall govern.