ACAR (ROOM MANAGER Solution)
General Terms & Conditions
Section 0 – Definitions
For these Terms and Conditions, the following terms shall have the meanings set forth below:
- “Customer” refers to the individual or entity purchasing and using the Room Manager Software.
- “Contract” means the agreement between ACAR and the Customer, including these Terms and Conditions and any other documents incorporated by reference.
- “Software” refers to the Room Manager Software provided by ACAR under this Contract.
- “Services” refer to any services provided by ACAR in connection with the Software, as described in the Contract.
- “Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, and other intellectual property rights related to the Software and Services.
Section 1 – Scope
- ACAR Learning Technologies GmbH (now referred to as” ACAR”) provides all deliveries and services exclusively based on these GTCs.
- The Terms and Conditions of ACAR apply exclusively. ACAR only accepts terms and conditions of the Customer that deviate from these general or partial terms and conditions if this has been expressly agreed in writing. The General Terms and Conditions of ACAR shall also apply only if ACAR provides deliveries and services without reservation in the knowledge of the conflicting conditions of the Customer.
- These General Terms and Conditions also apply to future transactions of the parties in so far as they are legal transactions of a related nature.
- ACAR is entitled at any time to amend or supplement these General Terms and Conditions with a notice period of 3 weeks before the date of the scheduled effective date. Suppose the Customer does not object to the amended terms and conditions within two weeks of receipt of the change notification but, at the latest, by the time the changes come into force. In that case, these will take effect following the announcements.
Section 2 – Contract Duration and Termination Terms
- Contract Term: The Contract commences on the date of ACAR’s written or email confirmation of the Customer’s order and continues until terminated by the provisions of Section 2.
- Subcontracting: ACAR may subcontract others for order execution without the Customer’s consent unless the Customer has reserved a right of participation in writing.
- Termination of Recurring Work: Regular recurring work without a specified notice period or deadline can be terminated within three months at the end of the quarter. If the average invoice amount is less than USD 500 per month, the notice period is one month at the end of the month.
- Written Notice: Withdrawal or termination as permitted by law or under the Contract must be in writing.
- Automatic Renewal: If the Customer fails to provide written notice within the specified time frame, the support and maintenance contract will automatically renew for an additional term.
- Software Access Post-Termination: Upon termination, the Customer’s right to use the Software ceases, and the Customer is responsible for terminating their access and use of the Software on their Microsoft 365 tenant.
Section 3 – Delivery and Performance Obligations
- ACAR provides the deliveries and services due within the Contract within the agreed time limits. Delivery dates are only valid if ACAR has expressly confirmed them in writing or by Email.
- Delivery periods shall be extended by the period during which ACAR is prevented from delivering the delivery or performance on time due to unforeseen circumstances and obstacles, particularly force majeure, government measures, governmental intervention, or industrial disputes for which It is not responsible. The same applies to the period during which ACAR waits to fulfill the Customer’s obligations to cooperate, which is necessary for service delivery.
- ACAR is not responsible for the absence or interruption of the agreed deliveries and services (disruptions) caused by the improper use or treatment of the delivery or service by the Customer or third parties whose actions are attributable to the Customer or for the Customer to use its hardware or Software or other material in connection with ACAR’s deliveries and services, which is not expressly permitted by ACAR and caused by the fault or the Customer does not participate to the extent necessary in the analysis or elimination of the fault by ACAR.
- The Customer accepts that ACAR is not to be accountable for disruptions to deliveries and services caused by disruption to traffic on the Internet, in particular, Microsoft Office 365 Cloud Services.
- The Customer accepts that ACAR will not be arising from any disruptions that May interfere with changes made by the cloud provider, particularly Microsoft Office 365, as part of updates, functional limitations, and the like that affect ACAR’s solutions.
- Backup and restoration of the solution are the Customer’s responsibility, as the solution runs on the Client’s Microsoft 365 tenant.
- ACAR is not obligated to install delivered programs without an express written agreement.
- The compatibility of delivered programs with the Software and hardware of the Customer is only due to an express written agreement. Even if ACAR provides the installation as such, ACAR is not obliged to adapt existing programs to the Software supplied by the Customer. Furthermore, ACAR is not responsible for the Customers’ data, particularly the website’s proper functioning within the provider’s server and system environment. This also applies if the programs already available from the Customer have been obtained from ACAR. Other accompanying services of ACAR, including the introduction of the user and the like, are only the content of the Contract if this has been expressly agreed in writing.
Section 4 – Customer’s Obligations to Cooperate and Indemnification
- Indemnification: The Customer agrees to indemnify, defend, and hold harmless ACAR and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (the “Indemnified Parties”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, that are incurred by Indemnified Parties (collectively, “Losses”), arising out of or related to any claim of a third party alleging:
- Breach of the Customer’s representations, warranties, or obligations under this Contract; ii. Negligence or more culpable act or omission (including recklessness or willful misconduct) by the Customer or any third party on behalf of the Customer; iii. Any failure by the Customer to comply with any applicable laws, regulations, or codes in the performance of its obligations under this Contract.
- Procedure: i. Prompt Notice: The Indemnified Party shall give the Customer prompt written notice of any claim for which it seeks indemnification. Delay in notification shall not relieve the Customer of its obligations under this section except to the extent the Customer is prejudiced by such delay. ii. Control of Defense: The Customer shall have the right to assume the defense of any claim with counsel of its choice, provided that the Indemnified Party does not reasonably object to such counsel. The Indemnified Party may defend the claim at its own expense with counsel of its choice. iii. Settlement: The Customer shall not settle any claim without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed.
- Limitations: i. The total amount of indemnification under this Contract shall be capped at the total remuneration paid by the Customer to ACAR in the twelve (12) months preceding the claim. ii. The indemnification obligations shall not apply to Losses to the extent resulting from the Indemnified Party’s negligence or willful misconduct.
- Survival: The indemnification obligations outlined in this section shall survive the termination or expiration of this Contract for two (2) years.
Section 5 – Prices and Terms of Payment
- Service Fees: The fees for services ACAR provides are as detailed in the offer or order confirmation. These fees are fixed based on the scope of services outlined and are contingent upon the order data remaining unchanged from that which is specified in the offer.
- Invoicing and Payment Schedule: ACAR will issue invoices for services rendered. Payment of invoices is due within fourteen (14) days from the invoice date without any deductions. Payments are to be made via bank transfer to the designated ACAR account. The schedule for regular payments shall adhere to the agreed-upon intervals within this Contract.
- Discounts: Any discounts from the listed prices must be explicitly agreed upon in writing between ACAR and the Customer.
- Guarantee of Payment: ACAR’s services are chargeable, and the Customer must pay for the services even if not utilized as advised. Without a predetermined fee, charges will be based on ACAR’s standard price list at the time of service delivery.
- Reimbursement for Delivered Services: The Customer must reimburse for any services provided by ACAR following the terms outlined in this Contract. They are failing to calculate the cost based on their prevailing pricelist.
- Taxation: The stated fees are net amounts, exclusive of Value Added Tax (VAT) or sales tax. Where applicable, VAT or sales tax will be added to the invoice at the current rate. In cases where the reverse charge mechanism applies, the Customer is responsible for accounting for VAT as per the relevant tax regulations. All financial transactions under this Contract will be conducted in United States Dollars (USD).
Section 6 – Copyrights, Rights of Use, Subscription Rights, Retention of Title
- License to Use: ACAR hereby grants the Customer a non-exclusive, non-transferable, revocable license to use the Software and Services provided under this Contract strictly for the Customer’s internal business operations. This license is subject to the terms and conditions set forth herein and does not extend to other purposes without ACAR’s explicit written consent.
- Ownership of Intellectual Property: The Intellectual Property Rights in the Software and Services, including any modifications or enhancements thereof, shall remain vested in ACAR or its licensors. The Customer is prohibited from copying, modifying, distributing, sublicensing, reverse engineering, or creating derivative works from the Software or Services, except as explicitly authorized by this Contract or through prior written approval from ACAR.
- Copyright Protection: ACAR’s intellectual services, including but not limited to scripts, drafts, layouts, programs, and source code, are protected by copyright. ACAR grants the Customer an exclusive right to use these intellectual services, which is limited by time, space, and content as per the provisions of this Contract.
- Conditional Rights of Use: The rights of use granted to the Customer are conditional upon fully paying the agreed-upon fees. Until such payment is made in full, ACAR retains the title of the delivered goods and services.
- Retention of Original Materials: Original materials, such as illustrations, layouts, graphics, and photos, which are necessary to create the final product, shall remain the property of ACAR. The Customer is granted use rights as detailed herein but does not acquire ownership of these materials.
- Assurance Against Third-Party Claims: ACAR warrants that the rights granted to the Customer under this Contract do not violate or infringe upon the rights of any third parties and that ACAR has the authority to grant these rights.
Section 7 – Software Warranty
- Professional Service: ACAR warrants that the Software and Services will be provided professionally and in accordance with applicable industry standards.
- ‘As Is’ Provision: Apart from the express warranty, the Software and Services are provided “as is,” and ACAR disclaims all other warranties, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement.
- Limitation of Liability: ACAR’s total liability for any claim related to the Contract, whether in Contract, tort or otherwise, is limited to the amount paid by the Customer for the Software and Services during the twelve (12) month period immediately preceding the event that gave rise to the claim.
- Exclusion of Certain Damages: ACAR will not be liable for any indirect, incidental, consequential, or special damages, including but not limited to lost profits, data loss, or business interruption, even if they have been advised of the possibility of such damages.
- Performance Standard: ACAR is liable for adequately performing the services provided by a group of its members. However, ACAR notes that temporary and insignificant errors in software programs cannot be completely ruled out, given the current state of technical development.
- Accuracy of Information: ACAR is not liable for the accuracy of all text information, photos, and illustrations provided to ACAR and their use.
- Customer’s Duty to Inspect: Upon receipt, the Customer must immediately check that the services delivered conform to the Contract.
Section 8 – Limitation of Liability
ACAR provides the software solution to be used within the Client’s Microsoft 365 tenant environment. While ACAR ensures that the Software complies with applicable laws and industry standards, the Client acknowledges that compliance, governance, and security within the Microsoft 365 tenant are the Client’s responsibility in agreement with Microsoft’s policies and protections.
- Entire Liability: ACAR’s total liability is limited to intentional misconduct or gross negligence directly attributable to ACAR.
- Essential Obligations: Liability for breaching fundamental contractual obligations is limited to typical, foreseeable damages at the Contract’s inception, provided such breach is directly attributable to ACAR.
- Monetary Cap: Liability for damages is capped at the total remuneration paid under this Contract, reflecting the agreed-upon risk allocation.
- Exclusions: Limitations do not apply to damages from injury to life, body, or health, or in cases of a product quality guarantee, hidden defects, or under the Product Liability Act.
- Guarantees: Any guarantees must be explicitly confirmed in writing by ACAR.
- Advertising and Intellectual Property: ACAR is not liable for the Client’s advertising claims or for ensuring intellectual property protection of the Client’s ideas and concepts.
- Cybersecurity: ACAR is not responsible for damages from cyber attacks, unauthorized access, or security breaches within the Client’s Microsoft 365 tenant. The Client is responsible for maintaining their tenant’s security in line with Microsoft’s provided tools and services.
Section 9 – Confidentiality
Unless further confidentiality obligations have been agreed upon in individual contractual terms, both parties are obliged to maintain the confidentiality of all information on the business operations of the other, in particular internal affairs, trade secrets, and customers, which are to be regarded as requiring confidentiality when a reasonable commercial standard is applied. Insofar as they use third parties to perform the tasks, the parties must ensure that the third parties undertake to maintain confidentiality with equal care. The obligation of confidentiality also persists beyond the duration of the business relationship for a further [max. 5] years.
Section 10 – Dispute Resolution Process
- Good Faith Negotiations: In any dispute arising from or related to this Contract, the parties shall first seek to resolve the issue through mutual discussion and good faith negotiations within thirty (30) days of one party notifying the other party in writing of the dispute.
- Mediation and Alternative Dispute Resolution: If the dispute cannot be resolved through negotiations, the parties agree to engage in mediation or another form of ADR procedure to be mutually agreed upon before resorting to litigation.
- Litigation: Should the dispute not be resolved by mediation or ADR within sixty (60) days after initiating such Procedure, either party may seek legal recourse through the courts.
- Jurisdiction: The parties agree that any legal action or proceeding arising out of this Contract shall be brought in the courts of Switzerland, and by execution of this Contract, the parties hereby accept the exclusive jurisdiction of these courts.
- Continued Performance: The parties agree that during any dispute, including negotiation, mediation, or litigation, they will continue to perform their respective obligations under this Contract, provided that such continuation is feasible and does not prejudice their respective positions.
Section 11 – Force Majeure
- Definition: A “Force Majeure” event refers to any occurrence beyond the reasonable control of either party that prevents the party from fulfilling its obligations under this Contract. This includes, but is not limited to, acts of God, natural disasters, war, terrorism, civil disturbances, labor disputes, and significant interruptions in telecommunications or internet services.
- Effect of Force Majeure: Upon the occurrence of a Force Majeure event, the affected party shall be excused from any further performance of its obligations impacted by the Force Majeure event for the duration of such event.
- Notification: The party affected by a Force Majeure event shall notify the other party as soon as reasonably practicable, detailing the nature of the event, its anticipated duration, and any actions being taken to mitigate its effects.
- Mitigation and Continuation: Both parties shall use reasonable efforts to mitigate the effects of the Force Majeure event and to continue to perform their unaffected obligations under the Contract.
- Right to Terminate: If the Force Majeure event continues for a period exceeding sixty (60) days, either party may terminate the Contract upon providing written notice to the other party. Termination under this clause shall not affect either party’s accrued rights or liabilities nor the coming into or continuance in force of any provision of this Contract which is expressly or by implication intended to come into or continue in force on or after termination.
Section 12 – Severability
- Severability of Provisions: If any term, clause, or provision of this Contract is held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or operation of any other term, clause, or provision, and such invalid or unenforceable term, clause, or provision shall be deemed to be severed from the Contract.
- Continuation of Contract: The remaining provisions of this Contract will remain in full force and effect, and, to the extent possible, the severed provision shall be replaced with a valid provision that most closely reflects the intent of the parties as expressed in the original provision.
Section 13 – Governing Law and Jurisdiction
- Governing Law: This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed following the law of Switzerland.
- Jurisdiction: The parties irrevocably agree that the courts of Switzerland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). The parties expressly waive any right to object to proceedings in such courts on the grounds of venue or because the proceedings have been brought in an inconvenient forum.
Section 14 – Amendments, Modifications, and Waivers
- Entire Agreement: This Contract constitutes the complete and entire understanding and agreement between the parties regarding its subject matter and supersedes all prior discussions, agreements, and understandings of any kind (including, without limitation, any prior versions of this Contract).
- Amendments and Modifications: Any amendments, changes, or modifications to this Contract must be made in writing, signed by both parties, and expressly stating the intention to amend this Contract. Oral agreements or modifications shall not be considered valid or binding.
- Waivers: No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The written waiver by either party of a breach of any provision of this Contract must specify the waived provision and shall not be construed as a waiver of any subsequent breach of the same or any other provision.
Section 15 – Notices
All notices and other communications required or permitted under this Contract shall be in writing and shall be deemed given when delivered personally, sent by registered or certified mail (return receipt requested), or sent by Email (with confirmation of receipt) to the addresses specified by the parties in the Contract or to such other address as either party may designate in writing.
Section 16 – Assignment
Neither party may assign or transfer this Contract or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, ACAR may assign this Contract to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets, provided that the assignee agrees to assume all of ACAR’s obligations under this Contract. Any attempted assignment in violation of this section shall be null and void.
Section 17 – Relationship of the Parties
Nothing in this Contract shall be construed to create a partnership, joint venture, or agency relationship between the parties. Each party is an independent contractor and shall have no authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, except as expressly provided in this Contract.
Section 18 – Waiver
No failure or delay by either party in exercising any right, power, or remedy under this Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. Any waiver of any provision of this Contract must be in writing and signed by the party granting the waiver.
Section 19 – Counterparts
This Contract may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. Counterparts may be exchanged by facsimile or electronic transmission, and such traded counterparts shall be deemed as valid as if initially executed.
By agreeing to these Terms and Conditions, both parties acknowledge that they have read, understood, and agree to be bound by the provisions set forth herein. Each party warrants and represents that it has the full right, power, and authority to enter into and perform its obligations under this Contract and that its execution, delivery, and performance of this Contract does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound.
IN WITNESS WHEREOF, the parties have executed this Contract as of the date first written above.
ACAR Learning Technologies GmbH [Customer Name]
By: ______________________________ [Authorized Signatory Name and Title]
By: ______________________________ [Authorized Signatory Name and Title]
Section 20 – Headings and Interpretation
The headings used in this Contract are for convenience only and shall not affect the interpretation of the provisions. In this Contract, unless the context otherwise requires, words in the singular include the plural and vice versa, and words importing one gender include all genders. References to any statute, regulation, or law shall be construed as references to such statute, regulation, or ordinance as amended, modified, or reenacted occasionally.
Section 21 – Language
This Contract is written in English. In the event of any translation of this Contract into another language, the English version shall be controlled, and any ambiguities or discrepancies shall be resolved by reference to the English version.
Section 22 – Compliance with Applicable Laws and Regulations
- General Compliance: Each party agrees to conduct its duties under this Contract in strict compliance with all applicable local, state, national, and international laws, statutes, regulations, and ordinances.
- Data Protection and Privacy: The parties shall adhere to all relevant data protection and privacy laws and regulations, including but not limited to the General Data Protection Regulation (GDPR) for parties operating within the European Union, ensuring the protection and lawful processing of personal data.
- Export Controls: The parties shall comply with all applicable export control laws and regulations, ensuring that goods, services, technology, and Software covered by this Contract are not (i) exported, directly or indirectly, in violation of these laws or (ii) used for any purposes prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
- Industry-Specific Regulations: Each party shall comply with any and all industry-specific laws and regulations applicable to its business and the services or products provided under this Contract.
- Updates and Modifications: The parties acknowledge that applicable laws and regulations may change occasionally and agree to promptly implement any necessary modifications to their practices and procedures to maintain compliance.
- Indemnification for Non-Compliance: Each party shall indemnify, defend, and hold harmless the other party from and against any and all claims, damages, penalties, fines, costs, and expenses arising from the indemnifying party’s non-compliance with applicable laws and regulations.
Section 23 – Survival
Any provisions of this Contract which by their nature are intended to survive the termination or expiration of this Contract, including but not limited to Sections 6 (Intellectual Property Rights), 7 (Warranties, Limitations of Liability, and Indemnification), 11 (Data Protection and Privacy), and 12 (Governing Law and Dispute Resolution), shall continue in full force and effect following the termination or expiration of this Contract.
These Terms and Conditions and any amendments or modifications provide a comprehensive understanding of the parties’ rights and obligations concerning the Room Manager Software. By entering into this Contract, both parties agree to be bound by these provisions and acknowledge their understanding of the terms herein.
Section 24 – Entire Agreement
This Contract, including any schedules, exhibits, or other attachments incorporated by reference, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties relating to the same. No amendment, modification, or waiver of any provision of this Contract shall be effective unless in writing and signed by both parties.
Section 25 – Notices
All notices, requests, demands, and other communications required or permitted to be given under this Contract shall be in writing. They shall be deemed to have been duly given when delivered by hand, sent by Email, or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses set forth below or to such other address as either party may designate by notice to the other party:
If to ACAR:
ACAR Learning Technologies GmbH Althardstrasse 10 8105, Regensdorf, Switzerland Attention: Munur ACAR Email: [email protected]
If to Customer:
[Customer Name] Address] [City, Postal Code] [Country] Attention: [Contact Name] Email: [Contact Email]
Any notice given by Email shall be deemed to have been delivered when the sender receives confirmation of receipt from the recipient.
Section 26 – No Third-Party Beneficiaries
This Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or because of these Terms and Conditions.
Section 27 – Counterparts
This Contract may be executed in counterparts, each of which shall be deemed an original, but all shall constitute the same instrument. A signed copy of this Contract delivered by facsimile, Email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Contract.
Section 28 – No Waiver
No failure or delay by either party in exercising any right, power, or remedy under this Contract shall operate as a waiver of such right, power, or remedy, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Contract shall be effective unless it is in writing and signed by the party against whom such waiver is sought to be enforced.
Section 29 – Assignment
Neither party may assign or transfer any of its rights or obligations under this Contract without the prior written consent of the other party, except that either party may assign this Contract without such consent to a successor in interest (whether by merger, reorganization, or sale of substantially all assets) or to an affiliate, provided that the assignee agrees in writing to be bound by the terms and conditions of this Contract. Any attempted assignment or transfer violating this provision shall be null and void.
Section 30 – Relationship of the Parties
Nothing in this Contract shall be construed as creating a partnership, joint venture, agency, or employment relationship between the parties, nor shall either party have the authority to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent. Each party shall remain an independent contractor responsible for its actions and the actions of its personnel.
Section 31 – Non-Compete Agreement
- Non-Competition Commitment: ACAR shall notify the Customer of any potential competitive scenarios and, upon the Customer’s request, shall provide a written non-competition agreement specifying the products or services for which competition is excluded.
- Customer’s Restriction: The Customer covenants that, for the term of this Contract, it will not directly or indirectly engage, solicit, or enter into any business arrangement with any competing entity of ACAR in relation to the products or services that are the subject of this Contract.
- Scope of Non-Competition: The non-competition obligation applies to the geographical area and scope of services as described in this Contract and is limited to the duration of this Contract.
- Survival of Non-Compete: The obligations under this non-compete clause shall survive the termination or expiration of this Contract for a period to be mutually agreed upon by the parties, reflecting the nature of the services and market conditions.
Section 32 – Assignment/Set-off/right of retention
- The Customer can only assign claims against ACAR to third parties with the written consent of ACAR and transfer the legal status from contracts concluded with ACAR to third parties only with the written permission of
- The Customer may only offset against claims of ACAR with undisputed or legally established claims.
- Suppose the Customer is delayed with payment from a single contract concluded with ACAR. In that case, ACAR may refuse to perform due deliveries or services within the scope of the other business relationship with the Customer until the delay has been rectified.
- ACAR is entitled to a right of retention on all templates, photos, manuscripts, and other objects supplied by the Client until all claims arising from the business relationship have been fully fulfilled.
Section 33 – Data Protection and Privacy
- Data Processing and Compliance: ACAR commits to processing, storing, and protecting customer data by strictly following applicable data protection laws and regulations. ACAR acknowledges that the Customer’s data may reside within the Customer’s Microsoft 365 tenant. As such, ACAR will adhere to Microsoft’s security and privacy standards for data processors.
- Consent and Permissions: The Customer hereby consents to ACAR’s processing of its data as necessary to fulfill the obligations of this Contract. Additionally, the Customer shall be solely responsible for securing the requisite consents and permissions from its end-users for processing their data within the Microsoft 365 environment by ACAR.
- Technical and Organizational Measures: ACAR shall implement and maintain robust technical and organizational security measures to safeguard Customer data against unauthorized or unlawful processing, accidental loss, destruction, or damage. This includes adhering to the security controls and compliance frameworks the Microsoft 365 platform provides.
- Data Breach Notification: In the event of a data breach or security incident, ACAR shall promptly notify the Customer and cooperate fully to remediate the issue by the incident response procedures of the Microsoft 365 platform.
- Sub-Processors: ACAR shall not engage any sub-processors to process the Customer’s data without the Customer’s prior written consent and shall ensure that such sub-processors are bound by data protection obligations no less protective than those in this Contract.
- Audit Rights: The Customer retains the right to perform audits and inspections to verify ACAR’s compliance with data protection obligations, particularly those related to the data residing on the Microsoft 365 tenant.
Section 34 – Support and Maintenance Contract
- Mandatory Support and Maintenance Contract: It is mandatory for all Room Manager software clients to have a support and maintenance contract. This Contract is charged on a yearly recurrent basis.
- Renewal of License: Clients must renew their license and pay the relevant invoice to continue using the Room Manager software. Failure to pay the invoice when due will result in the Client losing the right to use the Software.
- Cancellation Policy: Clients may cancel the support and maintenance contract by providing written notice to ACAR at least two (2) months before the end of the contract term. Suppose the Client fails to provide the required notice within the specified timeframe. In that case, the Contract will be automatically renewed for an additional period, and the Client will be liable for the corresponding fees.
- Termination of Software Use: In the event of cancellation, the Client’s right to use the Room Manager software will cease upon the expiration of the then-current contract term. The Client is responsible for ensuring the proper termination of their access to and use of the Room Manager software on their Microsoft 365 tenant.
Section 35 Acceptance Testing
- Testing Procedure: The Client shall conduct Acceptance Testing of the software solution to ensure it operates by the specifications agreed upon in this Contract. The testing phase shall begin immediately following the deployment of the Software to the Client’s Microsoft 365 tenant.
- Testing Period: The Acceptance Testing period shall extend for  days from the date of deployment unless otherwise agreed upon in writing by both parties.
- Criteria for Acceptance: Acceptance of the Software shall be based on the following criteria:
- The Software must integrate seamlessly with the Client’s existing Microsoft 365 tenant without disrupting current operations.
- The Software must meet all functional requirements and use cases as agreed with the Client.
- The Software must comply with the performance and reliability standards agreed upon.
- Defects and Corrections: If, during the Acceptance Testing period, the Client identifies any defects that prevent the Software from operating as agreed, the Client shall notify ACAR in writing. ACAR shall use reasonable efforts to correct any such defects promptly. The Acceptance Testing period shall be extended by the time taken to correct such defects.
- Client’s Approval: Upon successful completion of Acceptance Testing, the Client shall provide a written statement of acceptance to ACAR. Failure to provide such a statement within  business days of the conclusion of the Acceptance Testing period shall be deemed acceptance of the Software.
- Rejection: If the Client reasonably determines that the Software has failed Acceptance Testing, the Client may either:
- Provide ACAR with a written notice of rejection, detailing the reasons for rejection and providing ACAR with an opportunity to make necessary corrections; or
- Terminate the Contract by the termination provisions outlined in Section [Y], subject to any rights and remedies available under this Contract.
- Post-Acceptance Modifications: Any changes to the Software following acceptance shall be managed through the change control procedure outlined in Section .
Section 36 Change Requests
- Request for Changes: The Client may occasionally request changes to the specifications of the services or deliverables provided under this Contract. Such requests shall be submitted in writing to ACAR and shall describe the proposed changes in sufficient detail.
- Evaluation and Proposal: Upon receiving a change request, ACAR shall evaluate the impact of the requested change on the scope, schedule, and cost of the services. ACAR will then provide the Client with a proposal that includes any adjustments to the services, deliverables, timelines, and payment terms.
- Approval Process: The Client shall review the proposal and, if acceptable, approve the change request in writing. No change shall be implemented without such written approval from the Client.
- Payment Terms: ACAR will issue an invoice upon approval of the change request. Work on the change request will commence only after the Client has made the required upfront payment.
- Adjustment of Contract Terms: Any changes to the services or deliverables agreed upon through the change request process shall result in a corresponding adjustment to the Contract terms, including but not limited to the delivery schedule and payment schedule.
- Documentation: All approved change requests and adjustments to the Contract shall be documented in writing and signed by both parties.
Section 37 Third-Party Plugins and Web Parts
- Inclusion of Third-Party Components: The Room Manager solution may incorporate various third-party plugins and web parts that enhance or are necessary for its optimal functionality. The identification and selection of these components will be based on the specific needs of the Customer’s deployment of the Room Manager solution.
- Customer’s Obligation to Purchase: The Customer acknowledges that the acquisition of licenses for any third-party plugins or web parts is the Customer’s sole responsibility. The Customer agrees to directly purchase or obtain the necessary licenses for such third-party components as may be required for the full functionality of the Room Manager solution.
- Support and Maintenance: The Customer understands that ACAR is not responsible for supporting or maintaining third-party plugins or web parts. The Customer shall seek support directly from the third-party vendors as per the terms and conditions provided by such vendors.
- Liability: ACAR shall not be liable for any direct or indirect damages or issues arising from the use of third-party plugins or web parts within the Room Manager solution. The Customer agrees to indemnify and hold harmless ACAR from any claims, damages, liabilities, costs, and fees (including reasonable attorneys’ fees) arising from the use of third-party components.
- Integration: While ACAR may assist in the integration of third-party plugins and web parts into the Room Manager solution, it does not guarantee their performance or compatibility. The Customer acknowledges that any such integration may be subject to additional fees and terms as agreed upon by both parties.
- Updates and Compatibility: The Customer is responsible for ensuring that third-party plugins and web parts remain compatible with the Room Manager solution, including after updates to either the Room Manager solution or the third-party components. ACAR shall not be responsible for any loss of functionality or performance issues resulting from updates to third-party components.
Section 38 – Final Provisions
- Modification and Waiver: Any modification, waiver, or additional agreement related to this Contract shall be effective only if it is in writing and signed by both parties. This requirement also applies to any waiver of this clause itself.
- Governing Law: This Contract and any disputes arising from it shall be governed by and construed in accordance with the laws of Switzerland, without giving effect to any choice or conflict of law provision or rule.
- Jurisdiction: The parties agree that any legal suit, action, or proceeding arising out of, or related to this Contract shall be instituted exclusively in the courts of Switzerland. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Severability: Should any provision of this Contract be deemed invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving the parties’ original intent as closely as possible. If such modification is not possible, the provision shall be severed from this Contract, and the remaining provisions shall remain in full force and effect.
Last Update: (Date) November 2023
ACAR Learning Technologies GmbH