1. Field of application
The subject of these terms is the use of the RaiseNow AG IT- and online fundraising infrastructure as Software-as-Service (hereafter SaaS). For the duration of this contract, RaiseNow shall provide the client with the SaaS products, in the latest version available. The use of these products is subject to a defined fee.
The contract relationship between RaiseNow and the client comes into effect with the signing of the appropriate individual contract. With the signing of the individual contract the client expressly acknowledges these GTC. In the case of inconsistencies between the individual contract and the GTC, the individual contract prevails.
Any possible general terms and conditions of business or, as the case may be, conditions of purchase of the client are hereby excluded expressly, unless they are acknowledged explicitly and in writing by RaiseNow.
2. Responsibilities and deliverables of RaiseNow
RaiseNow is responsible for the agreed contractual services and the separately agreed Service Level Agreement, or rather, the Service Level Agreement in accordance with section 5. These comprise the reliable and secure operation of the technical infrastructure, installation and maintenance of the software, running a back-up system, as well as the necessary measures for the maintenance of operational efficiency. RaiseNow places the SaaS products ordered for the intended use at the disposal of the client and grants him the non-exclusive and non-transferable right to use them during the contract period.
3. Responsibilities of the client
Except for the RaiseNow SaaS-products, the client remains comprehensively responsible (hardware, software, business, security) for the operation, the security and the condition of his website and all further electronic/digital media on which RaiseNow SaaS is deployed. The client bears all costs arising in connection with the observation of his responsibilities.
4. System availability
The RaiseNow deliverables are rendered according to the principle of “best effort”. RaiseNow takes the appropriate measures to ensure if at all possible that the SaaS-products can be used without interruption. The client is, however, aware that the SaaS services and further components of third parties, the proper functioning of which can not be influenced by RaiseNow, form a technically complex system, for which reason RaiseNow cannot provide a guarantee for the continuous and complete availability of these components. Disruptions on account of system maintenance, updates etc. will be announced in advance in accordance with section 15 (Notifications); for schedulable operations, a notice period of 2 days is complied with. Urgent and immediately necessary operations which trigger a disruption in the availability can be carried out without prior notification for quick problem solving or prevention of potential hazards (e.g. virus attack).
4.1 Threatened data security
If RaiseNow detects a threat to the proper operation on account of negligent or malicious activities of external originators (DOS attacks, virus attacks et al), RaiseNow is entitled to immediately undertake all steps necessary to protect their own infrastructure and software against damage.
The RaiseNow Support is available for clients from Mondays to Friday from 09:00 until 17:00 (CET) by telephone or by e-mail at email@example.com. For support outside of these hours individual contract rates (Service Level Agreements) can be agreed upon.
The remuneration amount for the contracted services is detailed in the respective price lists. As a rule, remuneration consists of one-time charges, transaction fees and recurring fees. Recurring and transaction fees are usually billed periodically in advance; one-time charges are billed after deployment. Recurring fees can be adjusted upon advance notification. They are payable within 20 days. Any additionally agreed services are billed separately.
7. Intellectual Property Rights
The client acknowledges the Intellectual Property Rights, especially the Copyrights of RaiseNow on programmes and documentation. The client is not entitled to place this software at the disposal for use or, as the case may be, for subletting to third parties, neither for valuable consideration nor free of charge, and/or to use it outside of the framework of the contract relationship with RaiseNow or to contest RaiseNow in any way.
The parties mutually commit themselves to retain all confidential information of the other party as secret. RaiseNow is entitled to involve vicarious agents and subcontractors, but does however have to impose upon them the obligation to observe confidentiality. RaiseNow commits itself to treat all submitted data confidentially towards third parties and to
observe the provisions of data protection laws in force from time to time. In this matter, service providers nominated by the client are not regarded as third parties.
9. Protection and security of data
RaiseNow will handle the client’s data with the utmost care and protect the data from malpractice and loss. To this end, RaiseNow adopts technical and organisational measures which correspond at least to the General Data Protection Regulation (GDPR). The data is stored in Europe; as a rule, in Switzerland, the UK or Germany. Special agreements regarding the location of
server locations can be made within the frame of technical possibilities.
9.1. Data transfer
The client is responsible for the legitimacy of the transfer of data and, as the case may be, its use. All data of the client stored or processed by RaiseNow is the sole property of the client and is used by RaiseNow exclusively for purposes of fulfilling the contract.
9.2. Anonymous analysis
Inasmuch as it is legally admissible, the client permits RaiseNow to use for anonymous analysis the data stored for the client with RaiseNow; for instance for statistical purposes, as well as to exploit the analysis.
RaiseNow guarantees that the services provided are rendered technically correct.
As the settlement of online payments entails a high complexity and takes place under participation of numerous parties, it is agreed expressly that RaiseNow can only by held liable for such circumstances which lie within the sphere of influence of RaiseNow, thus especially those originating in that part of the infrastructure which is run and controlled by RaiseNow. In the case of upstream or downstream causes no liability exists for RaiseNow, even if these causes arise from services by RaiseNow which were not in accordance with the contract. In particular, RaiseNow is not liable for damages resulting from (connection) faults, the cause of which lies beyond the field of influence of RaiseNow (e.g. errors on the part of the acquiring partner, the internet connection, etc.). Other than that, the liability is limited to gross negligence and intent. RaiseNow expressly excludes any liability for indirect or so-called secondary failures. No party is liable for the non-performance or delayed fulfilment of its obligations if this can be ascribed to force majeure, including strikes. In such a case, the affected party will inform the other immediately about the occurring force majeure.
12. Contractual period and notice
As a rule, the contract is concluded for an indefinite period and comes into effect on the agreed date. A contract can be concluded for a limited time. If the agreement was not expressly made for a limited time, the contract can be cancelled by written notice in accordance with the conditions of the respective SaaS product. The right to terminate the contractual relationship for cause without respecting a termination period remains reserved especially for but not limited to the following reasons:
goes bankrupt or application for bankruptcy proceedings was declined for lack of assets
is in arrears with payment obligations under this contract, and upon setting of a deadline and threat of annulment of the contract was cautioned without effect
while employing the contracted services infringed culpably on legal provisions or copyrights, industrial property rights or name rights of third parties
uses the marketed services for purposes of promoting criminal, illegal and ethically dubious activities.
13. Amendments to contract
If an extension (quantitative or qualitative) of the contractually arranged services within the scope of the currently available SaaS-products is required, this will be effectuated by RaiseNow within an agreed period and charged to the client in accordance with the adjusted conditions from the date of implementing the required amendments and services. All required adjustments must be made by the client in writing, whereby it is the client’s responsibility to ensure that the communication transfer is successful. If adaptations (quantitative or qualitative) of the currently available SaaS-products are required, which result in a reduction of the contractually arranged services they will become effective only at the end of the following month and can possibly only be received after an according minimum time period has mutually been agreed upon.
RaiseNow is entitled to name the client as reference and to use general aspects of the agreed contract in an appropriate way for purposes of marketing and distribution.
Insofar as in this contract or by law a more rigorous form is not statutorily provided for, all messages/notifications are to be delivered in writing to the agreed e-mail addresses. The contracting parties are obliged to notify the other party immediately of any changes concerning the contact person or address, failing which notifications sent to the latest address given in writing will be regarded legally as having been delivered effectively.
16. Final provisions
All provisions of the contract which by their nature extend beyond its termination, remain in force until they are complied with, including the provisions concerning confidentiality, the applicable law, remuneration, the intellectual property rights, liability as well as warranty.
16.1 Contract amendments
Amendments or addenda to the contract need to be put in writing to be valid.
16.2. Contract transfer
The contract or individual derivative rights thereof may only be transferred to third parties after prior written consent of the other party.
16.3. Salvatory clause
Should any provision of this contract prove to be invalid or unenforceable, the validity of the remaining provisions of this contract shall thereby not be affected. The parties have to replace the ineffective or impracticable provision with another which corresponds to the same economic results.
16.4. Amicable settlement
In the event of disputes, the parties will resort to litigation only after seeking an amicable settlement, ultimately at management level. Should such a settlement not be possible in the view of one party, litigation can be resorted to.
16.5. Place of jurisdiction
The contract is subject to Swiss Law under exclusion of the Agreement of the United Nations concerning the international sale of goods. Place of jurisdiction is the registered office of RaiseNow AG.
Zurich, in February 2017 (replaces all previous versions)