SaaS Agreement

1. Definitions

1.1 Whenever used in this Agreement with an initial capital letter, the terms quoted and defined in this Section 1, whether used in singular or the plural, shall have the meanings specified below.

“Agreement” means this document, including any Annex, the Terms of Use and the Privacy Policy available online at http://www.wy.by.

“Annex”means any additional document appended to, and thereby explicitly forming an integral part of, the Agreement, e.g. pricing or additional development services.

“Effective Date” has the meaning stipulated in section 7.1 below.

“Lease Object” means the products and services displayed, offered for lease and leased (as the case may be) by Customer via the Platform.

„License Fee“ means a one-time fee, recurring fee or use-based fee charged by wy.by for the use of the Platform.

„Licensed Material“ means the Platform and any documentation thereto.

“Platform”means the Software, website, mobile applications, and any other products and services provided to Customer online by wy.by on its online portal http://www.wy.by for the leasing of Lease Objects.

“Services” has the meaning stipulated in section 2.1 below.

“Software” means the computer program in object code, including any changes or enhancements thereto, as provided by wy.by.

2. Scope

2.1 wy.by provides services in marketing and e-commerce, and provides an online portal for the leasing of Lease Objects. The scope of this Agreement is the remote (i.e. Internet) access and use by Customer of the Platform, which is operated on the servers of wy.by, for the displaying, offering for lease and leasing of Customer’s Lease Objects.

2.2 The Platform enables the display of Customer’s Lease Objects on Customer’s website and facilitates the conclusion of a lease agreement between Customer as lessor and its customers as lessees. wy.by is not a party to such lease agreement (art. 253 et seq. Swiss Code of Obligations).

3. Structure and Precedence

3.1 This Agreement consists of the following documents, which in case of a conflict between them shall prevail in the following order of precedence:

(i) any Annex;

(ii) this document;

(iii) wy.by Terms of Use (http://www.wy.by/termsofuse); and

(iv) wy.by’s Privacy Policy (http://www.wy.by/privacypolicy).

3.2 Customer confirms having read such Terms of Use and Privacy Policy from wy.by’s website and agrees to them.

3.3 Any general terms and conditions of Customer are explicitly excluded for this Agreement. However, the Customer’s lease conditions or other general terms apply to the Customer’s lease agreement with its customer (lessee).

4. Provision

4.1 The Platform is provided on the servers of wy.by by remote access, i.e. the Internet, to Customer.

4.2 The contractual services are delivered from wy.by to Customer at the outgoing router interface of wy.by’s data centre. Customer’s access to the Internet, network connection as well as provision and maintenance of the necessary hardware and software is not subject of this Agreement.

4.3 Upon online registration by Customer wy.by shall provide Customer the necessary login credentials for the remote access to the Platform.

4.4 As at conclusion of this Agreement, wy.by is granting access to the Platform Version 3.0. Unless stipulated otherwise in this Agreement, wy.by shall provide the Platform in its latest version which is released by wy.by to its customer base. Partial delivery of the Platform is permissible.

5. Support

5.1 wy.by provides technical e-mail support regarding the Platform to Customer. Technical issues shall be reported at support@wy.by.

5.2 Technical support will only be provided for bugs or errors in the Platform that are documented by Customer and reproducible by wy.by. Customer agrees to provide wy.by with full and accurate details of all bugs and errors in the Platform requested by wy.by.

5.3 Support is provided during working hours and without service levels. wy.by does not represent that it will correct all or any bugs or errors in the Platform.

6. Ownership and License

6.1 wy.by, and its licensors respectively, shall retain ownership and own the Licensed Material. The intellectual property rights pertaining to the Licensed Material shall vest in wy.by and its licensors respectively, shall own all rights in developments, translations, changes and updates/-grades of the Licensed Material and any copies made thereof as well as the rights of any decompilation of the Platform and copies thereof.

6.2 wy.by grants Customer a non-exclusive, non-transferable, temporary, royalty-bearing and revocable license to use the Licensed Material on the servers of wy.by for displaying, offering for lease and leasing of Lease Objects. Customer may customize the graphical user interface of the Platform to the Customer’s corporate identity: adapt the colours, change the background image and include Customer’s logo and/or trademark.

6.3 The license granted to Customer in Section 6.2 is limited to the use of the Licensed Material within Customer’s organisation. This license shall not include the right to sub-license, sell, lease or transfer the Platform, in parts or in whole, to any third party.

6.4 The license granted to Customer is limited to the use of the Licensed Material. Customer shall only use components and functional blocks of the Platform, even if Customer can technically access other (protected or non-protected) Software which are not part of the Platform.

6.5 The license granted under this Agreement includes the license to display “powered by wy.by” [figurative] on the Customer’s website. However, this license shall not include right to use other trademarks, company names, or other designations of wy.by for advertising purposes or for other publications. Customer shall not, in part or in whole, remove, alter, conceal or hide any intellectual property endorsements, such as, for instance, notices of trademarks, copyrights, patent rights, design rights and other proprietary notices of the Licensed Material, nor allow any such removal, alteration, concealing or hiding.

6.6 Customer shall not, in part or in whole, copy, translate, disassemble, derive the source code from the object code, for example, by decompiling or reverse engineering the Platform.

6.7 If required for the fulfilment of this Agreement, Customer grants wy.by a non-exclusive, temporary for the duration of this Agreement, transferable, unlimited, worldwide and royalty-free license for any copyrightable material, trademarks and data uploaded to the Platform. This license includes the right to use, execute, display, reproduce, perform, disclose, create derivative works as necessary to fit the Platform, translate and back-up such copyrightable material, trademarks and data; such license to include the right of wy.by correspondingly to sublicense its subcontractors to do any and all of the foregoing.

7. Term and Termination

7.1 This Agreement begins on the day Customer agrees to the terms herein by online consent, i.e. by clicking the “OK” or “Accept” button during the registration process for remote access to the Platform.

7.2 After the first three (3) months Customer may terminate this Agreement any time in writing by the end of a month.

7.3 wy.by may terminate this Agreement any time

(i) for cause with a two (2) month notice period and revoke the licenses granted in this Agreement, if Customer materially breaches this Agreement. A breach of the terms in Section 6 or a payment default of more than sixty (60) days is deemed to be a material breach; and

(ii) for convenience with a six (6) month notice period.

7.4 Upon receipt or submission of the termination notice by wy.by, the booking function on the Platform will be immediately suspended.

7.5 Upon termination of this Agreement, Customer’s remote access right to the servers of wy.by and Customer’s right the use of the Licensed Material shall ceases immediately. Customer shall entirely and irrevocably delete the documentation and any copies thereof, in part or in whole, as well as all login credentials for the remote access to the Platform. Customer shall inform wy.by unsolicited about such deletion. If Customer does not comply with this deletion obligation or if Customer accesses the servers of wy.by and/or uses the Licensed Materials after termination of the Agreement, then wy.by shall be entitled to continue invoicing any recurring fees. The right of retention according to article 895 of the Swiss Civil Code is excluded.

8. Remuneration

8.1 In the first month after the Effective Date the Services are free of charge.

8.2 Thereafter, the Customer commits himself to pay the License Fees on time according to the price list on our website which is an integral part of this SaaS agreement. The royalty refers to the lease price of each Lease Object leased via the Platform by Customer to its lessees as well as any lease supplements, such as, for instance, Lease Object accessories and lease period extensions.

8.3 The License Fees are due upon booking of the Lease Object on the Platform. However, wy.by will only invoice the License Fee at the end of the month in which Customer’s lessee begins the lease of the Lease Object. Any changes to the Lease Object, including lease supplements and lease period extensions (or reductions as the case may be) made at the beginning of, or during, the lease will be invoiced (or credited as the case may be) at the end of the month in which the Lease Object was returned.

8.4 Upon termination of the Agreement the License Fees for all bookings up to the suspension of the booking function shall be immediately due by Customer to wy.by. wy.by shall submit a final invoice to Customer.

8.5 There shall be no refund for one-time License Fees.

8.6 Invoices are payable net within thirty (30) days from the date of the invoice.

8.7 Unless stipulated otherwise in the Agreement, all amounts exclude the applicable VAT. VAT shall be added to the invoice by wy.by and is due by Customer.

8.8 Invoices not disputed by Customer within the payment period shall be deemed accepted. Recurring License Fees without monthly invoices shall be deemed accepted if the fees have not been disputed by Customer by the last day prior to the recurring license period. Customer shall be liable for any interest on overdue payments under this Agreement commencing on the date such payment becomes due. The annual interest rate shall be five per cent (5%) per year. wy.by may invoice reminder charges.

9. Customer’s Obligations

9.1 Customer shall be responsible and accountable for the selection, provision, installation, implementation, system requirements, use and maintenance of the necessary hardware, software and network services for (i) the remote access up to the router interface of wy.by’s data centre, and (ii) the use of the Licensed Material.

9.2 Customer shall be responsible for the accurate provisioning of the necessary information on the Platform regarding the Lease Object, the lease conditions and lease agreement. Customer shall make backup copies of any data or other content and/or information prior to uploading it to the Platform.

9.3 Customer shall undertake to promote the Platform by displaying “powered by wy.by” [figurative] on the Customer’s website.

9.4 Customer shall protect its and its own users’ respectively, login, identification and authentication credentials for the remote access to the servers of wy.by from access by unauthorized third parties and shall not disclose any such credentials to any unauthorised third parties. Customer shall inform wy.by immediately if there are indications that an unauthorised third party has obtained access to the login, identification or authentication credentials, or if such credentials could be misused.

9.5 Customer represents obtaining the necessary consent from any person whose personal data (according to the Swiss Federal Act on Data Protection) is being processed. Such consent shall include disclosure by using the Platform. Such consent shall include the right of wy.by to transmit such personal data abroad.

9.6 Customer shall not, nor allow others to, misuse the Platform. In particular, Customer shall not transmit, or allow others to transmit, any data or other content and/or information, which is illegal or which infringes copyrights and/or other intellectual property rights of third parties, to the servers of wy.by. Customer shall remain responsible for its own, and for its users’ respectively, data or other content and/or information. Customer shall not offer any Lease Objects for lease via the Platform for which it does not have the necessary lease rights.

9.7 Customer shall refrain from retrieving information or data by unauthorized access or by access of an unauthorized third party. Customer shall also refrain from accessing the Platform or from penetrating data networks without authorisation of wy.by.

9.8 Prior to any remote access or transfer of data, content and/or information by Customer, and/or by users of Customer, Customer represents that all such data, content and/or information has been scanned with state-of-the-art anti-virus programs.

9.9 If the data, content and/or information transferred by Customer infringe third party rights, then wy.by may disable such data, content and/or information in parts or in whole. In such event Customer shall either provide or acquire the necessary rights to access such data, content and/or information. If Customer does not comply with this request, wy.by shall be entitled to terminate the Agreement for cause without notice. Right to claim damages remains reserved.

10. Disclaimer of Representation and Warranty of Goods and Services

10.1 - The Platform is provided “as is” and “as available” and without any representation and/or warranty of any kind, express or implied, including but not limited to, the implied warranties of merchantability, non-infringement and fitness for a particular purpose, all of which are expressly disclaimed.

10.2 wy.by does not represent or warrant that the Platform will be available at all times, error-free, secure, or free of viruses or other harmful components. Customer’s use of the Platform is solely at his/her own risk.

10.3 Customer acknowledges and agrees that after termination of this Agreement any remote access to the servers of wy.by shall cease and any data or other content and/or information will be deleted from the Platform and from wy.by’s servers.

11. Disclaimer of Representation and Warranty of Title

11.1 To the best of its knowledge, wy.by represent that Licenced Material does not infringe the rights of any third party.

11.2 In the event of a third party patent or copyright infringement claim against the Licensed Material, wy.by shall defend Customer against such claim at its expense and pay all costs, damages, and attorney’s fees up to an amount that a court finally awards or that are included in a settlement approved by wy.by, provided that Customer:

(i) promptly notifies wy.by in writing by registered mail of the claim; and

(ii) allows wy.by to control, and cooperates with wy.by in, the defence and any related settlement negotiations.

11.3 If such a third party claim is made, or appears likely to be made, Customer agrees to permit wy.by to enable Customer to continue to use the Licenced Material or to modify it or to replace it with Licenced Material that is at least functionally equivalent. If wy.by determines that none of these alternatives is reasonably available, Customer agrees to return the Licenced Material to wy.by upon written request. wy.by shall then issue Customer a credit equal to the amount paid by Customer for the Licenced Material.

This remedy is wy.by’s entire obligation to Customer regarding any infringement claim.

11.4 Any modification of the Platform by Customer other than by the functions foreseen for the provisioning of information for display, offer and lease of the Lease Object shall void the infringement claim against wy.by.

12. Limitation of Liability

12.1 To the fullest extent permitted by law, wy.by explicitly excludes any and all liability for damages or warranty arising under this Agreement.

12.2 The limit in Section 12.1 also applies to any of wy.by’s subcontractors.

12.3 Except as expressly required by law without the possibility of contractual waiver, under no circumstances is wy.by or its subcontractors liable for any of the following even if informed of their possibility:

(i) loss of, or damage to, data;

(ii) special, incidental, exemplary, indirect, or consequential damages; or

(iii) lost profits, business, revenue, goodwill, or anticipated savings.

13. Indemnification

13.1 Customer represents that it has the necessary rights and required consents to provision the information of the Lease Object on the Platform and to lease such the Lease Object.

13.2 Customer shall defend, indemnify and hold harmless wy.by and any of its affiliates, including any of their directors, employees agents and/or subcontractors against any third party claims, losses, liabilities and expenses (including legal expenses) resulting from Customer’s

(i) infringement of intellectual property rights by provisioning copyrightable materials of the Lease Object on the Platform; and/or

(ii) lease of the Lease Object through the Platform.

14. General Provisions

14.1 All notices for default under, or termination of, this Agreement shall be sent in writing by postal mail or e-mail to the registered seat of the Parties.

14.2 Each Party is an independent contractor and shall independently establish prices and terms for its services and/or products. Neither Party is, nor will claim to be, a legal representative of the other Party. This Agreement does not create a joint venture, employment relationship or agency relationship between the Parties.

14.3 Customer agrees that Contact Information may be disclosed to, and processed and used by, wy.by and its affiliates and their subcontractors and business partners in the pursuit of the business relationship, including the marketing of products and services, between the Parties. Customer consents to wy.by transferring the Contact Information outside of Switzerland and of the European Economic Area.

14.4 wy.by may reference Customer as its customer for its own marketing and public relations purposes. Customer herewith grants wy.by a non-exclusive, royalty-free, and worldwide right to use Customer’s trademark for such purposes. This license shall survive the term of this Agreement and is granted until revoked in writing by Customer.

14.5 Except as expressly provided in this Agreement, neither Party grants the other Party, whether directly or by implication or otherwise, any patent, copyright, trademark, trade secret, know-how, or other intellectual property right. No Party shall remove or alter any symbols or legends indicating any intellectual property right.

14.6 Customer may not assign, or otherwise transfer, its rights or delegate its obligations under this Agreement without the prior written consent of wy.by. Any attempt to do so shall be void.

14.7 Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to a force majeure event, such as without limitation, acts of God, fire, flood, natural catastrophe, power surges, acts of any government or of any civil or military authority, national emergencies, riots, vandalism, terrorism, war, insurrection, strikes, or any occurrence beyond the reasonable control of such Party.

14.8 To the extent permitted by applicable law, except for claims arising out of Sections 6, 8, 9 and/or 13, neither Party may bring an action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has accrued.

14.9 Any rights and obligations, which by their nature survive and continue after the expiration or termination of this Agreement, shall survive and continue, and shall bind the Parties and their successors and assigns, until such obligations are fulfilled.

14.10 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired as long as the intent of the parties can be preserved. In such cases, both Parties undertake to replace the invalid, illegal or unenforceable provision with another valid, legal and enforceable regulation. The same principle applies to open terms or omissions.

14.11 This Agreement is governed by Swiss law, without regard to the conflict of laws provisions. The United Nations’ Convention on International Sales of Goods of 11 April 1980 (SR 0.221.211.1) does not apply.

14.12 Disputes arising under, or in connection with, this Agreement shall be exclusively subject to the jurisdiction of the competent court at the registered seat of wy.by ltd.

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