1. subject of the contract

1.1 Subject of License / Rights of Use

The Licensor grants the Licensee the right to use the AssessmentGate Tools (ASGT) for personal use. This includes the entire analysis methodology and the corresponding IT platform with its tools. The results of these analyses are presented in the form of profiles, clear graphics and short, concise reports. They are used in the areas of personnel selection, potential analyses, management trainee planning, coaching, leadership development and team building processes.

The right of use is limited to the licensee’s internal application. ASGT may only be used in connection with persons already employed by the licensee or applying for employment with the licensee. The right of use is limited to the duration of the present agreement.

1.2 Survey / evaluation of the analyses

The collection and evaluation of the analyses may only be carried out by the Licensee’s managers and directors.

2. scope of the right of use

2.1 Intended use

“Intended use” in the sense of this contract is

• loading, storing, transferring, transforming, running and reproducing, in whole or in part, the data collected by ASGT in a machine-readable form on the designated computer system for the purpose of executing the program instructions for processing the Customer’s data
• The customer’s right of use is limited to his internal needs and does not give him the right to grant sublicenses

2.2 Changes and parameterization

Customer shall not be entitled to adapt the Licensed Material to its special needs or to combine it with interoperable programs at its own risk. Any modification constitutes an encroachment on the licensor’s property rights and requires prior written agreement.

3. delivery, installation and acceptance of the license material

3.1 Delivery, transfer of benefit and risk

Unless otherwise agreed, the Licensed Material shall be released in its latest valid version required by the Licensor for use.

The licensed material always remains the property of the licenser. The licensor is entitled to all intellectual property rights.

3.2 Acceptance of the Licensed Material

The Licensed Material shall be deemed to have been accepted as soon as the Customer commences productive use of the program.

4. remuneration / terms of payment

4.1 License fee

The license fee is calculated per employee per month. If the licensee employs more than 1000 employees, the monthly license fee per employee is reduced. The prices do not include value added tax. Any price changes are based on the current price lists, which will be communicated to the licensee with the invoice for the coming period.

4.2 Default of payment

The Licensor shall be entitled to charge default interest of 5 % p.a. on all outstanding payments after expiry of the payment period without reminder.

5. rights to the license material / protection of the license material

5.1 Property and industrial property rights

Assessment Gate AG is the sole owner of all copyrights. The licensor guarantees the licensee that no third party can assert copyrights against the licensee. All rights in connection with the analyses and related documents such as manuals, training materials and instructions remain the sole property of Assessment Gate AG. They may not be copied, transferred to third parties or used for third parties.

Assessment Gate AG reserves the right to modify or supplement

the analyses and the associated IT platform at any time in order to ensure the optimum use of the web-based analyses. This ensures ongoing adaptation to the changed requirements. The licensee will not incur any additional costs.

5.2 Confidentiality of the Licensed Material

The Licensed Material contains information, ideas, concepts and procedures, in particular regarding the processing of data for specific applications, which constitute business and trade secrets of Licensor.

The Customer undertakes to treat the Licensed Material with the same care and confidentiality as its own business and trade secrets, to use it only for the intended use described in this Agreement and, subject to prior written authorization by the Licensor, not to make it available to third parties in any form, either in whole or in part, nor to publish it.

Customer shall ensure, through appropriate instructions, agreements and other appropriate arrangements, that all persons having access to the Licensed Material comply with these obligations.

5.3 Control and backup of the Licensed Material

The customer shall take the necessary organizational and technical measures in his company to protect the license material from unintentional disclosure, access, theft or misuse by unauthorized persons. In particular, he shall delete all parts of the Licensed Material stored on IT systems or storage media before passing them on.

5.4 Violations / Contractual penalty

Should the customer, its employees or auxiliary persons intentionally or grossly negligently violate the provisions of this Agreement regarding the use and protection of the Licensed Material, the customer shall owe the Licensor three times the amount of the full license fee owed for the intended use of the Licensed Material during one year (without discounts or graduated rates) for each case of violation as compensation. The right to assert further damages shall remain reserved.

Payment of this contractual penalty does not release the customer from his contractual obligations. In particular, the Licensor shall be entitled to demand at any time the removal of the unlawful condition or the breach of contract or to dissolve the contract.

5.5 Protection of industrial property rights

The customer acknowledges the industrial property rights, in particular the copyright of the licensor or the holder of the rights to the licence material, and refrains from any attack on the existence and scope of these rights for the duration of the licence granted to him. In accordance with the licensor’s instructions, the customer shall take all measures to protect the rights of the licensor or the holder of the rights to the license material and shall support the licensor to an appropriate extent in defending the property rights (Section 7.2). In particular, the customer shall affix the licensor’s property right notice in full or in part to all records, documents or homepages etc. in accordance with the licensor’s instructions.

5.6 Data

The licensee is both responsible for the data he enters and for compliance with the legal and internal data protection requirements. Upon termination of the license agreement or after the end of the archiving period, personal data will be destroyed.

The collected data will be processed in an anonymous form, for statistical purposes only (standard calculations). The Licensor guarantees that these data contain only statistical values and no names or personal details about the persons collected.

The latest version of the “Assessment Gate AG Privacy Policy” forms an integral part of this contract.

6. warranty

6.1 Guarantee for program functions

The customer bears the risk associated with the use of the software. The licensor is generally liable for the contractual functionality of the license material.

A program error subject to warranty exists if the application of the license material deviates so far from the intended use that its suitability for use is completely eliminated or considerably reduced. Only significant program errors constitute defects subject to warranty.

6.2 Correction of Program Errors (Obligation to check and complain, warranty period and right to rectification)

With the productive use of the ASGT, the software shall be deemed accepted by the customer. From that moment on, the ASGT shall be deemed to be approved by the customer, subject to any hidden or intentionally concealed defects.

Art. 210 para. 1 OR as well as Art. 371 para. 1 OR shall not apply.

If, in the Customer’s opinion, there is a suspicion of the presence of so-called “program viruses”, the Licensor shall support the Customer in clarifying the matter.

Customer shall support Licensor in the analysis of the causes and conditions of the program error as well as in the development and testing of the correction code or a workaround solution to an appropriate and reasonable extent.

6.3 Limitation of warranty

The Licensor cannot guarantee that computer programs can be used without interruption and without error in all combinations desired by the Customer with any data, computer systems and other programs, nor that the correction of a program error will prevent the occurrence of further program errors. The customer shall be obliged to carry out regular plausibility checks when using the supplied modules of the ASGT in order to avoid wrong decisions by the customer (for example in the case of personnel decisions, suggestions based on the bonus system, etc.)

6.4 Cancellation of the guarantee

The licensor does not assume any warranty if a program error is due to circumstances beyond his control, such as in particular

• Unauthorized changes to the conditions of use and operation described in the documentation
• unauthorized interference with the program by the customer or third parties
• Operating errors by customer or third party personnel
• Influences of systems or programs not provided by the licensor.

If it turns out that the Licensor is not responsible for a program error, or that the Licensor has incurred additional expenses due to the Customer’s failure to properly fulfill its obligation to cooperate and document, the Licensor has the right to charge the Customer for the costs actually incurred for analyzing and correcting the error, based on the time and materials used.

7. legal guarantee

7.1 Contents

The Licensor declares that he has either developed the Licensed Material himself and that he is entitled to the corresponding industrial property rights, in particular the copyright, or that he has acquired the corresponding rights to use and distribute the Licensed Material from the holder of the rights and that he is not aware of any prior rights of third parties in Switzerland at the time of conclusion of this Agreement or an Appendix.

7.2 Duty of defense

Should third parties assert claims against the customer due to infringement of allegedly proprietary rights belonging to them, the licensor will conduct the defence at his own expense and will assume any costs and damages imposed on the customer by a legally binding court decision if the customer informs him immediately in writing of the asserted claim and instructs him to conduct the defence, including the conclusion of a settlement, and to a reasonable and appropriate extent, and if the claim of the third party is based on the fact that the intended use of the valid, unmodified version of the Licensed Material infringes a property right existing in Switzerland or constitutes unfair competition.

7.3 Measures

If, in the opinion of Licensor, the valid, unmodified version of the Licensed Material could violate the intellectual property rights of third parties in Switzerland, Licensor will, at its option, either make modifications at its own expense in order to eliminate the violation of intellectual property rights or enter into negotiations in order to acquire the corresponding rights from the better entitled third party.

If these measures do not lead to the desired result with reasonable and reasonable effort and the infringement of property rights has been established by a legally binding judgement, Licensor shall compensate Customer for the loss of the right of use by reimbursing the one-time license fees paid, less an appropriate compensation for the use in the meantime, and shall assume

any costs and damages

imposed on Customer by a court of law.

7.4 Cancellation

Licensor shall be released from the above obligations if an intellectual property right claim is based on the fact that Customer has modified the Licensed Material, used it together with other programs or data or under conditions of use and operation other than those defined in the Annex.

8. liability

8.1 For direct damages

The Licensor shall be liable to the Customer for direct damages resulting from or in connection with the fulfillment of this Agreement by the Licensor, its personnel or auxiliary persons. The Licensor shall be liable up to the amount of the annual license fee. This limitation shall not apply to damages caused culpably (intentionally or by gross negligence) or to physical injury. The costs for the replacement of data, damages due to error evaluation, work interruptions, lost profit, additional expenses etc. as well as the claims of third parties are excluded.

8.2 For indirect and consequential damages

Any liability or obligation of Licensor, its personnel or its auxiliary persons arising out of or in connection with the use and application of the Licensed Material and the results obtained therefrom, as well as out of testing and for indirect or consequential damages such as loss of profit, unrealized savings, additional expenses of the customer or claims of third parties, is excluded to the extent permitted by law.

8.3 Prevention of Performance

Licensor shall not be liable if, for reasons beyond its control, it is prevented from

timely and proper performance of services under this Agreement. The dates scheduled for performance shall be extended in accordance with the duration of the effect of the circumstances for which the Licensor is not responsible.

8.4 Complete disclaimer

The Licensor shall not be liable if the Customer makes decisions based on the data collected by ASGT. In particular, ASGT shall not be liable for wrong decisions of the customer in personnel decisions, bonus systems and other decisions for which ASGT provides instruments or results for decision-making aids.

9. duration and termination of the contract

9.1 Start and duration

The license agreement comes into force upon their conclusion and is concluded for a period of 12 months. This contract can be terminated at the end of the 12-month term with a 6-month period of notice. Without termination, the license agreement is automatically extended for another 12 months.

9.2 Dissolution by the Licensor

The Licensor may only terminate this Agreement and withdraw the rights granted to the Customer under this Agreement if the Customer seriously violates this Agreement, in particular if the Customer is at least 60 days in arrears with the payment of the license fees despite a written reminder. Furthermore, the Licensor has the possibility to terminate the Agreement pursuant to Section 7.3 if the Licensor is unable to remedy an infringement of property rights in any other way after all other possibilities have been exhausted.

9.3 Obligation to return

The customer’s right to use the license material in accordance with the provisions of section 2 expires on the date on which the withdrawal or termination takes effect.

10. various provisions

10.1 Confidentiality

Both parties to the contract, as well as their employees and auxiliary persons involved, mutually undertake to maintain the confidentiality of all documents and information not generally known, which relate to the business sphere of the other partner and become accessible to them during the preparation and execution of this contract. This obligation shall remain in force as long as there is a legitimate interest in it, even after the termination of the contractual relationship.

10.2 Data protection

Assessment Gate AG’s privacy policy is an integral part of this contract.

10.3 Offsetting of receivables

The offsetting of any claims of a contractual partner with counterclaims of the other partner requires the prior written agreement of the contractual partners.

11. final provisions

11.1 Content of the contract

This contract conclusively regulates the relations between the contracting parties and replaces the negotiations and correspondence conducted prior to the conclusion of the contract.

11.2 Partial Invalidity

Should individual provisions or parts of this contract prove to be void or ineffective, the validity of the rest of the contract shall not be affected. In such a case, the contracting parties shall adjust the contract in such a way that the purpose intended by the void or ineffective part is achieved as far as possible.

11.3 Assignment and transfer

This contract or individual rights and obligations arising from it may only be assigned or transferred to third parties with the prior written consent of the other contracting party.

11.4 Applicable law

This contract is subject to Swiss law, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980. Zurich is agreed as the place of jurisdiction.