1. Contract Content

These Terms and Conditions ("T&C") govern the business relationship between Rise GmbH, based in Zurich, Switzerland (hereinafter "Rise"), and its customers (business customers and in exceptional cases private consumers) regarding the use of virtual desktop resources provided by Rise via the Microsoft Azure platform. The T&C become an integral part of every contract between Rise and the customer as soon as the customer gives express or implicit consent to them during the order process or contract conclusion. They apply to all current and future services provided by Rise, unless otherwise agreed in writing. Any general terms of the customer do not apply unless Rise has explicitly agreed to their applicability in writing. In case of doubt, individual written agreements between Rise and the customer shall prevail over these T&C.

2. Services

Rise provides the customer with virtual desktop infrastructure ("virtual desktops") via the Microsoft Azure cloud service. Through a management platform provided by Rise, the customer can request, configure, and use such resources. The specific scope of services and deliverables from Rise are defined in the individual agreement or order with the customer. In this context, Rise acts as a reseller of cloud resources from the provider Microsoft Azure. The underlying Microsoft Azure services and any other third-party services are subject solely to the terms and conditions of the respective third-party provider (e.g. Microsoft). The customer is obligated to comply with such third-party terms. Rise assumes no warranty or liability for the availability, performance or other characteristics of such third-party services; however, Rise is responsible for the careful provision of its own services to the customer. Depending on the agreement, Rise may offer the customer additional services such as technical support, maintenance, or consulting. Any such additional services and any Service Level Agreements (SLA) will be agreed upon separately and individually with the customer.

3. Fees

• The fees and prices to be paid by the customer for Rise’s services are set out in the contract or an individual offer. Unless agreed otherwise, all prices are in Swiss Francs (CHF) plus applicable VAT.

• Billing is generally carried out on a monthly basis, either in advance at the start of the billing period or in arrears based on actual usage. Invoices must be paid by the customer within 30 days from the invoice date.

• In case of late payment, the customer will be in default without reminder; default interest at the statutory rate (5% p.a.) and dunning fees may be charged. If the customer remains in default after a reminder, Rise is entitled to suspend the services or terminate the contract with immediate effect.

• Rise reserves the right to adjust the prices and fees for its services. Rise will inform the customer of any price changes at least 30 days before they take effect. If the customer does not agree with a price change, he may terminate the contract as of the effective date of the change.

  
  

4. Validity and Changes

Rise is entitled to modify these T&C at any time. Rise will communicate changes to these T&C in an appropriate manner (e.g. by e-mail or via the platform). Amended provisions will not take effect until at least 30 days after notice. If the customer does not object to the new T&C within 30 days of notification and continues to use the services, the changes shall be deemed accepted. In the event the customer timely objects to the changes, Rise has the right to extraordinarily terminate the contract as of the date the new T&C would come into effect.

5. Obligations of Rise

• Rise provides the agreed services in a professional manner and with the care of a prudent businessperson. It supplies the customer with the contracted virtual desktop resources in accordance with the contract and specifications.

• Rise ensures a high availability of the services. The targeted minimum availability is [availability commitment to be defined] % (as will be specified in an SLA). Unless otherwise provided in an SLA, the customer’s sole remedy for a failure to meet the assured availability is any service credits set forth in the SLA, and not damages.

• Rise monitors the functioning of the provided infrastructure and strives to remedy any disruptions as quickly as possible during normal business hours.

• Rise will, where possible, announce planned maintenance in advance and, if feasible, perform it outside of peak usage hours to keep service interruptions to a minimum.

• Additional support (e.g. helpdesk support for the customer’s end users or custom configurations) is provided by Rise only if expressly agreed.

6. Obligations of the Customer

• The customer is obligated to pay all fees as agreed in the contract in a timely manner (see Section 3).

• The customer shall provide Rise with all information and cooperate as needed in a timely manner for Rise’s provision of the services.

• The customer is responsible for maintaining the technical requirements for accessing the services (including a functioning internet connection and up-to-date hardware/software on the user side).

• The customer may use the services only within the scope permitted by the contract and in compliance with applicable laws.

• The customer shall not use the services for any unlawful purposes and shall not transmit or store any content that violates applicable law.

• The customer shall respect third-party rights (in particular copyright, trademark, personal and data protection rights) and shall not commit any such violations through use of the services.

• The customer shall not distribute any content via the services that is illegal, harassing, glorifies violence, extremist, or pornographic in nature.

• The customer shall refrain from any abusive use of the services, in particular not cause excessive load on the infrastructure, not attempt any unauthorized access to systems, and not distribute malware or spam via the platform.

• The customer shall not circumvent or interfere with Rise’s security and protective mechanisms.

• The customer must keep any access credentials provided (usernames, passwords, etc.) secure and confidential, and protect them from access by unauthorized third parties. The customer is responsible for all activities that occur under its account credentials.

• The customer will inform Rise immediately if it becomes aware of any unauthorized use of its account or any other security breaches.

• The customer is responsible for regularly creating backup copies of the data stored on the virtual desktops, unless a backup service by Rise has been expressly agreed. It is recommended to additionally back up important data outside of Rise’s infrastructure.

• If the customer processes or stores personal data in the course of using the services, the customer is responsible for complying with the relevant data protection regulations (e.g. obtaining any required consents from data subjects).

• The customer shall indemnify and hold Rise harmless from all third-party claims that result from the customer’s unlawful use of the services or from content provided by the customer. This includes claims for infringement of copyrights, personal or data protection rights, or other laws by the customer’s conduct or data. The customer shall also bear the costs of any necessary legal defense incurred by Rise in this context.

• The services provided by Rise are intended solely for the customer’s own use. The customer may not rent, lend, or otherwise provide the services to third parties, whether for payment or free of charge, except with the prior written consent of Rise.

7. Term and Termination

• Unless a fixed contract term or minimum duration is expressly agreed, the contract is concluded for an indefinite period. Open-ended contracts may be terminated by either party at any time in writing effective as of the end of a calendar month. If a minimum term or fixed period has been agreed, an ordinary termination is possible no earlier than at the end of that term. Termination notice must be given in writing (email is sufficient).

• Any usage-based fees accrued up to the end of the contract will be invoiced to the customer after termination. If the customer has paid fees in advance for a period beyond the termination date, Rise will refund the customer any such prepaid amounts for the period after contract termination on a pro rata basis, unless agreed otherwise.

• After termination of the contract, Rise will delete the data stored by the customer in the cloud within 30 days, provided there is no legal obligation to retain it. It is the customer’s responsibility to export or back up its data before the end of the contract. Upon the customer’s request and at the customer’s cost, Rise may assist the customer with migration or handover of data.

• The right to terminate without notice for important cause remains unaffected. In particular, Rise is entitled to terminate the contract immediately or temporarily suspend the services if the customer breaches material contractual obligations (especially in the event of serious violations of Section 6 [Customer Obligations] or if the customer remains in default of payment despite reminder) or if bankruptcy or liquidation proceedings are initiated against the customer.

• Conversely, the customer is entitled to terminate the contract with immediate effect if Rise seriously breaches essential contractual obligations and fails to remedy such breach within a reasonable period.

8. Rights to Services and Data

• All ownership and intellectual property rights (e.g. copyrights, trademarks, patents) in the services, platform, software and documentation provided by Rise remain with Rise or its licensors. The customer does not acquire any ownership rights thereto, but is granted only the usage rights set forth below.

• For the duration of the contract, Rise grants the customer a non-exclusive, non-transferable, and non-sublicensable right to use the virtual desktop services provided by Rise in accordance with the contract provisions and these T&C for the customer’s own business purposes (or for the customer’s personal purposes, if the customer is a consumer).

• The customer shall not copy the software or platform provided by Rise (except to the extent required for the use expressly permitted by the contract) nor reverse engineer it or otherwise attempt to discover the source code, structure, or concepts of the software/platform, except to the extent expressly permitted by law.

• The customer shall not remove or alter any of Rise’s trademarks, logos, copyright notices or other proprietary markings.

• All content and data that the customer enters, uploads or creates while using the services remain the property of the customer. Rise does not claim any ownership over customer data.

• However, the customer permits Rise to use such data and content for the purpose of performing the contract, in particular to store, back up, and process them for support or maintenance purposes to the extent necessary for providing the services. Rise will not use or disclose customer data for any other purposes except with the customer’s consent or if legally required to do so.

• If the customer uses any third-party software, trademarks, logos or other protected content (including those of Microsoft) when using the services, the customer is responsible for complying with the license terms of those third parties. Rise may require the customer to provide proof of having the necessary rights of use.

  
  

9. Liability

To the extent permitted by law, Rise excludes all liability and in particular assumes no liability for simple negligence. In no event shall Rise be liable for indirect or consequential damages such as lost profits, loss of data, production downtime, additional expenses of the customer, or third-party claims. If Rise is held liable for any direct damage to the customer (which only applies to the extent that such liability cannot be further excluded by law), then such liability is, in aggregate, limited to the amount that the customer paid to Rise for the relevant services in the 12 months preceding the event causing the damage. The foregoing limitations of liability do not apply in cases of willful intent or gross negligence by Rise, or in the event of injury to life, body or health; in such cases, Rise’s liability shall be determined in accordance with statutory provisions.

10. Confidentiality and Data Protection

Both parties undertake to treat as strictly confidential and not disclose to third parties all confidential information and trade secrets of the other party that become known in connection with this contract. Confidential information in particular includes all business, financial, technical or personnel information that is not publicly known. This confidentiality obligation remains in effect for an unlimited period even after termination of the contract. Statutory obligations to disclose information to authorities remain reserved.

Rise complies with the applicable data protection laws when processing personal data, in particular the Swiss Federal Data Protection Act (DSG) and – to the extent applicable – the EU General Data Protection Regulation (GDPR). Rise will process personal data of the customer and its users solely for the purpose of performing the contract and in accordance with the customer’s instructions. If required by law, the parties will conclude a separate data processing agreement (DPA). The customer remains responsible for the lawfulness of the personal data that it transmits to Rise or processes while using the services. The customer must ensure that it is entitled to provide such data to Rise for processing and that any affected individuals have been informed or have given consent, to the extent required by law.

The customer acknowledges that Rise may engage third-party companies as subcontractors to provide the services (in particular Microsoft as the infrastructure provider), which may process personal data in other countries. In doing so, Rise will comply with the relevant legal requirements for processing data outside of Switzerland and contractually ensure that such third-party providers guarantee an appropriate level of data protection. In the event of serious security incidents or data protection breaches affecting the customer’s personal data, Rise will inform the customer without undue delay and take appropriate measures to mitigate damage. In such a case, the parties will cooperate to fulfill any statutory reporting and notification obligations.

11. IT Security

• Rise implements appropriate technical and organizational security measures to protect the confidentiality, integrity and availability of systems and data (e.g. firewalls, encryption, access controls). Nevertheless, Rise cannot guarantee absolute protection against security breaches.

• The customer is responsible for ensuring the security of its own IT systems, end devices, networks, and applications. In particular, the customer should use up-to-date security software, apply available updates in a timely manner, and protect access credentials from unauthorized access.

• The customer is aware that using internet-based services entails certain risks (e.g. data loss, unauthorized access, cyber attacks). Rise is not liable for damages from security incidents that are outside of its control. The customer acknowledges that complete protection against such risks is not possible.

12. Severability

Should any provision of this contract or the T&C be or become invalid, void or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected. In place of the invalid or missing provision, a valid provision shall be deemed to be agreed which comes closest to the economic purpose of the invalid provision in a legally permissible manner. The same applies to any contractual gaps.

13. Governing Law and Jurisdiction

This contract is governed by the substantive laws of Switzerland, to the exclusion of conflict-of-law provisions. The court of competent jurisdiction for all disputes arising out of or in connection with this contractual relationship is Zurich, Switzerland. Mandatory statutory venues for consumers remain reserved.

14. Other Provisions

• This contract (including these T&C and any written individual agreements) constitutes the entire agreement of the parties regarding the subject matter and supersedes all prior oral or written agreements in this regard. There are no oral side agreements.

• Any changes or additions to this contract (including the T&C) must be made in writing, whereby email is sufficient. This requirement of written form also applies to any waiver of this form requirement.

• The customer may not assign or transfer any rights or obligations from this contract to third parties without the prior written consent of Rise. Rise is entitled to transfer its rights and obligations under the contract to an affiliated company or as part of a business transfer, and Rise will inform the customer of such transfer.

• The failure or delay by either party to exercise any right or remedy under this contract shall not be deemed a waiver of that right or remedy.

• Events of force majeure or other unforeseeable circumstances beyond Rise’s control (e.g. natural disasters, pandemics, government orders, power outages, labor disputes at third parties, failures of telecommunications networks or cloud infrastructure) release Rise from its obligation to perform for the duration and scope of their effect. Rise shall not be liable for any performance issues caused by such events. Any agreed service deadlines shall be extended accordingly, and the customer shall have no right to claim damages in such cases.

• The exclusions and limitations of liability in these T&C shall, to the extent permitted by law, remain effective even after termination of the contract.

• These T&C have been drafted in German and English. Both language versions are of equal content and authenticity. In the event of any inconsistency or difference in interpretation between the language versions, the German version shall prevail.