fusedeck is a tracking solution for the analysis and optimization of digital campaigns and offerings. This solution is provided by Capture Media AG, a Swiss enterprise having its registered office in Zurich (hereinafter referred to as “Capture Media”).

These General Terms and Conditions (“GTC”) regulate the rights and obligations of both Capture Media and fusedeck users (hereinafter generally referred to as the “Users”). For individual or additional functions and services, it is possible that additional or other terms and conditions and other legal documents apply.

1. Functions and Services

1.1 On behalf of Users, Capture Media operates fusedeck in the form of a cloud-based Software as a Service (SaaS) offer. Capture Media provides Users with access to the most recent fusedeck version against payment. Capture Media provides fusedeck in the form of either a private cloud or a public cloud offer.

1.2 The scope of functions and services as well as the fees shall depend on the relevant contractual agreements between Capture Media and individual Users. Capture Media shall have the right to publish on its website and to refer to the respective information.

1.3 On behalf of Users, Capture Media operates the infrastructure required for fusedeck, stores the Users’ data and provides the Users with adequate support relating to the use of fusedeck. Apart from the above, Capture Media shall be entitled to offer its consultancy and support services against payment. Capture Media shall have the right to commission third parties to perform individual or all the services in relation to fusedeck.

1.4 Capture Media shall be entitled to change or upgrade fusedeck as a whole or in relation to single functions and services. Capture Media shall adequately inform Users about significant changes. To the extent to which significant changes are unacceptable for individual Users, they shall be entitled to cancel the contract for cause subject to a 21-day notice period prior to the end of the month.

1.5 Capture Media shall be entitled to deliver to Users notifications in relation to fusedeck by e-mail, instant messaging and other communications channels. Such notifications may also contain advertisements for fusedeck functions and services, whereby Users shall have the right to object to receiving notifications which contain advertisements at any time (“opt-out”).

2. Use of fusedeck

2.1 During the applicable contractual term, Capture Media grants Users a non-exclusive, non-gratuitous, non-sublicensable and non-transferable usage right in fusedeck exclusively for the Users’ own purposes. This usage right shall be limited to the contractually and legally compliant use of fusedeck by individual Users. Capture Media shall be entitled to further limit the use and to refer to existing third-party terms, conditions and rights, in particular to those in relation to Free Open Source Software (FOSS).

2.2 Any and all intellectual property rights and other rights related to fusedeck which are granted for the purpose of using fusedeck shall remain with either Capture Media or the other holders of the respective rights. In particular, Users shall acquire no rights related to fusedeck software or in Capture Media’s expertise in connection with fusedeck.

2.3 Capture Media shall provide Users with individual user accounts. Users are required to prevent misuse of their user accounts by implementing adequate technical and organizational measures.

2.4 Capture Media stores the Users’ data during the respective contractual term. Such data falls into the legal ownership and responsibility of individual Users who shall be exclusively responsible for storing and otherwise processing such data. When processing personal data, Users are required to strictly comply with applicable data protection law.

2.5 Capture Media shall implement adequate measures against loss of data and for guaranteeing data security. Individual Users shall be responsible for data back-ups. If and to the extent that Capture Media is not required to store any such data for legal or for other reasons, Capture Media shall be entitled to erase such data once the contractual term is over.

2.6 Any use of fusedeck in ways or for purposes contrary to the law is prohibited. Users are in particular required to guarantee that applicable data protection and telecommunications law is complied with and that no third-party rights will be infringed.

2.7 Users shall indemnify and hold Capture Media harmless from and against any and all expenses, costs and any type of liability which results from fusedeck being used in a way contrary to the law. These costs shall expressly include the costs resulting from legal counselling and legal representation and costs relating to official and court proceedings which Capture Media considers to be required. Apart from the above, Users shall hold Capture Media harmless from any and all claims of other Users and third parties if and to the extent to which these claims are in any way related to the use of fusedeck. Capture Media shall have the right to erase data which they deem to be contrary to the law at any time.

2.8 Capture Media shall be entitled, at any time, to block Users from accessing fusedeck in the case where they infringed these GTC or any other contractual agreements or in the case where they suspect the software program to be misused.

3. Payment

3.1 The Users undertake to always, timely and completely fulfill all of their financial obligations towards Capture Media. Any payment shall be due within a 30-day payment period, unless Capture Media indicated another payment period. Capture Media shall be entitled to allow use of fusedeck subject to advance payments or payment on account. Any invoices the Users fail to object to within a 30-day period shall be considered to be accepted.

3.2 Should individual Users fail to make payments on time, they shall automatically default on payments without the need to remainders. In the case of default, Capture Media shall be entitled to invoice default interest to the amount of 5.0% per year. Capture Media shall be entitled to block defaulting Users from accessing fusedeck. Capture Media shall be entitled to assign to third parties any of their payment claims against Users without the need to obtain an approval first. Offsetting any claims by Users shall not be admissible if Capture Media did not consent to this in writing.

4. Warranty and Liability

4.1 Capture Media shall provide its services in a professional and diligent manner. Capture Media shall seek to ensure that fusedeck functions and scope of services contractually agreed upon can be used at all times during the contractual term. In the event of defects which the Users notice, document and report to Capture Media immediately after detection, Capture Media shall seek to ensure that such defects will be eliminated within a reasonable period of time and by applying adequate measures.

4.2 Capture Media seeks to achieve high levels of fusedeck availability and reliability, however, Capture Media is unable to guarantee that fusedeck is free from errors or that fusedeck functions and services are permanently available at all times. Capture Media shall be entitled to interrupt access to fusedeck for the purpose of performing maintenance. If possible, Capture Media shall schedule maintenance for periods between 10.00 p.m. and 6.00 a.m. (local time in Switzerland) and Capture Media shall inform the Users about any scheduled maintenance periods.

4.3 Capture Media’s liability shall be limited to direct material and property damage which Capture Media caused in a culpable manner when fulfilling their contractual agreements with individual Users. Liability shall also be limited to the extent of annual remuneration which an individual User affected by this must pay for the respective services.

4.4 Any liability of Capture Media and/or its ancillary staff for other or additional claims and damage, in particular claims for compensation of indirect or consequential damage, loss of profits, loss of use, loss of expected savings, business interruption or loss of earnings, shall be expressly excluded. In no case shall Capture Media be liable for Users illegally storing or otherwise processing any data or for Users illegally using or otherwise misusing any data.

4.5 The limitation of liability under these GTC shall apply independently from the relevant legal reason. Any additional, compulsory liability, in particular liability for cases of injuries to persons, gross negligence, or willful intention, shall remain reserved.

5. Term of Contract

5.1 The beginning and term of the contract shall depend on the contractual agreements between the contractual parties. In the absence of related agreements, a contract shall commence once access to fusedeck is granted and the contractual term shall be indefinite. Upon contract termination, access to fusedeck will be blocked.

5.2 Both contractual parties shall be entitled to ordinary contract cancellation subject to a notice period of 30 days prior to the end of the month. Cancellation must be made in writing or in any other form which allows for proof in text form.

5.3 Users shall be entitled to cancel the contract for cause subject to a notice period of 10 days prior to the end of the month in the case where Capture Media failed to rectify the relevant cause within a minimum period of 30 days in spite of receiving a written warning; warnings and cancellation must be made in writing.

6. Final Provisions

6.1 Capture Media shall be entitled to have third parties perform or to assign to third parties individual or all the rights and obligations under these GTC.

6.2 Should individual provisions under these Terms be ineffective or invalid, this shall not affect the validity of the remaining provisions under the GTC. Ineffective or invalid provisions must be replaced by such valid provisions which come as close as possible to the original purpose in economic terms.

6.3 Capture Media shall be entitled to modify these GTC at any time without the need to give reasons for this. The Users shall be adequately informed about significant amendments of these GTC.

6.4 These GTC shall be exclusively subject to Swiss law, whereby both the place of performance and the place of jurisdiction shall be Capture Media’s registered office.