General terms and conditions of business

1. Scope of Application

These General Terms and Conditions ("GTC") govern the contractual relationship between Intonate GmbH (CHE-281.993.625), Obstgartenweg 6, 8645 Jona ("Intonate") and the customer with respect to the provision of Intonate Basic ("App").

General business or contractual terms and conditions of the customer shall not apply, even if reference is made to them in the offer, quotation, or other documents. Their application to the contractual relationship between Intonate and the customer is expressly excluded.

The contractual relationship between Intonate and the customer is governed exclusively by the license agreement, these GTC, and any additional agreements referenced in the license agreement.

Deviations from these GTC must be expressly stated in a written document signed by both parties or in the offer. However, Intonate may amend these GTC at any time by publishing the revised version on the Intonate website at this link. If the customer does not object within five days, the revised GTC shall be deemed expressly and unconditionally accepted.

2. Formation of Contract

A license agreement is deemed concluded between Intonate at the time of signing the agreement (an exchange of declarations of consent by email or virtual click is sufficient). In the absence of a formal declaration of consent, the most recent offer from Intonate shall be deemed accepted at the time of the customer's first use of the App.

3. Obligations of the Parties

Unless the license agreement stipulates otherwise, the customer receives a non-exclusive, non-transferable, non-encumberable, and non-sublicensable simple license (non-exclusive) to use the App.

The license right is limited in time in accordance with the provisions governing the term of the license agreement.

The license is restricted to the purpose and scope defined in the agreement. Any use beyond this scope is not permitted without the prior written consent of Intonate.

The customer is not entitled to grant sublicenses, regardless of whether this is done for remuneration or free of charge. Any transfer, rental, lending, public disclosure, or other exploitation of the App by the customer is not permitted without the express approval of Intonate.

All rights to updates, upgrades, or other modifications of the App remain reserved to Intonate. The customer has no entitlement to such changes unless they are expressly agreed upon within the framework of the license agreement or another agreement.

4. Services of Intonate

Intonate makes the App available to the customer for the purpose specified in the license agreement. Beyond this, the customer has no claim to additional services from Intonate.

Intonate has developed and programmed the App with due care. However, the customer is aware that Intonate is a start-up. Consequently, the customer is also aware that the App is still in a certain experimental phase. Inherent to this phase is that the use of the App may be characterized by unstable or faulty performance or limited availability.

Intonate is entitled to engage third parties for the fulfilment of its services.

Intonate may — at its own discretion and independently of any contractual term — modify the source code of the App (e.g. by way of updates) and make the App available to the customer only in its updated form. This applies in particular where modifications are necessary for security reasons.

The customer acknowledges that changes to software or services provided by third parties can only be anticipated or planned for to a limited extent by Intonate. Accordingly, changes to third-party services or software may result in the App being non-functional or only partially functional. Such disruptions shall likewise not constitute poor performance or non-performance on the part of Intonate.

5. Invoicing and Payment (VAT)

For the licensing of the App, the customer shall pay Intonate the remuneration specified in the license agreement. Claims of Intonate are — unless otherwise agreed in the license agreement — to be settled exclusively in CHF. The customer shall bear all applicable bank and transfer fees as well as any costs for currency conversion.

The remuneration is owed regardless of whether the App is used.

The customer is not entitled to receive a physical invoice in paper form.

All payments are to be made on time and without deduction. All payment deadlines are to be understood as fixed due dates.

If the customer falls into arrears, Intonate may charge default interest at the statutory rate for each commenced day of delay. Furthermore, Intonate reserves the right to deny the customer access to the App until full payment has been received.

Unless otherwise agreed on the invoice, Intonate's prices are understood to be net prices (i.e. excluding VAT). All taxes and duties are to be paid by the customer.

6. Obligations of the Customer

The customer undertakes to refrain from the following actions when using the App:

Modifying, copying, renting, selling, or distributing the Intonate App.
Attempting to reverse engineer, decompile, or extract the source code or underlying components of the App, including its algorithms or systems, or assisting anyone else in doing so.
Extracting data insofar as this is not directly related to the intended purpose of use.
Claiming that the output of the App was created by a human when this is not the case.
Using the results of the App to develop competing models to Intonate.
Using the App for unlawful purposes or in an unlawful manner (including failure to inform the patient about the recording).

The customer undertakes to store securely the data provided by Intonate and/or the content generated by the App. Any disclosure of generated data by the customer takes place exclusively at the customer's own name and risk.

The customer shall ensure independently that their mobile phone, on which the App is to be installed and used, meets the required system requirements. The customer is also independently responsible for ensuring adequate protection against third-party interference of all devices, systems, and networks associated with the customer's use of the App.

Subject to an update not incurring any additional costs for the customer, the customer undertakes to carry out updates promptly upon notification of their availability. If the customer refuses to carry out an update, they release Intonate from any liability. Furthermore, refusal to carry out an update results in the consequence that no support from Intonate can be claimed. This applies even if the customer has concluded a support agreement with Intonate.

The customer warrants and undertakes to fully inform their own patients about the recording and the scope of the recording and to obtain their consent in each case.

Subject to any statutory confidentiality obligations to which the customer is subject, Intonate may conduct an audit — whether physically on-site or virtually — to verify the customer's compliance with their obligations. The customer shall provide Intonate with the necessary access upon first request.

The customer shall indemnify Intonate against all third-party claims, including legal representation costs, brought against Intonate due to a breach of the license agreement or the GTC by the customer or the customer's own clients. Should third parties assert such claims against Intonate, Intonate shall promptly inform the customer of the claims made and may, at its own discretion, leave the defense to the customer, conduct it in collaboration with the customer, or handle and conclude the legal proceedings independently. Intonate is entitled to demand a reasonable advance for the anticipated costs of legal representation. The indemnification applies accordingly to fines or other official or judicial orders and claims.

7. Warranty of Intonate

The customer acknowledges that Intonate is a start-up and that the App has limited market experience. As a result, the customer is also aware that Intonate cannot guarantee any specific level of performance. In particular, Intonate assumes no liability for the accuracy and completeness of the recordings and transcriptions. The verification of the accuracy and completeness of the recordings and transcriptions lies within the exclusive and sole responsibility of the customer.

The customer bears sole responsibility for data security (including the creation of backups) and for informing their own patients about the recording (including its scope).

Apart from the preceding paragraph, Intonate shall only be liable for gross negligence and wilful misconduct. Liability for auxiliary persons of Intonate is expressly excluded. Likewise expressly excluded is any liability of Intonate for any indirect or consequential damages, loss of profit, or loss of data.

8. Intellectual Property Rights

All intellectual property rights (in particular copyrights, trademark rights, and other protective rights) in the App and all associated materials remain with Intonate, regardless of whether these have been registered in any applicable register or not.

The customer acknowledges that these GTC and the license agreement do not transfer any rights to the App or to the intellectual property of Intonate, unless this is expressly agreed upon in these GTC or the license agreement.

Any suggestions for improvement made by the customer in connection with the further development of the App are provided without compensation. The customer undertakes to assign to Intonate any related intellectual property rights that may vest in the customer. Suggestions for improvement or feedback from the customer do not give rise to any claim by the customer against Intonate for services or performance.

9. Working Hours and Support

Intonate is generally available for support requests during normal business hours.

However, the customer has no material entitlement to the provision of support services by Intonate. This applies in particular with regard to components originating from third-party providers, as well as with regard to response times.

10. Confidentiality and Data Protection

Intonate processes personal data of patients as a data processor on behalf of the customer. The subject matter, nature, purpose, and duration of the commissioned data processing, as well as the categories of personal data involved, are set out in the license agreement and the additionally concluded data processing agreement. The customer is responsible for the lawfulness of their own processing of personal data.

If the customer chooses to permit the collection of diagnostic and usage data, Intonate (including affiliated persons) may collect, manage, process, and use diagnostic data as well as technical, usage-related, and associated information. This information is collected on a regular basis in order to provide and improve Intonate's products and services.

11. Reference Listing

The customer agrees that Intonate may list their name or company as a reference on brochures and/or the website.

The customer may revoke their consent to the reference listing on the website at any time. Intonate will remove the reference listing from the website in a timely manner. If consent is withdrawn after brochures have already been printed, the already printed brochures may continue to be used.

12. Force Majeure

Intonate shall not be liable for any failure or delay in the fulfilment of its obligations where such failure or delay is caused by events beyond its control, including but not limited to (i) acts of God, (ii) war, (iii) terrorism, (iv) civil unrest, (v) governmental action, (vi) pandemics and epidemics, (vii) strikes, (viii) lockouts, (ix) natural disasters, (x) fire, (xi) explosions, (xii) computer, telecommunications, internet service provider, or hosting facility failures; (xiii) delays affecting hardware, software, or power supply systems not owned by or within the control of Intonate (e.g. suppliers), or (xiv) other catastrophes. The affected party shall notify the other party without delay upon the occurrence of such an event and shall make all reasonable efforts to mitigate the effects of such an event.

13. Prohibition of Assignment and Set-Off

The customer is not entitled to assign any claims arising from this agreement without the prior written consent of Intonate. Set-off against claims towards Intonate is only permissible if the counterclaims are undisputed or have been established by a final and binding court decision.

14. Severability Clause

Should any individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall replace the invalid provision with a valid one that comes closest to the economic purpose of the invalid provision.

15. Governing Law and Jurisdiction

The license agreement and these GTC are subject exclusively to the law of the Swiss Confederation, to the exclusion of conflict of laws and international law provisions.

The place of jurisdiction for all disputes arising from or in connection with these GTC shall be the same place of jurisdiction as stipulated in the license agreement.