General Terms and Conditions (AGB)

1 Scope of application

1.1 What do these General Terms and Conditions regulate?

These General Terms and Conditions (GTC) apply to all IT and consulting services provided by Digital Theta Trading, in particular hosting, software installation, maintenance and support as well as IT and financial consulting.

1.2 How is the contract between the parties concluded?

These GTC govern the rights and obligations of Digital Theta Trading and its clients (hereinafter collectively “the Parties”) in addition to a specific contract.

Offers from Digital Theta Trading are binding for 30 days and are deemed to be an invitation to conclude a written contract. Price or service changes by involved subcontractors or third-party components are always reserved.

The contract is concluded by the mutual signing of a contract.

1.3 Do other provisions apply?

General terms and conditions or other standard agreements of the client shall only apply if Digital Theta Trading has expressly agreed to them in writing.

For third-party products that Digital Theta Trading distributes or sublicenses, additional terms and conditions of the respective suppliers/manufacturers may apply.

2 Principles of service provision

2.1 How does Digital Theta Trading provide the contractual service?

As a rule, Digital Theta Trading provides the contractual services personally or through its employees. Digital Theta Trading may engage third parties to fulfill the contract at any time (so-called “subcontractors”). The subcontractors and their employees are so-called auxiliary persons of Digital Theta Trading.

The customer is informed which third-party services and components are used as standard as part of the service purchased.

If the client does not agree to a possible change of subcontractor or the involvement of a new service provider, he may reject this within 14 days, stating his reasons. If there is an important reason, Digital Theta Trading and the client will look for a possible replacement or an alternative solution. If the parties are unable to reach an agreement within a reasonable period of time, the client may terminate a permanent contract with a notice period of 3 months to the end of a calendar month. Shorter mandatory notice periods remain reserved. In the case of contracts for work and services, the client may withdraw from the contract with reasonable indemnification of Digital Theta Trading.

2.2 To whom does Digital Theta Trading provide the contractual service?

Digital Theta Trading provides its services to the client. Digital Theta Trading may also provide its services to third parties if this is provided for in the contracts. In any case, the client is exclusively entitled to contractual claims. Third party service recipients cannot assert any claims against Digital Theta Trading.

If third parties are intended as service recipients, the customer shall be obliged to transfer all of the customer’s duties and obligations set out in the contract, including its obligations to cooperate and other obligations, to the third party service recipients. The customer shall be responsible for breaches of the contract by the third-party service recipients.

2.3 Where does Digital Theta Trading provide the contractual service?

The contractual services can be performed on the business premises of Digital Theta Trading, at the place of work of Digital Theta Trading employees (e.g. remotely), on site at the client’s premises or remotely.

2.4 When does Digital Theta Trading provide the contractual service?

Digital Theta Trading and the client agree jointly and explicitly which deadlines must be met urgently. Digital Theta Trading will endeavor to meet the other deadlines. The contractually agreed standby and response times remain reserved.

Unless otherwise agreed, Digital Theta Trading shall provide its services during operating hours (also referred to as “working hours”). The working hours are from Monday to Friday from 08:00-12:00 and from 13:00-17:30.

2.5 What happens if Digital Theta Trading does not perform on time?

Digital Theta Trading can only meet deadlines and milestones if the client provides the necessary cooperation. The parties therefore agree at the start of each project and on an ongoing basis in the event of changed conditions which cooperation is to be provided by the client. If deadlines cannot be met due to the client’s failure to cooperate, the deadline becomes non-binding for Digital Theta Trading.

Digital Theta Trading will inform the client of any delays for which Digital Theta Trading is responsible and their expected duration. In such a case, the client grants Digital Theta Trading the right to provide its services at least once within a reasonable grace period.

If Digital Theta Trading is affected by an event of force majeure (see section “What damages is Digital Theta Trading not liable for in any case”), its obligation to perform is suspended until emergency operations can be carried out. Agreed deadlines shall be extended accordingly by mutual agreement. In the case of continuing obligations, the customer remains liable for payment.

2.6 What responsibility does the customer bear?

The client undertakes everything that is necessary for Digital Theta Trading to fulfill its contractual obligations (so-called “obligations to cooperate”). In particular, the client is responsible for

providing the necessary access to rooms, systems and user accounts;

appointing internal contact persons and arranging any necessary contacts with third-party providers and, if necessary, facilitating direct cooperation with them;

providing the necessary data and documents;

timely information about events (e.g. personnel changes, new supervisory requirements) that could have an impact on the provision of services by
Digital Theta Trading;

supporting Digital Theta Trading with fault analyses and troubleshooting.

Clients must use secure passwords and set up multi-factor authentication to access Digital Theta Trading services or infrastructure. Furthermore, the client is responsible for data security, protection (malware protection) and maintenance (updates) of the devices, networks and browsers used to access Digital Theta Trading’s services or infrastructure.

Further duties to cooperate can be contractually agreed. In addition, further duties to cooperate may arise from the interpretation of the contract.

2.7 What happens if the customer does not fulfill his obligations to cooperate or does so too late?

Digital Theta Trading will first send the client a reminder and set a reasonable grace period. If the client subsequently fails to provide the agreed or assumed obligations to cooperate, Digital Theta Trading will suspend its services dependent on this until the client provides its cooperation. Costs incurred remain owed by the client even during an interruption of services (e.g. license fees). The same applies to employee hours that have been scheduled for the client and cannot be deployed elsewhere at short notice.

Digital Theta Trading will invoice the client for additional expenses and costs resulting from the client’s lack of or insufficient cooperation. The client is obliged to reimburse these costs. Additional costs of up to CHF 5,000.00 can be invoiced with a summary statement of services. Up to this amount, the customer waives the right to a detailed statement of services.

3 Specific contractual services

3.1 Where is the contractual service described?

The contractual service is described in the specific contract or contractual construct. If Digital Theta Trading acts as a reseller, the contracts and service description of the manufacturer/supplier apply.

Any service levels are contractually agreed. If no service level has been agreed, Digital Theta Trading shall provide its support services according to best effort (i.e. according to the availability of internal resources), whereby no response time is guaranteed, or refer the customer to the manufacturer/supplier.

3.2 What special features apply to software and cloud services from
third parties for which Digital Theta Trading is a reseller?

The customer must comply with the license and usage conditions of third-party licensors. He is not entitled to pass on these licenses to third parties or to grant sublicenses.

Digital Theta Trading or the licensor are entitled to withdraw the customer’s right of use in the event of a breach of the license or terms of use. The client’s obligation to perform shall otherwise remain unaffected.

Unless otherwise agreed, the client is generally not contractually entitled to support services from Digital Theta Trading for third-party software and cloud services from third-party providers. Digital Theta Trading provides these on a best effort basis.

4 Acceptance and warranty for work services

4.1 What warranty rights does the client have in the case of contractual services provided by Digital Theta Trading?

The customer is obliged to inspect Digital Theta Trading’s services immediately after their acceptance or commissioning and to report any defects in writing within seven days (so-called “notice period”). Hidden defects must be reported in writing as soon as they are discovered. The warranty for hidden defects is limited to six months from acceptance or commissioning.

The complaint must contain a precise description of the defect, its cause and the circumstances surrounding it and how it arose.

In principle, the customer is entitled to the warranty claims under the Swiss Code of Obligations. However, the customer shall always grant Digital Theta Trading the opportunity to rectify the defect within a reasonable period of time. Only if this rectification does not remedy the identified defects can the customer assert further claims under the law of obligations. Any claims for defects shall expire at the latest within one year of acceptance.

Digital Theta Trading shall decide on the appropriate rectification method (repair, replacement with an equivalent solution, updates, workarounds, etc.).

The customer has no claim to rectification if he or his auxiliary person:

does not comply with the notice periods;

fails to provide the necessary cooperation for rectification;

the defect was caused by incorrect handling, failure to cooperate in good time or insufficient cooperation, system intervention or manipulation.

4.2 For which products does Digital Theta Trading not provide a warranty?

Digital Theta Trading provides no warranty for products,

which Digital Theta Trading distributes (third-party products such as hardware or other devices); or

for which Digital Theta Trading procures the licenses from a third party (namely third-party software and cloud services).

In such a case, the customer must contact the manufacturer, distributor or licensor of the products directly. The warranty, usage or license conditions of the latter shall apply.

5 Prices

5.1 Where are the prices set?

Depending on the contractual service, the contract fees may consist of fixed prices or flat hourly rates, volume prices or one-off or recurring fees (in particular for licenses, maintenance/support flat rates or operation). They are defined in the contract.

5.2 What is not included in the price?

The prices and hourly rates are exclusive of VAT and without expenses or ancillary costs (namely travel, board and lodging expenses, transportation, packaging, insurance, customs duties, taxes or other public charges, etc.). These costs will be invoiced additionally.

5.3 When is billing based on expenditure?

Unless otherwise agreed, services shall be invoiced on a time and material basis in accordance with the hourly rates applicable at the time of performance. The actual travel time will also be invoiced.

If invoicing is based on time and material or in part on time and material, the expenses shall be reported by Digital Theta Trading or its subcontractors. The report is sufficient if it shows which tasks Digital Theta Trading or its subcontractors worked on and for how long on which day. A brief report is sufficient to show that the work was necessary and useful.

5.4 What payment deadlines does the customer have to observe?

In the case of flat-rate prices, invoices are generally issued on completion of the project. The amount is due for payment within 30 days of receipt. Services for which remuneration on a time and material basis or quantity-based remuneration has been agreed shall be invoiced monthly after the service has been provided. Continuing obligations for which a recurring lump sum price has been agreed shall be invoiced monthly. The amount is due for payment within 30 days of invoicing. Invoices payable in advance must be paid by the customer by the last day of the preceding month at the latest.

5.5 What happens in the event of late payment?

The payment dates are due dates within the meaning of Art. 102 para. 2 OR. In the event of late payment, Digital Theta Trading is entitled to demand default interest of 5% without issuing a reminder. Digital Theta
Trading may make the further provision of services dependent on an advance payment of the agreed remuneration or on non-interest-bearing payments on account.

If the customer is in arrears with the payment of contract fees, Digital Theta
Trading may block access to the subject matter of the contract from the 30th day of arrears without prior warning. Access will be blocked until all outstanding claims have been settled.

5.6 Does Digital Theta Trading invoice personally?

Digital Theta Trading is entitled to commission third parties to issue invoices. In addition, Digital Theta Trading may engage third parties for the collection of due receivables.

Digital Theta Trading shall be released from any obligation of confidentiality for invoicing or for the assertion of claims against the customer, insofar as this is necessary for invoicing or collection.

The costs incurred by Digital Theta Trading or a third party as a result of any debt collection will be passed on to the client.

5.7 Under what circumstances do prices change?

If Digital Theta Trading reduces prices, it may adjust the discounts previously granted accordingly or, if the new prices are lower than the old prices including discount, cancel them.

Digital Theta Trading may unilaterally increase prices at any time. The announcement of a price increase will be made three months in advance.

The foregoing does not apply to price increases of third party products or services for which Digital Theta Trading acts only as a reseller or distributor. Such price adjustments may be passed on to the customer without prior notice.

6 Contract duration

6.1 When does the contract end?

The contractual relationship ends in the case of one-off services or services under a contract for work and services upon completion of the provision of services by Digital Theta Trading and in the case of long-term contracts upon expiry of the agreed term or upon termination under the conditions agreed in the contract.

6.2 When may a party terminate the contract extraordinarily?

Each party has the right to terminate a long-term contract in writing at any time for good cause. Good cause shall be deemed to exist in particular if:

the other party breaches a material contractual provision and the breach of contract is not remedied or made good by the breaching party despite two reasonable grace periods being set;

a case of force majeure lasts for more than two months;

bankruptcy or composition proceedings are initiated against the other party;

the other party is liquidated or ceases its operating activities.

6.3 What happens if the customer terminates the contract extraordinarily without good cause?

If the client terminates the contract for extraordinary reasons for which Digital Theta Trading is not responsible, the client shall owe the agreed contract fees until the next ordinary termination date or until the agreed end of the contract. In addition, the client undertakes to reimburse the expenses incurred by Digital Theta Trading due to the extraordinary termination. Digital Theta Trading is released from its obligation to perform. Special obligations regarding the termination of the contract remain reserved.

6.4 What are the consequences of contract termination?

The parties undertake to return to each other their property, documents and data and to irrevocably destroy copies of the other party’s data and documents, unless there is a legal obligation to retain them. The parties shall support each other in any necessary (re)transfer of the necessary licenses and intellectual property rights.

7 Liability

7.1 To what extent is Digital Theta Trading liable?

Digital Theta Trading is only liable without limitation for direct or immediate damage caused to the client by intent or gross negligence on the part of Digital Theta Trading or its employees. The liability for slight negligence on the part of Digital Theta Trading and its employees is in any case limited to the specifically proven direct or immediate damages and amounts to a maximum of 10% of the annual contract turnover excluding all costs of third-party providers, in particular licenses. Liability for damages shall only apply if the total sum of all claims for damages exceeds CHF 5,000.00. Liability can be further limited or extended by contract.

7.2 For which damages Digital Theta Trading is not liable under any circumstances

Digital Theta Trading is not liable for damages that arise because:

unauthorized access to software and other services used by the client on Digital Theta Trading’s infrastructure, provided that a vulnerability or human error attributable to the client has been exploited;

the customer or its auxiliary persons fail to cooperate properly or are late in doing so;

the customer or its auxiliary persons violate contractual obligations (namely license conditions or payment obligations).

Furthermore, Digital Theta Trading is not liable for damages resulting from events or processes or delays not attributable to Digital Theta Trading, e.g. damages caused by third parties.

Finally, Digital Theta Trading is not liable if the provision of the service is temporarily interrupted, wholly or partially restricted or impossible due to force majeure (e.g. war or unrest; epidemics and pandemics; natural disasters such as earthquakes, floods, forest fires; trade barriers; energy shortages; labor disputes; etc.). Digital Theta Trading’s obligation to perform shall be suspended to the corresponding extent. In the event of force majeure, Digital Theta Trading will inform the client as quickly as possible of its effects and expected duration.

8 Intellectual property rights

8.1 What rights of use are granted to the customer?

Certain services offered by Digital Theta Trading to the client may be protected by copyright. This includes, but is not limited to:

Consultation documents;

System and infrastructure components (operating systems, cloud platform, interfaces, processes, scripts, software, etc.).

Digital Theta
Trading retains full copyright to these works. The customer is granted a non-exclusive, non-transferable and non-sublicensable right to use the corresponding works for the duration of the contract (so-called simple license). The right of use is limited to the contractually intended use.

Digital Theta Trading is entitled to use the same or similar documents, evaluations etc. as it wishes and to use them in the context of similar work for other clients. The same applies to the know-how acquired in cooperation with the client.

8.2 What rights of use does the customer have to third-party works?

If the customer purchases works from third parties, Digital Theta Trading is usually the reseller and the customer undertakes to accept the license conditions provided by the third-party product manufacturer. In this case, the customer’s rights of use are governed exclusively by the license conditions of the third party.

8.3 What happens if Digital Theta Trading infringes the rights of third parties?

The client will inform Digital Theta Trading immediately in text form of any third-party claims asserted. The client will authorize Digital Theta Trading to conduct the defense, including the conclusion of a settlement. The client shall support Digital Theta Trading to an appropriate and reasonable extent.

If Digital Theta Trading is threatened with a lawsuit for infringement of intellectual property rights or if Digital Theta Trading or the customer is unsuccessful in the lawsuit, Digital Theta Trading:

modify the subject matter of the contract in such a way that property rights are no longer infringed;

provide the customer with the right to use the subject matter of the contract;

replace the subject matter of the contract with an equivalent solution;

Any further legal warranty of Digital Theta Trading towards the customer is excluded.

9 Confidentiality

The parties shall treat the information received from the other party as confidential and shall take appropriate technical and organizational measures to protect it. The confidentiality obligations shall also apply to personal data covered by the provisions of data protection law. The employees of the parties are obliged to maintain confidentiality. If necessary for the fulfillment of the contract, Digital Theta Trading may disclose confidential information to involved subcontractors and third-party component providers.

The confidential information may only be used within the scope of the purpose of the contract. Furthermore, it may not be recorded, stored, reproduced, passed on or used or exploited in any other way for own purposes.

Ungeachtet der vorstehenden Bestimmungen dürfen die Vertragspartner vertrauliche Informationen weitergeben, wenn (i) diese dem Informationsempfänger zum Zeitpunkt der Überlassung ohne Verpflichtung zur Geheimhaltung bereits bekannt waren, (ii) die Informationen bereits veröffentlich sind oder später, ohne dass dies auf eine rechts- oder vertragswidrige Handlung des Informationsempfängers zurückzuführen ist, (iii) a party lawfully receives it from a third party without any obligation of confidentiality, (iv) the information has been independently developed by the recipient of the information, (v) statutory provisions or orders of state bodies require disclosure, or (vi) the other party has consented thereto.

The parties may be obliged by the authorities to disclose information to the other party. The obligated party shall only do so after giving prior notice to the other party, unless the obligated party has been officially ordered to maintain confidentiality. The obligated party shall make the necessary efforts to limit the information to be disclosed to what is necessary (e.g. by redacting or encrypting irrelevant information). To the extent possible under procedural law and after consultation with the other party, the obligated party shall take legal action to defend itself against a disclosure order. The costs of this (namely legal fees) shall be borne by the party whose information is affected.

The parties agree to be bound by confidentiality during the contractual relationship and for five years thereafter.

The parties acknowledge that the non-compliant use or disclosure of confidential information causes direct and irreparable damage to the other party, which cannot be fully compensated in monetary terms. The affected party therefore has a claim for injunctive relief.

10 Data protection

10.1 What principles apply to data processing by Digital Theta Trading?

Digital Theta Trading is responsible for the collection, processing and use of the personal data transmitted by the client about its employees, customers, auxiliary persons, suppliers, etc., unless it concerns order processing. In the case of order processing, Digital Theta Trading will provide the client with an order data processing contract on request.

10.2 What data does Digital Theta Trading process, for what purpose and to whom does Digital Theta Trading disclose the data?

Digital Theta Trading processes personal data that Digital Theta Trading collects from the client or from third parties involved as part of the business relationship. This includes data from publicly accessible registers or data provided to Digital Theta Trading by subcontractors or third-party providers.

Digital Theta Trading processes data primarily for the purpose of concluding or fulfilling a contract. Digital Theta Trading is also entitled to evaluate data to improve its own services and to use it for its own advertising to clients. Digital Theta Trading is also permitted to use the anonymized usage data of clients to train its own AI systems.

The data collected may be passed on by Digital Theta Trading to subcontractors or third parties for the purpose of fulfilling the contract. The customer is aware that data processing by third-party providers may be subject to their data protection guidelines.

In addition, customer data may be passed on to trust companies, legal and tax consultants, debt collection companies, web and marketing agencies, printers, newsletter tool providers, cloud providers (e.g. for the purpose of processing support tickets) etc.

For further information, please refer to Digital Theta Trading’s privacy policy ([URL]).

10.3 If data is exported abroad

Under certain circumstances, data may be exported to companies abroad. If this concerns companies in the EU/EFTA area, they are obliged to protect data to the same extent as Digital Theta Trading. If the level of data protection does not correspond to that in Switzerland, Digital Theta Trading will contractually ensure that the same level of protection is guaranteed as in Switzerland (e.g. by means of standard contractual clauses of the European Union).

11 Final provisions

11.1 May Digital Theta Trading use the client relationship as a reference?

Digital Theta Trading may state the client relationship as a reference in offers for other clients, unless the client expressly objects to this. The client’s consent will be obtained before Digital Theta Trading publishes the client relationship on the website or otherwise.

11.2 How does communication between the parties take place?

Notifications regarding the exercise of rights and obligations arising from the contractual relationship must be sent to the other contracting party in text form (e-mail is sufficient).

11.3 Under what circumstances may Digital Theta Trading amend the GTC?

Digital Theta Trading is entitled to amend these GTC at any time. The client will be notified of the changes in text form. They shall be deemed approved if the client does not object in writing within four weeks of notification of the amendment.

11.4 How does a contract amendment between the parties take place?

Amendments or additions to contractual agreements must be made in writing in order to be valid. This formal requirement can only be waived in writing.

11.5 May the parties transfer their rights and obligations under the contract to third parties?

Digital Theta Trading may transfer the contractual relationship to a third party in the event of restructuring. If the transfer is made for other reasons, Digital Theta Trading will request the client’s consent in advance.

The transfer of individual rights and obligations from the contractual relationship or the same by the customer to a third party requires the prior consent of Digital Theta Trading in order to be valid.

11.6 What happens if a contractual clause is invalid?

Should individual provisions of these GTC prove to be void or ineffective, this shall not affect the validity of the remaining provisions. The parties shall adapt the provisions concerned in such a way that the purpose intended by the invalid or ineffective part is achieved as far as possible.

11.7 Which law and which place of jurisdiction apply in the event of disputes?

The contractual relationship between Digital Theta Trading and the customer shall be governed exclusively by Swiss law, to the exclusion of the Vienna Sales Convention.

All disputes, differences of opinion or claims arising out of or in connection with these GTC and the underlying contract, including their validity, invalidity, breach or termination, shall be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre. The version of the Rules in force at the time the Notice of Arbitration is filed shall apply.

The arbitration tribunal shall consist of three members.

The seat of the arbitration shall be the City of Bern, Switzerland.

The language of the arbitration proceedings is German.