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General Terms & Conditions for Enterprise Customers

smartNsales AG, version 0.3

1. Scope of Application

1.1 These General Terms and Conditions for Customers (“GTC”) govern the contractual relationship between smartNsales AG (“smartNsales”) and the legal entity identified as customer in the applicable Order Form (“Customer”) in connection with the provision and use of the Services.

1.2 These GTC apply exclusively to Customers acting in the course of their commercial or independent professional activities and do not apply to consumers.

1.3 These GTC constitute an integral part of the Agreement.

1.4 Any general terms and conditions, purchasing conditions, procurement terms or other standard terms of the Customer shall not apply unless expressly accepted by smartNsales in writing. Any terms contained in a purchase order, vendor portal, procurement platform or other Customer document shall be for administrative purposes only and shall not modify or supplement the Agreement unless expressly accepted by smartNsales in writing.

1.5 Any deviation from these GTC must be expressly agreed between the Parties in writing.

2. Definitions

For purposes of the Agreement:

“Affiliate”
means any entity that directly or indirectly controls, is controlled by or is under common control with a Party, where “control” means direct or indirect ownership or control of more than fifty per cent (50%) of the voting interests or equivalent power to direct the management of such entity.
“Agreement”
means the contractual relationship between smartNsales and the Customer comprising the applicable Order Form, any Master Services Agreement (“MSA”), these GTC, the Data Processing Agreement, the AI Addendum where applicable, and any other document expressly incorporated by reference.
“Aggregated Data”
has the meaning set out in Section 13.
“AI Features”
means functionality within the Services incorporating artificial intelligence, machine learning, large language models or comparable technologies.
“AI Outputs”
means content generated through AI Features, including analyses, summaries, recommendations, classifications, forecasts, drafts and responses.
“Authorised User”
means a natural person authorised by the Customer to access and use the Services in accordance with the Agreement.
“Beta Services”
means features, functionality or services designated by smartNsales as beta, preview, early access, experimental, evaluation, test or by a designation of similar meaning.
“Confidential Information”
has the meaning set out in Section 22.
“Connected System”
means any third-party application, database, enterprise system, API, data platform, document repository or other external system connected to or accessed through the Services at the direction or authorisation of the Customer.
“Customer Data”
means all data, documents, files, information and other content submitted, uploaded, imported, connected, transmitted or otherwise provided to the Services by or on behalf of the Customer or its Authorised Users.
“Documentation”
means documentation, instructions and materials made available by smartNsales concerning the use of the Services.
“Evaluation Services”
means Services provided on a trial, pilot, evaluation or proof-of-concept basis.
“Fees”
means the fees payable by the Customer under the applicable Order Form.
“Feedback”
means suggestions, ideas, recommendations or other feedback voluntarily provided by the Customer or its Authorised Users concerning the Services.
“Intellectual Property Rights”
means patents, copyrights, database rights, design rights, trademarks, trade names, trade secrets, know-how and all other intellectual or industrial property rights, whether registered or unregistered.
“Market Intelligence”
has the meaning set out in Section 18.
“Order Form”
means an ordering document, proposal, statement of work or other commercial document executed by the Parties specifying the Services purchased by the Customer and the applicable commercial terms.
“Party”
means smartNsales or the Customer individually and “Parties” means both collectively.
“Personal Data”
means personal data or personal information as defined under applicable Data Protection Law.
“Professional Services”
means implementation, configuration, onboarding, migration, integration, training, consulting or other professional services provided by smartNsales.
“Services”
means the smartNsales software platform and any related products, functionality and services purchased or otherwise made available to the Customer under an Order Form.
“Subscription Term”
means the period during which the Customer is entitled to use the Services under the applicable Order Form.
“Usage Data”
means technical and operational metadata concerning the use, performance and operation of the Services, including feature utilisation, system performance, errors, latency, authentication events and API utilisation, but excluding the substantive content of Customer Data, prompts, documents and AI Outputs except where such information has been aggregated or de-identified in accordance with Section 13.

3. Contractual Framework and Precedence

3.1 The Agreement may comprise:

  1. the applicable Order Form;
  2. an MSA, where executed;
  3. these GTC;
  4. the smartNsales Data Processing Agreement (“DPA”);
  5. the smartNsales AI Addendum, where applicable; and
  6. other documents expressly incorporated into the Agreement.

3.2 In the event of any inconsistency, the following order of precedence shall apply:

  1. the applicable Order Form;
  2. the MSA;
  3. the DPA, solely with respect to matters concerning the Processing of Personal Data;
  4. the AI Addendum, solely with respect to matters specifically concerning AI Features; and
  5. these GTC.

3.3 A Customer-specific amendment shall apply only to the Agreement in which it is expressly incorporated and shall not amend these GTC generally.

3.4 An Order Form shall modify or supersede another Order Form only to the extent expressly stated therein. Unless expressly provided otherwise, multiple Order Forms may remain in force concurrently.

4. Services

4.1 smartNsales provides a Software-as-a-Service platform for commercial teams, including functionality relating to key account management, commercial planning, activation and promotional planning, agreements and commercial terms, trade investments, performance analysis, Market Intelligence, document processing, analytics, artificial intelligence, commercial recommendations, meeting preparation, workflows and related activities.

4.2 The specific Services and subscription scope purchased by the Customer shall be specified in the applicable Order Form.

4.3 smartNsales may develop, modify and improve the Services from time to time in accordance with the Agreement.

5. Right of Use

5.1 Subject to payment of the Fees and compliance with the Agreement, smartNsales grants the Customer for the Subscription Term a limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Services specified in the applicable Order Form solely for the Customer’s internal business purposes.

5.2 No ownership rights in the Services or smartNsales Intellectual Property are transferred to the Customer.

5.3 All rights not expressly granted under the Agreement are reserved by smartNsales and its licensors.

6. Authorised Users and User Accounts

6.1 Access to the Services shall be limited to Authorised Users within the subscription scope specified in the applicable Order Form.

6.2 Each Authorised User shall use an individual user account. User accounts and authentication credentials are personal and may not be shared among multiple individuals.

6.3 The Customer and its Authorised Users shall not:

  1. share usernames, passwords, authentication credentials or access tokens;
  2. permit multiple individuals to use a single user account;
  3. provide access to any unauthorised individual;
  4. use another individual’s account;
  5. circumvent applicable user, seat or subscription limitations; or
  6. create or maintain accounts for the purpose of avoiding applicable Fees or contractual limitations.

6.4 The Customer shall be responsible for all acts and omissions of its Authorised Users in connection with the Services.

6.5 The Customer shall maintain appropriate security over authentication credentials and shall promptly notify smartNsales of any known or reasonably suspected unauthorised access or compromise.

7. Customer Administrators and Authorised Contacts

7.1 The Customer may designate one or more administrators or authorised contacts for purposes of managing the Customer’s use of the Services.

7.2 smartNsales may reasonably rely upon instructions, approvals, configuration decisions and requests received from persons designated by the Customer as administrators or authorised contacts.

7.3 The Customer is responsible for maintaining accurate and current administrator and contact information and for promptly revoking access or authority where appropriate.

7.4 smartNsales shall not be responsible for actions taken in reasonable reliance upon instructions from a person whom the Customer has designated or represented as authorised.

8. Subscription Scope and Usage Limits

8.1 The Customer’s right to use the Services is subject to the subscription scope and any applicable usage limitations specified in the applicable Order Form.

8.2 Such limitations may include Authorised Users, workspaces, accounts, entities, modules, storage, data volumes, API requests, AI usage, Market Intelligence, integrations or other usage metrics.

8.3 The Customer shall not circumvent or attempt to circumvent such limitations.

8.4 Where Customer usage materially exceeds the purchased subscription scope, smartNsales may require the Customer to purchase additional capacity or adjust the applicable subscription.

8.5 Any additional Fees shall be subject to the Agreement or otherwise agreed between the Parties.

9. Affiliates

9.1 Affiliates of the Customer shall not be entitled to access or use the Services unless expressly included in the applicable Order Form or otherwise authorised by smartNsales in writing.

9.2 Where an Affiliate uses the Services under the Customer’s Agreement, the Customer shall remain responsible for such Affiliate’s and its Authorised Users’ compliance with the Agreement.

9.3 smartNsales and a Customer Affiliate may alternatively execute a separate Order Form, in which case such Order Form shall constitute a separate contractual relationship.

10. Customer Obligations and Cooperation

10.1 The Customer shall:

  1. use the Services in accordance with the Agreement and applicable law;
  2. be responsible for its Authorised Users;
  3. be responsible for the accuracy, integrity, quality and legality of Customer Data;
  4. obtain all rights, permissions, consents and lawful bases required for Customer Data;
  5. appropriately configure user access and permissions;
  6. maintain appropriate security over its accounts and credentials;
  7. provide smartNsales with such information, data, access, personnel, decisions and cooperation as may reasonably be required for the provision of the Services or Professional Services; and
  8. review and validate information generated through the Services where appropriate.

10.2 Where smartNsales’ performance depends upon information, access, decisions, cooperation or other dependencies to be provided by the Customer, smartNsales shall not be responsible for delays or failures caused by the Customer’s failure to provide such dependencies in a timely and adequate manner.

10.3 Any agreed timetable or implementation date shall be extended to the extent reasonably necessary as a result of Customer-caused delay.

10.4 The Customer remains responsible for commercial, financial, operational and other decisions made using the Services.

11. Restrictions on Use

11.1 The Customer and its Authorised Users shall not, directly or indirectly:

  1. use the Services in violation of applicable law;
  2. access or attempt to access another customer’s workspace, accounts or Customer Data;
  3. circumvent authentication, authorisation, security or access controls;
  4. interfere with the integrity, security, performance or availability of the Services;
  5. introduce malicious code, viruses, malware or other harmful technology;
  6. conduct penetration testing, vulnerability scanning or other security testing without smartNsales’ prior written authorisation;
  7. reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, underlying structure, algorithms or non-public technical components of the Services, except to the extent expressly permitted by mandatory law;
  8. scrape, crawl, harvest or systematically extract data from the Services except through functionality or APIs expressly authorised by smartNsales;
  9. extract or attempt to discover proprietary prompts, system instructions, AI workflows, models, algorithms or other non-public components;
  10. copy, modify or create derivative works of the Services except as expressly authorised;
  11. resell, sublicense, rent, lease or otherwise commercially redistribute access to the Services;
  12. systematically reproduce, redistribute, sublicense or resell proprietary Market Intelligence or datasets;
  13. use smartNsales Intellectual Property, proprietary datasets or non-public information for competitive analysis or to develop, train or materially improve a competing product or service;
  14. circumvent user, feature, API, storage, AI, data or subscription limitations;
  15. use unauthorised automated agents, bots or systems to access the Services; or
  16. use the Services in a manner reasonably likely to materially harm smartNsales, another customer or a third party.

11.2 smartNsales may suspend affected access in accordance with Section 33 where it reasonably determines that this Section has been materially violated.

12. Customer Data

12.1 Ownership of Customer Data

As between the Parties, the Customer shall retain all right, title and interest in and to Customer Data. smartNsales does not acquire any ownership rights in Customer Data.

12.2 Licence and Permitted Processing of Customer Data

The Customer grants smartNsales, for the duration of the Agreement, a non-exclusive, worldwide, royalty-free licence to host, reproduce, transmit, process, analyse, display and otherwise use Customer Data solely to the extent reasonably necessary to:

  1. provide, operate and maintain the Services;
  2. perform instructions of the Customer and its Authorised Users;
  3. provide functionality, including AI Features, requested by the Customer or its Authorised Users;
  4. provide technical support and troubleshoot the Services;
  5. maintain the security, integrity and reliability of the Services;
  6. detect and prevent fraud, abuse and security incidents;
  7. comply with applicable law and binding orders of competent authorities; and
  8. otherwise perform smartNsales’ obligations under the Agreement.

Except as expressly permitted under the Agreement, smartNsales shall not use Customer Data for its own independent commercial purposes.

smartNsales shall not sell Customer Data, use Customer Data for advertising purposes or disclose Customer Data to other smartNsales customers.

12.3 Processing by Service Providers

smartNsales may permit authorised service providers and subprocessors to process Customer Data solely to the extent reasonably necessary for the provision, operation, security or support of the Services.

Such providers shall be subject to appropriate contractual obligations concerning confidentiality, security and data protection.

To the extent Customer Data contains Personal Data processed by smartNsales on behalf of the Customer, such Processing shall be governed by the DPA.

12.4 Confidentiality and Access

Customer Data constitutes Confidential Information of the Customer.

Access by smartNsales personnel to Customer Data shall be restricted to authorised personnel with a legitimate need for such access for purposes relating to the provision, support, maintenance, security or operation of the Services or as otherwise permitted under the Agreement.

Such personnel shall be subject to appropriate confidentiality obligations and access controls.

12.5 Customer Responsibility for Customer Data

The Customer represents and warrants that it has all rights, permissions, consents and lawful bases necessary to provide Customer Data to smartNsales and permit its Processing in accordance with the Agreement.

13. Aggregated Data and Usage Data

13.1 Aggregated Data

smartNsales may generate statistical, analytical, aggregated or de-identified information derived from or relating to the Customer’s use of the Services (“Aggregated Data”).

smartNsales may use Aggregated Data for purposes including:

  1. operating, maintaining, securing and improving the Services;
  2. monitoring performance and reliability;
  3. analysing feature usage and adoption;
  4. developing and improving functionality;
  5. conducting internal research and analytics;
  6. improving analytics and recommendations; and
  7. identifying general usage, commercial and market trends.

13.2 De-identification Requirements

Aggregated Data shall not identify the Customer, an Authorised User or an identifiable natural person and shall not disclose or permit the reasonable reconstruction of Customer Confidential Information.

smartNsales shall not use Aggregated Data to disclose to another customer identifiable or confidential information concerning the Customer’s sales performance, pricing, margins, trade terms, trade investments, promotional strategy, customer relationships, agreements, forecasts or commercial strategy.

smartNsales shall not attempt to re-identify Aggregated Data except where technically necessary to verify the effectiveness of de-identification measures or where required by applicable law.

13.3 Usage Data

smartNsales may collect and use Usage Data for purposes including operating, securing, monitoring, supporting, analysing and improving the Services.

Usage Data shall not include the substantive content of Customer documents, prompts, AI Outputs or other Customer Data unless such information has been aggregated or de-identified in accordance with this Section.

13.4 Retention

smartNsales may retain and use Aggregated Data and Usage Data following expiration or termination of the Agreement, provided that the requirements of this Section continue to be satisfied.

Nothing in this Section permits smartNsales to sell, license or disclose identifiable Customer Data to third parties for their independent commercial purposes.

14. Artificial Intelligence

14.1 AI Features

Certain Services may incorporate AI Features.

AI Features may process Customer Data to the extent necessary to provide functionality requested by the Customer or its Authorised Users, including document analysis, information extraction, summarisation, classification, recommendations, commercial analysis, search, meeting preparation and other AI-assisted functionality.

Use of AI Features may additionally be governed by the AI Addendum.

14.2 Processing of Customer Data by AI Features

Customer Data processed through AI Features remains subject to the ownership, confidentiality, security and data protection provisions of the Agreement.

smartNsales shall not use Customer Confidential Information to train general-purpose artificial intelligence models for the benefit of unrelated customers or third parties.

Customer Data submitted to AI Features shall not be made available to other smartNsales customers.

Where smartNsales engages third-party artificial intelligence providers, Customer Data may be transmitted to such providers solely to the extent reasonably necessary to provide the relevant functionality and subject to applicable contractual, confidentiality, security and data protection safeguards.

Processing of Personal Data by such providers shall additionally be governed by the DPA.

14.3 Improvement of the Services

smartNsales may use Aggregated Data, de-identified information, Usage Data and Feedback to operate, develop and improve the Services, including AI Features, provided that such use does not disclose or permit the reasonable reconstruction of Customer Confidential Information.

Nothing in this Section grants smartNsales a general right to use identifiable Customer Confidential Information to train general-purpose artificial intelligence models for the benefit of unrelated customers or third parties.

14.4 AI Outputs

AI Outputs may be inaccurate, incomplete, outdated or otherwise unsuitable for a particular purpose.

The Customer shall be responsible for reviewing and validating AI Outputs before relying upon them for material commercial, financial, legal or operational decisions.

AI Features are intended to support and not replace appropriate human judgement.

14.5 Rights in AI Outputs

Subject to applicable law, third-party rights and the Agreement, the Customer may use AI Outputs generated specifically for the Customer for its internal business purposes.

AI Outputs may not be unique and the same or similar outputs may be generated for other customers or users.

No rights in smartNsales’ underlying software, models, algorithms, prompts, system instructions, methodologies, workflows or other Intellectual Property are transferred to the Customer by virtue of the generation or use of AI Outputs.

15. Professional Services and Implementation

15.1 Where specified in an Order Form, smartNsales may provide Professional Services.

15.2 The scope, assumptions, deliverables, timetable and Fees applicable to Professional Services shall be as specified in the applicable Order Form.

15.3 The Customer shall provide timely access to personnel, systems, information, Customer Data, Connected Systems, decisions, approvals and other resources reasonably required for the performance of Professional Services.

15.4 smartNsales shall not be responsible for delays, additional work or failure to meet an agreed timetable to the extent caused by:

  1. delayed or incomplete Customer cooperation;
  2. inaccurate, incomplete or inconsistent Customer Data;
  3. changes in Customer requirements;
  4. Customer systems or Connected Systems;
  5. third-party providers; or
  6. circumstances otherwise outside smartNsales’ reasonable control.

15.5 Any material extension or modification of the agreed Services, Professional Services, modules, implementation scope or other commercial scope shall be documented in a new or amended Order Form.

16. Data Imports and Migration

16.1 The Services may permit the Customer to import, upload, migrate or connect information from spreadsheets, files, databases, Connected Systems and other sources.

16.2 The Customer remains responsible for the accuracy, completeness, consistency, quality and legality of source data provided to smartNsales.

16.3 smartNsales shall not be responsible for errors, omissions, inconsistencies or inaccuracies existing in Customer source data before its import or resulting from mappings, classifications, configurations or instructions supplied or approved by the Customer.

16.4 Where smartNsales provides automated extraction, mapping, classification or migration functionality, including through AI Features, the Customer shall reasonably review and validate material imported information before relying upon it.

17. Connected Systems and Third-Party Services

17.1 Connected Systems

The Services may integrate with or retrieve information from Connected Systems authorised by the Customer.

Connected Systems may include enterprise resource planning systems, customer relationship management systems, data warehouses, business intelligence systems, document repositories and other systems used by the Customer as authoritative sources of business information.

17.2 Read-Only Access

Unless expressly agreed otherwise in writing, smartNsales accesses Connected Systems on a read-only basis.

smartNsales shall not, through such integration:

  1. create records within a Connected System;
  2. modify or overwrite records within a Connected System;
  3. delete records or files within a Connected System;
  4. alter the configuration of a Connected System; or
  5. otherwise modify the underlying source data maintained in a Connected System.

Data retrieved from a Connected System may be copied, structured, indexed, analysed, enriched or otherwise processed within the Services in accordance with the Agreement, but the underlying records maintained in the Connected System shall remain unaffected.

17.3 Customer Authorisation

By enabling or authorising a Connected System, the Customer authorises smartNsales to access and retrieve the information made available through that integration to the extent reasonably necessary to provide the Services.

The Customer represents and warrants that it has all rights and permissions required to connect the relevant Connected System and permit smartNsales to access and process the information made available through it.

17.4 Independent Third-Party Services

Connected Systems and other independent third-party products and services remain subject to the contractual terms between the Customer and the relevant third-party provider.

smartNsales shall not be responsible for the availability, integrity, accuracy, security or operation of a Connected System to the extent outside smartNsales’ reasonable control.

17.5 Changes to Connected Systems

smartNsales shall not be responsible for failures or limitations resulting from changes by third-party providers to APIs, authentication mechanisms, data structures, access permissions or other technical interfaces outside smartNsales’ reasonable control.

18. Market Intelligence

18.1 The Services may provide commercial, market, retailer, competitor, product, pricing, promotional, distribution or other information (“Market Intelligence”).

18.2 Market Intelligence may be derived from publicly available information, licensed datasets, third-party providers, smartNsales proprietary datasets, automated data collection, analytical models and other lawful sources.

Where Customer Data contributes to Market Intelligence or analytical functionality, such Customer Data shall be used solely for purposes of providing the relevant Services to that Customer unless otherwise expressly permitted under the Agreement.

18.3 Market Intelligence is provided for informational, analytical and commercial decision-support purposes unless expressly agreed otherwise.

18.4 Market Intelligence may contain inaccuracies, omissions, delays or information that changes over time. The Customer shall remain responsible for evaluating such information before making material decisions.

18.5 Subject to the applicable subscription, the Customer may use Market Intelligence for its internal business purposes.

18.6 Unless expressly authorised by smartNsales, the Customer shall not systematically extract, reproduce, publish, sublicense, sell or redistribute proprietary Market Intelligence or datasets made available through the Services.

18.7 Customer Data shall not become smartNsales proprietary Market Intelligence merely because it is processed, analysed or displayed through the Services.

19. Application Programming Interfaces

19.1 smartNsales may make application programming interfaces (“APIs”) available as part of certain Services or subscriptions.

19.2 Access to and use of APIs shall be subject to the applicable subscription scope, Documentation and technical limitations established by smartNsales.

19.3 API credentials and access tokens shall be treated as confidential authentication credentials and shall not be disclosed to unauthorised third parties.

19.4 The Customer shall not circumvent API rate limits, security controls or other technical restrictions.

19.5 smartNsales may modify, replace or deprecate APIs from time to time. Where a change is reasonably expected to materially affect an active Customer integration, smartNsales shall use commercially reasonable efforts to provide reasonable prior notice where practicable.

20. Intellectual Property of smartNsales

20.1 smartNsales and its licensors shall retain all right, title and interest, including all Intellectual Property Rights, in and to:

  1. the Services;
  2. software and source code;
  3. platform architecture;
  4. interfaces and designs;
  5. algorithms;
  6. AI workflows, prompts and system instructions;
  7. models;
  8. methodologies;
  9. data models, structures and schemas;
  10. proprietary datasets and Market Intelligence;
  11. Documentation;
  12. smartNsales names, logos and trademarks; and
  13. modifications, enhancements, improvements and derivative developments of the foregoing.

20.2 smartNsales Intellectual Property does not include Customer Data.

20.3 Except for the rights expressly granted under the Agreement, no licence or other right in smartNsales Intellectual Property is granted to the Customer.

21. Feedback

21.1 Where the Customer or an Authorised User voluntarily provides Feedback, smartNsales may use such Feedback without restriction or compensation for purposes including developing, improving, commercialising and operating the Services.

21.2 smartNsales shall not exercise such rights in a manner that discloses Customer Confidential Information.

22. Confidentiality

22.1 “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, visually, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential having regard to the nature of the information and circumstances of disclosure.

22.2 Confidential Information includes Customer Data, non-public aspects of the Services, commercial terms of the Agreement, business plans, pricing, product plans, technical information, security information, business processes and trade secrets.

22.3 The Receiving Party shall:

  1. use Confidential Information solely for purposes connected with the Agreement;
  2. protect it using at least reasonable care and no less than the care used to protect its own confidential information of similar importance; and
  3. disclose it only to personnel, Affiliates, professional advisers and service providers who have a need to know and are subject to appropriate confidentiality obligations.

22.4 Confidential Information does not include information that the Receiving Party can demonstrate:

  1. is or becomes publicly available without breach of the Agreement;
  2. was lawfully known to it without confidentiality restriction;
  3. was independently developed without use of the Disclosing Party’s Confidential Information; or
  4. was lawfully received from a third party without confidentiality restriction.

22.5 Where disclosure is required by applicable law or a competent authority, the Receiving Party may disclose the required information, provided that, where legally permitted, it gives the Disclosing Party reasonable prior notice.

22.6 The obligations under this Section shall survive expiration or termination of the Agreement for five (5) years. Notwithstanding the foregoing, obligations relating to Customer Data, Personal Data and trade secrets shall continue for so long as such information remains confidential or protected under applicable law.

23. Data Protection

23.1 Each Party shall comply with applicable Data Protection Law, including, where applicable, the Swiss Federal Act on Data Protection (“FADP”) and Regulation (EU) 2016/679 (“GDPR”).

23.2 To the extent smartNsales Processes Personal Data on behalf of the Customer, smartNsales shall act as Processor or Subprocessor, as applicable, and such Processing shall be governed by the DPA.

23.3 The Customer remains responsible for the lawfulness of its collection and Processing of Personal Data and for its instructions to smartNsales.

23.4 smartNsales may engage subprocessors in accordance with the DPA.

23.5 Processing of Personal Data by smartNsales as an independent Controller shall be governed by the smartNsales Privacy Policy.

24. Information Security

24.1 smartNsales shall maintain appropriate technical and organisational measures designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access.

24.2 Such measures shall take into account the nature of the Processing, the risks associated with the Processing and generally accepted security practices appropriate to the Services.

24.3 Further information concerning smartNsales’ security controls may be made available through the smartNsales Trust Center and applicable security documentation.

24.4 No Internet-based information system can guarantee absolute security, and smartNsales does not warrant that security incidents will never occur.

25. Beta Services

25.1 smartNsales may make Beta Services available to the Customer from time to time.

25.2 Use of Beta Services is voluntary unless expressly agreed otherwise.

25.3 Beta Services may be incomplete, contain errors, be subject to additional limitations, change materially during development or be discontinued.

25.4 Unless expressly agreed otherwise in an Order Form, Beta Services are provided on an “as is” and “as available” basis and are excluded from service levels, availability commitments and warranties applicable to generally available Services to the maximum extent permitted by applicable law.

25.5 smartNsales may modify, suspend or discontinue Beta Services at any time.

25.6 Nothing relating to Beta Services constitutes a commitment that such functionality will become generally available or form part of any future version of the Services.

25.7 The provisions of the Agreement concerning confidentiality, Customer Data, data protection, security, Intellectual Property Rights, restrictions on use and limitation of liability shall continue to apply to Beta Services.

26. Evaluation Services

26.1 smartNsales may provide Services on a trial, pilot, evaluation or proof-of-concept basis.

26.2 The scope, duration, Fees, if any, and other commercial conditions applicable to Evaluation Services shall be specified in the applicable Order Form.

26.3 Evaluation Services may include limited, Beta or otherwise restricted functionality.

26.4 Unless expressly agreed otherwise, expiration of an Evaluation Service does not entitle the Customer to continued access to the Services.

26.5 Any subsequent commercial subscription shall be subject to a new Order Form.

26.6 To the maximum extent permitted by applicable law and unless expressly agreed otherwise in the applicable Order Form, Evaluation Services are provided on an “as is” and “as available” basis without warranties concerning uninterrupted availability, fitness for a particular purpose or achievement of any particular evaluation, business or commercial outcome.

26.7 The provisions of the Agreement concerning confidentiality, Customer Data, data protection, security, Intellectual Property Rights, restrictions on use and limitation of liability shall apply to Evaluation Services.

27. Product Development and Roadmap

27.1 smartNsales may communicate information concerning planned, proposed or potential functionality, developments, integrations, products or services.

27.2 Unless expressly included as a binding commitment in an applicable Order Form or MSA, any roadmap, prototype, demonstration, presentation, statement concerning future functionality or expected release date is provided for informational purposes only and does not constitute a contractual commitment.

27.3 The Customer shall not base its purchase obligation on the delivery of future functionality unless such functionality is expressly identified as a contractual commitment in the applicable Order Form.

28. Availability, Maintenance and Support

28.1 smartNsales shall use commercially reasonable efforts to make the Services available during the Subscription Term.

28.2 Unless expressly agreed otherwise in an Order Form or MSA, smartNsales does not guarantee uninterrupted or error-free availability or any specific availability percentage.

28.3 smartNsales may perform scheduled and emergency maintenance. Where reasonably practicable, smartNsales shall provide advance notice of scheduled maintenance expected to materially affect availability.

28.4 Support shall be provided in accordance with the applicable subscription and Order Form.

28.5 Unless expressly agreed otherwise, support response times constitute targets and not guaranteed service levels.

29. Fees, Invoicing and Taxes

29.1 The Customer shall pay the Fees specified in the applicable Order Form.

29.2 Unless otherwise specified in the Order Form:

  1. Fees are exclusive of VAT and other applicable taxes;
  2. the Customer shall be responsible for applicable transaction, sales, use, value-added and similar taxes, excluding taxes imposed on smartNsales’ net income;
  3. invoices shall be payable within the payment period specified in the Order Form; and
  4. Fees are non-refundable except as expressly provided in the Agreement.

29.3 Where the Customer is required by applicable law to make a withholding or deduction from a payment, the Customer shall provide smartNsales with appropriate documentation evidencing such withholding and reasonably cooperate in obtaining any available exemption, reduction or tax credit.

29.4 The Customer shall not offset or withhold amounts due to smartNsales except where required by mandatory law or expressly agreed in writing.

29.5 If any undisputed amount remains unpaid when due, smartNsales may issue written notice requiring payment. If the Customer fails to pay such amount within fifteen (15) days following receipt of such notice, smartNsales may suspend the affected Services in accordance with Section 33 and exercise any other rights available under the Agreement or applicable law.

29.6 Suspension or other enforcement measures relating to overdue amounts shall not relieve the Customer of its obligation to pay Fees properly due.

29.7 Where the Customer requires a purchase order or other internal procurement reference, the Customer shall provide it in a timely manner. Failure to issue or provide an internal purchase order, procurement reference or similar administrative document shall not relieve the Customer of its payment obligations under an executed Order Form.

30. Subscription Term and Renewal

30.1 The initial Subscription Term shall be specified in the applicable Order Form.

30.2 Any renewal, automatic renewal, renewal period and applicable notice period shall be governed exclusively by the applicable Order Form or MSA.

30.3 Unless otherwise expressly agreed, termination or expiration of one Order Form shall not affect any other Order Form then in force between the Parties.

31. Warranties

31.1 Each Party warrants that it has authority to enter into the Agreement.

31.2 smartNsales warrants that:

  1. it shall perform the Services professionally and with reasonable care; and
  2. it owns or has sufficient rights to provide the Services in accordance with the Agreement.

31.3 Except as expressly provided in the Agreement and to the maximum extent permitted by applicable law, smartNsales makes no warranty that:

  1. the Services will operate uninterrupted or error-free;
  2. every defect will be corrected;
  3. AI Outputs will be accurate, complete or suitable for a particular purpose;
  4. Market Intelligence will be complete, current or accurate;
  5. information imported from Connected Systems or third-party sources will be accurate or complete; or
  6. use of the Services will achieve any particular commercial outcome.

32. Reliance on Outputs and Information

32.1 The Services, including AI Outputs, Market Intelligence, forecasts, analyses, recommendations and other information generated or presented through the Services, are intended to support commercial decision-making.

32.2 The Services do not constitute legal, tax, accounting, investment or other regulated professional advice.

32.3 The Customer remains responsible for reviewing information and for decisions taken using the Services, including decisions concerning pricing, customer negotiations, trade investments, promotions, forecasts, budgets and commercial strategy.

33. Suspension

33.1 smartNsales may suspend or restrict access to the Services where reasonably necessary if:

  1. the Customer materially breaches the Agreement;
  2. material undisputed Fees remain unpaid for fifteen (15) days following written notice requiring payment;
  3. smartNsales reasonably suspects fraudulent, abusive or unauthorised use;
  4. account credentials have been compromised;
  5. Customer activity creates a material security risk;
  6. use of the Services may violate applicable law or a binding order of a competent authority; or
  7. Customer activity materially threatens the security, integrity or availability of the Services.

33.2 Where reasonably practicable, smartNsales shall provide prior notice and a reasonable opportunity to remedy the relevant issue.

33.3 Any suspension shall, where reasonably practicable, be limited to the affected account, functionality or activity.

34. Indemnification

34.1 Indemnification by smartNsales

smartNsales shall defend the Customer against third-party claims alleging that the Customer’s authorised use of the Services infringes or misappropriates a third party’s Intellectual Property Rights and shall indemnify the Customer against damages finally awarded by a competent court or settlements approved by smartNsales arising from such claims.

This obligation shall not apply to claims resulting from:

  1. Customer Data;
  2. modifications not made by smartNsales;
  3. combinations with products, services or technology not provided or approved by smartNsales;
  4. use contrary to the Agreement or Documentation; or
  5. continued allegedly infringing use after smartNsales has made available a reasonable non-infringing alternative.

Where such a claim materially affects the Services, smartNsales may, at its option:

  1. procure the right for continued use;
  2. modify or replace the affected functionality with substantially equivalent non-infringing functionality; or
  3. terminate the affected Services and refund prepaid Fees attributable to the unused portion of the affected Subscription Term.

34.2 Indemnification by Customer

The Customer shall defend and indemnify smartNsales against third-party claims arising from:

  1. Customer Data infringing or misappropriating third-party rights;
  2. unlawful use of the Services by the Customer or its Authorised Users; or
  3. a material breach of Section 11.

34.3 Procedure

The indemnified Party shall:

  1. promptly notify the indemnifying Party of the claim;
  2. provide reasonable cooperation; and
  3. permit the indemnifying Party to control the defence and settlement, provided that no settlement admitting liability or imposing material non-monetary obligations on the indemnified Party may be entered into without its reasonable consent.

35. Limitation of Liability

35.1 To the maximum extent permitted by applicable law, neither Party shall be liable for indirect, incidental, consequential, exemplary, punitive or special damages, or for loss of profits, revenue, anticipated savings, goodwill, business opportunity or business interruption.

35.2 Unless otherwise expressly agreed in an Order Form or MSA, each Party’s aggregate liability arising out of or in connection with the Agreement shall not exceed the Fees paid or payable by the Customer to smartNsales during the twelve (12) months immediately preceding the event giving rise to the relevant claim.

35.3 Loss of Customer Data

To the maximum extent permitted by applicable law, smartNsales shall not be liable for the loss, alteration, corruption, destruction or inability to restore Customer Data, except to the extent directly caused by smartNsales’ wilful misconduct or gross negligence.

The Customer remains responsible for maintaining such independent copies, records or source-system data as are reasonably appropriate having regard to the nature and importance of the relevant Customer Data.

smartNsales shall not be liable for loss or corruption of data resulting from acts or omissions of the Customer, its Authorised Users, Connected Systems, third-party integrations, external data sources or circumstances outside smartNsales’ reasonable control.

35.4 The exclusions and limitations set out in this Section shall not apply to liability to the extent such liability cannot lawfully be excluded or limited, including liability arising from fraud, wilful misconduct or gross negligence.

35.5 Nothing in this Section limits the Customer’s obligation to pay Fees properly due under the Agreement.

36. Publicity

36.1 During the Subscription Term, smartNsales may identify the Customer as a smartNsales customer and use the Customer’s name and logo in customer lists, presentations and similar marketing and sales materials.

36.2 smartNsales shall use the Customer’s name and logo in accordance with any reasonable brand guidelines made available to smartNsales.

36.3 The Customer may request in writing that smartNsales discontinue future use of its name and logo.

36.4 Any detailed case study, testimonial or public statement concerning Customer results shall require the Customer’s prior approval.

37. Termination for Cause

37.1 Either Party may terminate the Agreement for material breach if the breaching Party fails to remedy a remediable breach within thirty (30) days following written notice specifying the breach.

37.2 The foregoing thirty (30)-day cure period does not affect smartNsales’ right to suspend Services for non-payment following the fifteen (15)-day period specified in Section 29.

37.3 Either Party may terminate the Agreement with immediate effect where the other Party becomes insolvent, enters liquidation or ceases substantially all of its business, subject to applicable insolvency law.

37.4 Additional termination rights may be specified in the applicable Order Form or MSA.

38. Consequences of Expiration or Termination

38.1 Upon expiration or termination of the applicable subscription, the Customer’s right to use the affected Services shall cease.

38.2 Upon written request submitted within thirty (30) days following expiration or termination of the applicable Services, smartNsales shall make Customer Data available for export in a commonly used format where technically practicable.

38.3 Following expiry of such thirty (30)-day period, smartNsales shall be entitled to remove Customer Data from its active systems. Customer Data shall be deleted from active systems no later than ninety (90) days following expiration or termination of the applicable Services, unless continued retention is required by applicable law or expressly agreed between the Parties.

38.4 Customer Data may remain in encrypted or otherwise protected backup systems following deletion from active systems until such backups are overwritten or deleted in accordance with smartNsales’ ordinary backup lifecycle. Such backup copies shall not be restored or otherwise actively processed except where required for disaster recovery, security, legal compliance or comparable legitimate operational purposes.

38.5 smartNsales may retain Customer Data or other information beyond the periods specified above solely to the extent required by applicable law, a binding order of a competent authority or an applicable statutory retention obligation.

38.6 Sections which by their nature are intended to survive expiration or termination shall survive, including provisions concerning Intellectual Property Rights, Confidentiality, Aggregated Data, liability and accrued payment obligations.

39. Modifications to the Services

39.1 smartNsales may develop, modify, replace and improve the Services from time to time, including interfaces, workflows, functionality, infrastructure, AI models and third-party providers.

39.2 smartNsales shall not materially reduce the core functionality of the Services purchased by the Customer during an active Subscription Term without reasonable justification.

39.3 smartNsales may discontinue or replace functionality where reasonably necessary due to legal, security, technological or third-party dependency reasons and shall, where reasonably practicable, provide substantially equivalent functionality or reasonable prior notice.

40. Amendments to these GTC

40.1 smartNsales may amend these GTC from time to time to reflect changes in applicable law, the Services, security requirements or business practices.

40.2 The current version and effective date shall be published on the smartNsales website.

40.3 Material amendments that materially reduce the Customer’s contractual rights shall not apply during an existing Subscription Term unless:

  1. required by applicable law;
  2. agreed by the Customer; or
  3. otherwise expressly permitted under the Agreement.

40.4 Unless otherwise required by applicable law or agreed between the Parties, an updated version of these GTC shall apply to an existing Customer from commencement of its next renewal period.

41. Assignment

41.1 The Customer may not assign the Agreement, in whole or in part, without smartNsales’ prior written consent, which shall not be unreasonably withheld.

41.2 smartNsales may assign the Agreement in connection with a merger, corporate reorganisation, financing, change of control or sale of all or substantially all of the assets or business relating to the Services, provided that the successor assumes smartNsales’ applicable obligations under the Agreement.

42. Force Majeure

42.1 Neither Party shall be liable for failure or delay in performing its obligations where caused by circumstances beyond its reasonable control, including natural disasters, war, civil unrest, governmental action, widespread telecommunications or infrastructure failures, labour disruptions, cyberattacks not reasonably preventable through appropriate security measures or comparable events.

42.2 The affected Party shall use commercially reasonable efforts to mitigate the effects of the event.

42.3 Force Majeure shall not excuse payment obligations already due.

43. Injunctive Relief

43.1 Each Party acknowledges that a material breach of provisions concerning Confidential Information, Intellectual Property Rights, unauthorised access or restrictions on use may cause harm for which monetary damages may not constitute an adequate remedy.

43.2 Subject to applicable law, the affected Party shall be entitled to seek injunctive, interim or other equitable relief in addition to any other remedies available to it.

44. Relationship of the Parties

44.1 The Parties are independent contracting parties.

44.2 Nothing in the Agreement creates a partnership, joint venture, agency, employment, fiduciary or franchise relationship between the Parties.

44.3 Neither Party has authority to bind or incur obligations on behalf of the other Party unless expressly authorised in writing.

45. No Third-Party Beneficiaries

Except where expressly provided otherwise, the Agreement is for the benefit of the Parties only and does not confer contractual rights upon any third party.

46. Notices

46.1 Formal notices under the Agreement shall be delivered to the contact details specified in the applicable Order Form or MSA.

46.2 Operational, security, product and administrative communications may be delivered electronically to the Customer’s designated contacts or through the Services.

46.3 Electronic communications shall satisfy any requirement for written notice unless mandatory law requires otherwise.

47. Entire Agreement

47.1 The Agreement constitutes the entire agreement between the Parties concerning its subject matter and supersedes prior agreements, proposals, representations and discussions concerning the same subject matter.

47.2 The Customer acknowledges that it has not relied upon any representation not expressly incorporated into the Agreement.

47.3 In particular, sales presentations, demonstrations, proposals, marketing materials, roadmap statements and other pre-contractual communications shall not create contractual obligations unless expressly incorporated into an Order Form or MSA.

48. Severability and Waiver

48.1 If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

48.2 The invalid or unenforceable provision shall be replaced, to the extent permitted by applicable law, by a valid provision that most closely reflects its intended legal and commercial purpose.

48.3 Failure or delay by a Party to exercise any right shall not constitute a waiver of that right.

49. Electronic Execution and Counterparts

49.1 The Agreement and related documents may be executed electronically and in counterparts.

49.2 Electronic signatures and copies of signatures transmitted electronically shall have the same effect as original signatures to the extent permitted by applicable law.

49.3 Counterparts shall together constitute one and the same instrument.

50. Governing Law and Jurisdiction

50.1 The Agreement shall be governed exclusively by the substantive laws of Switzerland, excluding its conflict-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods.

50.2 The Parties shall use reasonable efforts to resolve disputes arising out of or in connection with the Agreement amicably and in good faith.

50.3 If no amicable resolution can be reached, the courts of Lucerne, Switzerland shall have exclusive jurisdiction over all disputes arising out of or in connection with the Agreement, subject to any mandatory place of jurisdiction under applicable law.

51. Contact

smartNsales AG
Habsburgerstrasse 32
6003 Lucerne
Switzerland
Company registration: CH-150.4.478.089-1
UID/VAT: CHE-422.097.458 MWST
Email: info@smartnsales.com