Thank you for using Phonemos by linkyard ltd.! We are excited to have you here.

These Phonemos Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of the Phonemos cloud product (Software-as-a-Service). These Terms are between you (“Customer”) and linkyard ltd. (“linkyard” or “Provider”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that:

• you have full legal authority to bind your employer or such entity to these Terms;

• you have read and understand these Terms; and

• you agree to these Terms on behalf of the party that you represent.

If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you nor use or access a Phonemos subscription set up for you. Please note that if you sign up using an email address from your employer or another entity, your actions will bind your employer or that entity to these terms and the word “you” will refer to your employer or that entity.

These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms and the Agreement may be concluded at the earliest of (a) the signature of a contract, order form or other agreement referencing these Terms, (b) the Customer's written or electronic acceptance of an offer, quotation or proposal referencing these Terms, (c) by clicking "I agree" at the time you register for Phonemos, by placing an order, paying our invoice, (d) or by using and accessing the product, whichever is earlier, in each case provided that the relevant document or process incorporates these Terms by reference.‍

1. Preamble

1.1 The Provider is the provider of Phonemos, a software product provided to you as a Software-as-a-Service (“SaaS”) service. The Customer avails itself of the SaaS services, furnished by the Provider, for the duration of the agreement.

1.2 The present agreement regulates the Provider’s SaaS services which the Provider provides to the Customer.

1.3 This Agreement may be entered into by handwritten or electronic signature, by acceptance of a signed or unsigned offer or quotation (including by e-mail or other electronic means), by click-through acceptance, or by actual use of the services, provided in each case that these Terms are incorporated by reference or otherwise made available to the Customer before or at the time of conclusion.

2. Scope of the terms

2.1 Together with the signed or otherwise accepted offer, quotation, order form or other individual agreement that expressly references these Terms, the Service Level Agreement (SLA), the Data Processing Agreement (DPA), to the extend applicable the Sub processor policy (Phonemos Cloud) and any custom service contract expressly incorporated by reference, these Terms constitute the final agreement (hereinafter referred to as "Agreement") between the customer and linkyard ltd. These Terms are an integral part of all offers, order confirmations and invoices.

2.2 The following Terms apply between the Customer and the Provider, unless otherwise specified in individual cases, mandatorily prescribed by law or expressly agreed otherwise in writing or in text form by the parties. Furthermore, by using the services of the Provider, Customers and users agree to these Terms on behalf of the Customer.

3. General subject of the Terms

3.1 This agreement applies to the use of the Phonemos Software in accordance with the current product description as a cloud offer. Phonemos is provided to the Customer by the Provider as SaaS. This includes, among other things, the provision of licences and the cloud services by the Provider to the Customer. The Customer is enabled to use the software stored and running on the servers of the Provider or a service provider commissioned by the Provider via an internet connection for his own purposes during the term of this contract.

3.2 These Terms are applicable to one or more Phonemos subscriptions (“Subscription”), each having individually applicable billing periods, pricing plans or number of users. Each Subscription may be terminated individually, though dependencies between Subscriptions may exist in special circumstances.

3.3 Unless expressly agreed otherwise in the applicable offer, quotation or order form, Phonemos is provided as a standardised service. The Provider does not owe any individual development, configuration, migration, integration or consulting services beyond the service scope expressly stated in the Agreement.

3.4 These Terms shall apply exclusively. The Customer's Terms of Service shall not apply. Counter-confirmations by the customer with reference to his own Terms and Conditions are expressly rejected.

3.5 Phonemos may not be used to store or post content that is unlawful, threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, profane, contains or depicts nudity, sexual activity or is otherwise inappropriate or illegal.

3.6 All users of the Customer working with Phonemos must follow the rules of conduct and guidelines for permitted use set out in this Section 3. If the Customer breaches this policy, creates a security or integrity risk, exposes the Provider to legal or regulatory risk, is in material payment default after reminder, or otherwise materially breaches this Agreement, the Provider may suspend access to the affected Subscription immediately to the extent reasonably necessary. Where the breach is capable of cure and immediate suspension is not reasonably required, the Provider shall grant a reasonable cure period before extraordinary termination. Any suspension or termination under this Section shall not release the Customer from its payment obligations accrued up to the effective date of termination and, to the extent the suspension is caused by the Customer, recurring fees remain payable during the suspension period.

4 License management

4.1 The Provider is obligated to obtain all requisite licences or subscriptions for the Customer required for fulfilling the present purpose of the Agreement. In so doing, the Provider either produces the licence directly and acts as licensor or, in case of third-party components, acts as reseller, intermediary or procurement agent, as the case may be. The execution of such licensing agreements, namely the payment of the licensing or subscription fees, is done through the Provider unless expressly agreed otherwise. Where third-party terms apply to third-party components, the Provider may pass such terms through to the Customer to the extent necessary for lawful use of the relevant component.

5 System environments

5.1 The Provider shall provide a fully licensed environment for production use, the scope of which shall be determined on the basis of the subscription plan set out in the signed Offer.

5.2 On request, the Provider will furnish a temporary on demand test environment to conduct integration tests or similar test types. For resource optimization, the test environment is automatically stopped after several hours of non-use. The Customer can request reactivation of the test environment.

5.3 linkyard may add new features to its Phonemos, and may modify, replace, remove, suspend or discontinue features or modules for operational, security, legal, technical or commercial reasons. During a paid Subscription term, the Provider shall not materially reduce the core functionality of the then-current Subscription plan without good cause. Where reasonably practicable, the Provider shall give prior notice of material changes.

6 System management, support and bugfixing

6.1 Restrictions or impairments of the services provided may arise which are beyond the control of the provider. This includes, in particular, actions by third parties not acting on behalf of the provider, technical conditions of the Internet that cannot be influenced by the provider, and force majeure. The hardware and software and technical infrastructure used by the Customer may also have an influence on the services of the Provider. To the extent such circumstances are outside the Provider's reasonable control and the Provider has exercised due care, any resulting impairment of availability or functionality shall not constitute a breach of contract by the Provider.

6.2 Fault management and corrective maintenance is included in every subscription plan. In the Business and Enterprise subscription plans, up to one hour of support services per month is also included. These hours cannot be cumulated. Additional product-related consulting and support services are charged at the rate specified in your contract or quote.

6.3 The Provider offers different options regarding service level (standby times/response times/system availability), backup plans and business continuity plans. Every Subscription plan includes a specific SLA level, but these can be upgraded as a paid option. The different options can be found in the Service Level Agreement (SLA), which forms an integral part of the agreement together with the signed offer and this document.

6.4 For clarification purposes, it is noted that the response times listed in the SLA refer exclusively to fault reports and support requests from the customer which are reported via the Provider's ticketing portal (https://servicedesk.linkyard.ch) or any successor support portal designated by the Provider in writing.

7 Duties of the Customer

7.1 The Customer shall support the Provider as far as reasonable in the fulfilment of the Provider's obligations under this Agreement. In the event of failure to cooperate or in the event of the Customer or third parties causing disruptions for which the Customer is responsible, the Provider shall be free to refuse the corresponding additional expenditure or to invoice the corresponding additional expenditure on a time and material basis.

7.2 Subject to these Terms and during the applicable Subscription Term, the customer may access and use the Cloud Products for his own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this Section 7.2 are non-exclusive, non-sublicensable and non-transferable.

7.3 Restrictions: Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of Phonemos; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to Phonemos to a third party; (c) use Phonemos for the benefit of any third party; (d) incorporate Phonemos into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in Phonemos intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to Phonemos, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in Phonemos; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of Phonemos; or (j) encourage or assist any third party to do any of the foregoing.

8 Payment modalities and price

8.1 The price owed by the customer for a Phonemos instance is composed of:

• A base fee for one Phonemos instance including one site, 100 GB if storage, per month

• A fee for editor licences, per user and month

• Optional: a fee per additional site, per month

• Optional: a fee per additional storage space provided, per month

• Optional: a fee per additional viewer licences, per user and month

• Optional: a fee to unlock specific optional features, per month

• Optional: fees covering other consumption-based charges, e.g. if the number of characters translated exceeds the amount included in the base fee

• One-off fees, e.g. support, integration, migration

8.2 The total price can be paid either monthly, by credit card only, or annually, by wire transfer or credit card. For non-DACH countries, wire transfer can only be accepted for payments over CHF 5'000. Wire transfer invoices are due within 30 days net.

8.3 The applicable Subscription period is determined by the billing cycle selected in the signed or accepted offer or order form (monthly or yearly). Each Subscription automatically renews for successive periods of the same length unless it is validly terminated effective at the end of the then-current Subscription period.

8.4 Monthly prices are invoiced at the end of a subscription month based on usage.

8.5 Annual prices are invoiced at the start of a subscription period for the full year. Adjustments within the subscription period are invoiced when activated until the end of the current subscription period.

8.6 All prices are exclusive of VAT and any other applicable taxes, duties and public charges. Such amounts shall be borne by the Customer in addition to the agreed fees, except for taxes on the Provider's net income.

8.7 The Customer may only set off or withhold payments with claims that are undisputed or finally adjudicated.

8.8 If the Customer is in payment default, the Provider may, after reminder and expiry of a reasonable grace period, suspend the affected Subscription until all overdue amounts have been paid in full, without prejudice to any further contractual or statutory rights.

9 Liability of the provider

9.1 Subject to mandatory law, the Provider shall be liable only for direct damages caused by its wilful misconduct or gross negligence.

9.2 To the extent permitted by Swiss law, the Provider shall not be liable for slight or medium negligence, indirect or consequential damages, loss of profit, loss of revenue, loss of goodwill, loss of savings, loss of business opportunities, or loss or corruption of data, except to the extent such loss or corruption results from the Provider's breach of an expressly agreed backup or restoration obligation.

9.3 Subject to Section 9.1 and mandatory law, the Provider's aggregate liability under or in connection with this Agreement in any contract year shall not exceed the fees paid or payable by the Customer for the affected Subscription during the twelve (12) months preceding the event giving rise to liability.

9.4 Service credits or contractual penalties under the SLA constitute the Customer's sole and exclusive monetary remedy for shortfalls in system availability, to the extent permitted by law.

10 Data protection and confidentiality

10.1 The Customer is responsible for the data processing executed through Phonemos (GDPR: "data controller"). All content uploaded and stored in a Phonemos instance is the property of the customer.

10.2 To the extent the Provider processes personal data on behalf of the Customer, the Provider shall process such data in accordance with applicable data protection law, including the Swiss Federal Act on Data Protection and, where applicable, the GDPR, in its role as processor.

10.3 The parties shall ensure that they comply with all requirements of data protection law. In particular, the Customer shall ensure that it obtains all necessary consents for data processing from persons whose personal data is processed. In the event of non-compliance, he shall indemnify the Provider in the event of claims by third parties. To the extent claims by third parties or authorities arise from the Customer's instructions, content, lack of legal basis or other breach of applicable data protection law for which the Provider is not responsible, the Customer shall indemnify and hold harmless the Provider against such claims, including reasonable external legal costs.

10.4 The Provider is obliged to

• inform the Customer as soon as possible during the term of the contract, if known, of any access to personal data by public authorities or unauthorized third parties, and

• after completion of the provision of the Processing Services, to either delete or return all data at the Customer's option.

10.5 Mandatory law which conflicts with the aforementioned obligations is reserved.

10.6 If and to the extent the Provider processes personal data on behalf of the Customer, the Data Processing Agreement (DPA) forms an integral part of this Agreement.

10.7 The Parties undertake to keep confidential any facts, information and data, including related documents, which become known to them in connection with the contractual relationship and which are neither publicly known nor generally accessible ("Confidential Information"). Confidential Information shall also include analyses, summaries and extracts prepared on the basis of Confidential Information.

10.8 Each Party shall ensure that its personnel and third parties engaged by it (including their personnel) are required to maintain the confidentiality of Confidential Information entrusted to them or coming to their knowledge in the course of their work.

10.9 The confidentiality obligations shall not apply to information which the receiving Party can demonstrate was already lawfully known to it, was independently developed without use of the disclosing Party's Confidential Information, was lawfully obtained from a third party without confidentiality obligation, or has become publicly available without breach of this Agreement.

10.10  Disclosure of Confidential Information to third parties requires the prior written consent of the other Party, unless this Agreement expressly permits such disclosure. Each Party may disclose Confidential Information on a need-to-know basis to its group companies, professional advisers, auditors and subcontractors who are bound by confidentiality obligations no less protective than those set out herein. The Provider may disclose Confidential Information to approved subcontractors to the extent necessary for the performance of the services. A Party may also disclose Confidential Information to the extent required by law, court order or binding authority instruction, provided that, where legally permissible, it informs the other Party in advance.

10.11 The confidentiality obligations shall continue to apply after termination of the contractual relationship or after performance of the agreed services. The confidentiality obligations shall survive termination of the contractual relationship for five (5) years; with respect to trade secrets, such obligations shall continue for as long as the relevant information remains a trade secret under applicable law.

11 Duration of the agreement and change of the scope of services

11.1 The Agreement is concluded for an indefinite period. Individual Subscriptions commence on the start date specified in the applicable offer, quotation, order form or invoice

11.2 Unless otherwise agreed in the applicable offer, quotation or order form, each Subscription automatically renews in accordance with Section 8.3 and may be ordinarily terminated by either Party with effect as of the end of the current Subscription period. A notice period is not required unless expressly agreed otherwise.

11.3 Downgrades (e.g. number of licenses) can only be made at the end of a subscription period.

11.4 Upgrades can be made at any time.

11.5 Each Party may terminate the Agreement or an affected Subscription extraordinarily for good cause. Good cause exists in particular in the event of material breaches of Sections 3.5 or 7.3, repeated payment default, serious data protection or security violations, or any other material breach that is not cured within a reasonable cure period where cure is possible.

11.6 Upon termination or expiry of a Subscription, the Customer's right to access and use the affected services ends. Outstanding fees become immediately due. Unless mandatory law, the DPA or a written agreement requires otherwise, fees already paid are non-refundable and the Provider may delete Customer data in accordance with the DPA and its retention policies after the end of the applicable export or transition period.

12 Contractual components

12.1 The integrated components of this contract are in descending order of priority:

1. any custom service contract or individual agreement expressly concluded between the Parties for the relevant Subscription;

2. the signed or otherwise accepted offer, quotation or order form;

3. for data protection matters, the Data Processing Agreement (DPA);

4. for service levels, support, backup and business continuity matters, the Service Level Agreement (SLA); these Terms of Service;

5. the Sub processor policy (Phonemos Cloud); and

6. the Documentation, to the extent it is expressly incorporated by reference.

13. Applicable law and place of jurisdiction

13.1 The court responsible for the location of the Provider has exclusive jurisdiction for all disputes arising from or in connection with this Agreement, subject to any mandatory place of jurisdiction under Swiss law.

13.2 This contract is governed exclusively by Swiss law, excluding its conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

14. Final clauses

14.1 In the event of contradictions, the documents with a higher ranking always take precedence over the documents with a lower ranking. If there are several versions of the same document type, the more recent version shall prevail only if it has been validly incorporated into the Agreement by signature, acceptance, click-through acceptance or another contractually agreed update mechanism.

14.2 Should a provision of this contract be invalid or should the contract contain a loophole, the legal validity of the remaining provisions shall remain unaffected. In place of the invalid provision or the loophole, a valid provision shall be agreed which comes as close as possible to the economic purpose intended by the parties.