Master Subscription Agreement (MSA)
Scope
1.1.
This MSA governs the use of the Hoshii Platform (as defined below) and any services provided in connection with it (“Services”).
1.2.
The Services are accessible to all organizations except direct competitors or as otherwise specified in the Agreement. Competitors are prohibited from accessing the Services unless Hoshii consents to such access in advance.
1.3.
Any order by the Customer is subject to review and acceptance by Provider.
1.4.
The “Agreement” between the Customer and Hoshii consists of this MSA and, if applicable, the order form or other personalized offer (“Order Form”) provided by Provider (collectively, the “Agreement”). All documents referenced in this MSA, as published on the website on the Effective Date, are incorporated by reference and made part of this Agreement unless explicitly stated otherwise. The “Effective Date” means the date specified in the Order Form or, in the absence of an Order Form, the date the Customer starts using the Services.
Services
2.1.
Hoshii Platform
2.1.1.
“Hoshii Platform” or “Platform” means Hoshii’s proprietary Software-as-a-Service (SaaS) platform that automates the entry of data into the Customer’s Enterprise Resource Planning (ERP) systems from orders received by the Customer through various channels, including but not limited to email and voicemail. The term encompasses the platform's core functionalities, all features, modules, and add-ons as specified in the applicable Order Form.
2.1.2.
If any functionality, module, feature, add-on, or other component of the Platform is provided free of charge, Provider reserves the right, in its sole discretion, to terminate such free component at any time without any obligation to provide a substitute or alternative. The Platform, excluding any components provided free of charge, is provided in accordance with the Service Level Specifications available at www.hoshii.ai/sls (“SLS”).
2.1.3.
To ensure the Hoshii Platform remains up to date and effective, Hoshii may modify or discontinue individual components of the Hoshii Platform at any time, provided that such modifications or discontinuations do not materially diminish the overall functionality or availability of the Services for paying Customers during their current subscription term.
2.2.
Consulting Services
2.2.1.
Complementing the Platform, the Provider offers consulting, maintenance, training, and support services (collectively, “Consulting Services”). The Customer may purchase these Consulting Services for support during setup and onboarding, as well as for ongoing needs.
2.2.1.
The specific scope of the Consulting Services to be provided is detailed in the Order Form.
2.3.
Tailored Solutions
2.3.1.
In addition to the above Services, the Provider offers tailored solutions, such as custom APIs, integrations, or other solutions ("Tailored Solutions"), to meet specific Customer requirements.
2.3.2.
The specific scope, specifications, and delivery timelines for the Tailored Solutions shall be as set forth in the applicable Order Form. The Provider shall use commercially reasonable efforts to deliver the Tailored Solutions in accordance with such specifications and timelines, provided that the Customer timely fulfills all of its obligations necessary for the Provider to perform, including but not limited to providing necessary access, information, and approvals.
2.3.3.
Upon delivery of any Tailored Solution or portion thereof, the Customer shall have fifteen (15) days (the "Test Period") to test such deliverable to confirm it meets the specifications set forth in the Order Form. If the Customer identifies any material non-conformity during the Test Period, the Customer shall provide written notice by email to the Provider detailing the defect. The Provider shall then have two (2) attempts to remedy such defect within a reasonable timeframe. If the Provider fails to remedy the defect after two attempts, the Customer may, at its option: (i) allow additional remedy attempts; (ii) accept the deliverable with a mutually agreed adjustment to the fees; or (iii) terminate the applicable Order Form for such Tailored Solution and receive a partial or full refund of any prepaid fees for undelivered work. If the Customer does not provide written notice of any defect within the Test Period, the deliverable shall be deemed accepted. This section does not apply to Tailored Solutions that are not intended to be tested.
2.3.4.
Prior to final delivery and acceptance of a Tailored Solution, the Customer may request modifications to the specifications by submitting a written change request to the Provider. The Provider shall review such request and provide a written response indicating whether the modification is feasible and any impact on timelines, costs, or other terms. No modification shall be binding unless mutually agreed in writing by both parties. The Customer acknowledges that modification requests may result in adjustments to the delivery schedule and fees.
Payment
3.1.
General. The fees of the Services are specified in the Order Form and in the absence of such specification, the Services shall be invoiced at the Provider’s standard rates (“Standard Rates” are defined and as set forth in the SLS). All prices displayed on the Provider’s marketing materials are indicative and non-binding and Provider reserves the right to modify, update, or discontinue any prices or offers at any time without prior notice.
3.2.
Currency, Taxes. Unless otherwise stated in the Order Form:
(a) all prices are in Swiss Francs (CHF);
(b) all prices are subject to any applicable value-added, sales or other taxes, duties or charges imposed on the Services (“Taxes”). The Customer is responsible for the payment of all Taxes associated with the Services unless the Customer provides the Provider with a valid tax exemption certificate approved by the appropriate tax authorities. If the Provider becomes liable for such Taxes, for whatever reason, the Customer undertakes to immediately reimburse the Provider. The Parties agree, where possible, on a reverse charge procedure to simplify the payment of Taxes;
(c) the Customer is responsible for any bank or other fees incurred in the payment of the Services. All amounts are to be paid in full without any set-off, deduction or withholding.
3.3.
Expenses. Any applicable expenses by Provider are specified in the Order From. Any additional expenses require the Customer’s prior approval.
3.4.
Payment Date. All payments are due in full within fifteen (15) days of invoicing, or as otherwise specified in the Order Form. Annual or monthly charges for use of the Services will be invoiced in advance of the relevant period. Upon expiration of the payment term, the Customer will be in default without the need for a reminder or overdue notice. The Provider is entitled to charge interest on overdue payments at a rate of 5% per annum, calculated from the invoice date until full payment, including all accrued interest, is received.
3.5.
Allocated Hours. If a purchase of Services includes a specific number of service hours (“Allocated Hours”), those hours must be used within the term set forth in the Order Form or other documentation provided by the Provider, which shall be a calendar year from the date of purchase unless otherwise specified. Any unused hours will be forfeited and will not roll over to the following term. If the Allocated Hours are exceeded, the additional hours will be invoiced at the Provider’s Standard Rates.
3.6.
Estimated Hours. Furthermore, if an Order Form specifies a set number of service hours for a project, this number is considered an estimate ("Estimated Hours") unless otherwise explicitly stated. The actual number of hours required may exceed the Estimated Hours. Any excess hours will be invoiced at the Provider’s Standard Rates, except as specified in the Order Form.
Intellectual Property
4.1.
Ownership. Hoshii owns and shall retain sole and exclusive ownership of the Hoshii Platform, any Tailored Solution, and any other deliverable provided under this Agreement (collectively the “Platform Technology”), including all IP Rights (as defined below) related thereto, as well as any improvements, developments, modifications, or changes made to any of the foregoing during the term of this Agreement, whether by Provider, the Customer, or any third party. Intellectual Property Rights" or "IP Rights" means all worldwide rights, title, and interest in and to any and all intellectual property, including but not limited to patents, utility models, designs, copyrights (including moral rights), trade secrets, confidential information, trademarks, service marks, trade names, domain names, mask work rights, database rights, rights in computer software (including source code and object code), algorithms, inventions, discoveries, improvements, developments, processes, methods, techniques, know-how, and any other intellectual property or proprietary rights of every kind and nature, whether now known or hereafter existing, whether registered or unregistered, capable of registration or not, or protectable under applicable law or not, including any applications for registration, renewals, extensions, and all other related rights, the rights to sue for past, present, and future infringement or misappropriation, and all goodwill associated therewith.
Notwithstanding anything to the contrary in the Agreement, including the Order Form, the Customer explicitly acknowledges that no rights, titles, or interests in the Platform Technology or IP Rights related thereto are assigned, transferred, or conveyed under this Agreement. Except as expressly provided in section Fehler! Verweisquelle konnte nicht gefunden werden., no license or other rights are granted to any Platform Technology.
4.2.
Licence. Subject to the terms and conditions of this Agreement, including the payment of all applicable fees, Provider hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the Hoshii Platform, any Tailored Solution, and any other deliverables provided under this Agreement, solely for the Customer’s internal business purposes during the term of this Agreement, as specified in the applicable Order Form.
Any open source or third-party software included in the Platform Technology will be provided in accordance with the open source or third-party license.
4.3.
Customer Content. The Customer is the sole and exclusive owner of its own content, logos, marks, etc. and any related IP Rights, and will retain all rights, title and interest in such content and works. The Customer grants Provider a limited right to use such content and works during the term of this Agreement, if and to the extent necessary to provide the Services to the Customer.
4.4.
Customer Obligations. The Customer shall (i) not distribute, or otherwise make available the Platform Technology to any third party without Provider’s prior written consent; (ii) not reverse engineer, disassemble or decompile, or attempt to reverse engineer, disassemble or decompile the Platform Technology; (iii) comply with all applicable laws and regulations in connection with its use of the Platform Technology; (iv) offer the necessary assistance with regard to failure analyses, and promptly report or forward any complaints and claims related to the Services, (v) not modify or alter the Platform Technology (including future versions) in any way (other than through the configuration options provided by Provider) without Provider’s prior written consent; (vi) not create derivative works of the Platform Technology; (vii) not copy or otherwise reproduce, in whole or in part, the Technology Platform; (viii) not modify or remove any labels or copyright notices in Provider’s Services; (ix) not manipulate Provider’s Services and infrastructure; (x) not use the Services for illegal, unfair or offensive purposes; (xi) not distribute viruses, Trojan horses or other malicious software through the Services, (xii) not scrape the Services by means of automated scripts, (xiii) not circumvent or attempt to circumvent any technical limitations or restrictions of Hoshii’s Services, and (xiv) not to use the Services in such a way that Hoshii would be subject to regulatory supervision, responsibility or otherwise obliged to comply with legal provisions.
Warranty
The Services are provided are provided on an “AS IS” basis, and the Provider and its affiliates make no warranties, and any and all warranties are excluded, whether express, implied, statutory, or otherwise, including but not limited to warranties of merchantability, quality, or fitness for a particular purpose, unless otherwise explicitly stated in the Order Form.
In particular, the Provider disclaims any representation or warranty, that the Platform will be uninterrupted or error-free, or meets the Customer’s specific requirements.
Limitation of Liability
6.1.
General. Unless a specific section explicitly provides for a full exclusion of liability to the maximum extent permitted by law, the limitations and exclusions of liability set forth in this section section 6. shall apply to all sections of this Agreement.
6.2.
Limitation. PROVIDER’S AND CUSTOMER’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE SERVICES PURCHASED THAT GAVE RISE TO THE RELEVANT CLAIM, PROVIDED THAT IF THE AGREEMENT IS CONDLUDED FOR A TERM EXCEEDING 12 MONTHS, THE TOTAL AGGREGATE LIABILITY SHALL BE LIMITED TO THE AMOUNT DUE DURING THE LAST 12 MONTHS OF THE AGREEMENT PRIOR TO THE CLAIM. NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, REVENUE, BUSINESS, VALUE, CUSTOMERS, ANTICIPATED SAVINGS, DATA, REPUTATION, GOODWILL OR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT IN ANY WAY THE LIABILITY FOR (i) ANY INFRINGEMENT OF THE PROVIDER’S RIGHTS PERTAINING TO ITS PLATFORM TECHNOLOGY, OR (ii) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DEATH, PERSONAL INJURY, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6.3.
Infringement of Third-Party Rights. The Provider shall indemnify, defend, and hold harmless the Customer, its affiliates, and their respective officers, directors, employees, and agents (collectively, the "Indemnitees") from and against any and all valid claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or related to any actual negligence, willful misconduct, or breach of this Agreement by the Provider in connection with the Provider’s Services that result in the infringement of any third party’s intellectual property rights, provided that (i) the Customer immediately notifies the Provider of the claim and the impending assertion of a claim, (ii) the Provider is granted sole authority to investigate, defend or settle the claim, and (iii) the Provider is provided with the requested assistance in investigating, preparing, defending and settling the claim, subject to reimbursement of the Customer’s reasonable expenses.
6.4.
Exclusion. The Customer shall fully indemnify, defend, and hold harmless the Provider, its affiliates, and their respective officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, expenses (including reasonable attorneys' fees and expenses), judgments, and penalties arising out of or related to: (i) the Customer’s misuse, improper use, handling, storage, alteration, or unauthorized modification of the Platform Technology; (ii) the Customer’s violation of any applicable laws, regulations, or the Customer’s failure to obtain necessary licenses, permits, or consents in connection with the export, installation, or use of the Platform Technology; or (iii) any action, proceeding, or claim brought against the Provider for infringement of any existing rights of a third party, including but not limited to intellectual property rights, in connection with the use, misuse, or modification of the Platform Technology by the Customer or any third party acting on the Customer’s behalf.
Confidentiality, Data Protection
7.1.
Confidentiality
7.1.1.
The Parties agree to keep the Confidential Information (as defined below) strictly confidential and to take all reasonable precautions to prevent its unauthorized use or disclosure. The Parties agree not to use the Confidential Information for any purpose other than the performance of this Agreement.
Without limitation, any non-public information disclosed by one Party to the other and any information in connection with the Platform Technology is considered “Confidential Information”. Other “Confidential Information” includes information that is (i) designated as such in writing or in another tangible form by the disclosing Party at the time of disclosure and clearly marked as “confidential,” “proprietary,” or similar; (ii) if initially disclosed orally or in another intangible form, designated as “confidential,” “proprietary,” or similar at the time of disclosure, and subsequently confirmed in tangible form and provided to the receiving Party by the disclosing Party within 30 days of the initial disclosure; or (iii) otherwise reasonably considered confidential at the time of disclosure.
Notwithstanding the foregoing, Confidential Information does not include any information that (i) is now or at a later date generally available to the public through no fault of the Receiving Party; (ii) was demonstrably in the Receiving Party’s lawful possession prior to its disclosure by the disclosing Party; (iii) was independently developed by a Party without the use of Confidential Information; or (iv) a Party lawfully receives from a third party that has the right to disclose the Confidential Information.
7.2.
Data Protection
7.2.1.
Each Party shall comply with the data protection laws applicable to the respective Party. The Customer warrants that it is authorized to transfer any personal data to Provider for processing and that such transfer complies with applicable laws.
Each Party shall comply with the data protection laws applicable to the respective Party. The Customer warrants that it is authorized to transfer any personal data to Provider for processing and that such transfer complies with applicable laws.
Where Provider processes personal data on behalf of the Customer, such processing shall be governed by the Data Processing Agreement (DPA) available at www.hoshii.ai/dpa.
The Customer is responsible for ensuring that the collection and processing of sensitive personal data (as defined under applicable laws, including special categories under GDPR Article 9) through the Services complies with legal requirements. Provider does not currently provide specific technical solutions for the enhanced protection of sensitive personal data. The Customer shall indemnify Provider against any claims, losses, or liabilities arising from the Customer’s unauthorized collection or processing of sensitive personal data, provided that Hoshii has complied with its obligations under the DPA and applicable laws.
Further information on how Provider processes data is available in our Privacy Policy available at www.hoshii.ai/policies/privacy-policy.
Term, Termination
8.1.
The term of the Agreement is specified in the Order From. The Agreement will be renewed for successive terms of the same length unless terminated by either party in writing (e.g., by e-mail) at least sixty (60) days prior to the expiration of the term.
8.2.
Either Party may terminate this Agreement in writing at any time (i) in the event of a material breach of this Agreement by the other Party not cured within thirty (30) days after written notice of such breach, or (ii) if the Services are used in a manner not in accordance with this Agreement.
8.3.
Upon termination any rights of use and other rights granted to the Customer under this Agreement are terminated, and the Customer agrees to immediately pay all outstanding costs, fees and otherwise owed amounts (for the avoidance of doubt, it is stated that in the event of premature termination for which the Customer is responsible, the costs, fees and other amounts owed will be owed for the entire term of the Agreement).
8.4.
The rights and obligations of the Parties that by their nature or context are intended to survive the termination or expiration of this Agreement shall survive, including, but not limited to, obligations regarding confidentiality, indemnification, limitation of liability, and any accrued rights or payment obligations.
Miscellaneous
9.1.
Marketing. The Customer agrees that Hoshii may, during the term of the Agreement and after its termination, use the Customer’s name and logo as well as respective case studies on its website and in other materials (flyers, brochures, presentations, use cases, newsletters, etc.), and may name the Customer as a customer or user. The Customer may revoke this permission, in whole or in part, at any time by written notice (e.g., by e-mail).
In addition, the Customer agrees to receive information about Hoshii’s Services and offers (e.g., via e-mail) during and after termination of the Agreement. The instructions for opting out of these mailings can be found in the corresponding messages.
9.2.
Entire Agreement. This Agreement (as defined in Section 1.4) constitutes the entire Agreement between Provider and the Customer with respect to the Services and supersedes any agreement or understanding with respect to the subject matter hereof that may have been concluded prior to the Effective Date. Any additional agreements are null and void, unless expressly incorporated into and referenced within an Order Form issued by Provider and duly executed by both parties in accordance with the terms of this Agreement.
9.3.
Severability. If at any time any provision or part of a provision of this Agreement is or becomes invalid or unenforceable, then neither the validity nor the enforceability of the remaining provisions or the remaining part of the provision will in any way be affected or impaired. In this case, Hoshii undertakes to immediately replace the invalid provision with a valid provision which best reflects the original intention in terms of its content.
9.4.
Assignment. Neither Party may assign its rights or obligations under this Agreement to any third party without the prior written consent of the other Party (which will not be unreasonably withheld); provided, however, that either Party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other Party, to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and inure in its entirety to the benefit of any successors permitted in accordance with this section.
9.5.
Amendments to this Agreement. Any amendments to this Agreement will be made in writing (whereby any electronic form of text signed electronically by the authorized representatives also satisfies the requirements of written form under this Agreement). With regard to the SLS, the current version on the website applies (i.e., amendments of the SLS do not require the Customer’s consent, unless the amendment would result in a significant reduction in the scope of the Services). Notwithstanding the foregoing, Hoshii reserves the right to amend this Agreement at any time by notifying the Customer (e.g., by e-mail). If the Customer does not object (by e-mail) within thirty (30) days after the notification, the Customer is deemed to have agreed to the changes.
9.6.
Force majeure. If the Provider is prevented or delayed from performing any of its obligations under this Agreement due to circumstances beyond its reasonable control, including, but not limited to, natural disasters, pandemics, acts of government or regulatory authorities, strikes or other labor disputes, war, civil unrest, acts of terrorism, fire, embargoes, shortages in supply, or delays caused by third-party suppliers due to any such events, the Provider shall be excused from such performance for the duration of the event causing the prevention or delay. The Provider shall use all reasonable efforts to mitigate the impact of such events and to resume performance as soon as reasonably possible, provided that no such event shall excuse the Customer from making payments due under this Agreement.
9.7.
Applicable Law and Jurisdiction. This Agreement and any other agreements in connection with the Services will in all respects be governed by, construed and enforced in accordance with the laws of Switzerland (without regard to conflict of law principles or international treaties that would result in the application of any law other than Swiss law). All disputes arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state courts of Zurich, Switzerland.