Btwentyfour Membership Agreement (Retailers)

Each of Btwentyfour (Operator) and the Account Holder is hereinafter also referred to as a “Party”, and jointly, as the “Parties”.

This Btwentyfour Membership Agreement (this “Agreement”) is entered into upon the Parties’ execution of the same (the “Effective Date”).

This Agreement replaces and supersedes, as of the Effective Date, any and all previous agreements between the Parties relating to the subject matter hereof, however that the foregoing shall not forfeit any rights or obligations accrued by any Party under any such previous agreement up until the Effective Date.

The following appendices shall form an integral part of this Agreement:

Appendix A – Available Membership Packages (Retailers)

Appendix B – Terms of the Membership Packages (Retailers)

Appendix C – Btwentyfour Service Desk Packages

Appendix D – Data Processing Agreement

1DEFINITIONS

The following terms shall, when used in this Agreement and unless the context provides otherwise, have the meaning ascribed to them below.

Access Data – shall have the meaning set forth in Section 2.4 below.

Access Point – refers to the point or points at which Btwentyfour connects the Btwentyfour platform to a public electronic communications network.

Account Holder – refers to the company designated as such on the first page hereinabove and “account holder” refers to any other legal entity which is party to a valid Btwentyfour Membership Agreement relating to the Btwentyfour Marketplace, stipulating terms corresponding to those set forth in this Agreement.

Account Holder’s Data – refers to any and all information sent, submitted, entered or uploaded by the Account Holder to the Btwentyfour Marketplace, regardless of the Account Holder’s Role.

Activated Business Relation – refers to each specific Business relation, specifically targeted against another account holder and it becomes activated once the Account Holder’s order for such specific Business Relation has been confirmed by Btwentyfour in digital or other written format.

Activated Business Type – refers to each specific Message Type, specifically targeted against another account holder and it becomes activated once the Account Holder’s order for such specific Message Type has been confirmed by Btwentyfour in digital or other written format.

Added Value Services – refers to add-on services available under certain Membership Packages.

Agreement – refers to this Btwentyfour Membership Agreement, including any appendix attached at signing (or thereafter by mutual agreement), together with this main agreement document.

Aligned Affiliate – shall have meaning set forth in Section 2.3 below

Annual Order Value or AOV – refers to the defined and confirmed order value handled through the Btwentyfour Marketplace on behalf of the Account Holder during a given twelve (12) month period.

Azure Services – shall have the meaning set out in Section 5.2 below.

Btwentyfour Marketplace – refers to the digital service platform made available by Btwentyfour to the Account Holder via http://www.btwentyfour.com, on the terms and conditions set forth in this Agreement.

Btwentyfour – refers to Btwentyfour AG, being the operator of the Btwentyfour Marketplace.

Business Partner – refers to another account holder with which the Account Holder has the Business Relation. “Business Partners” refers to the Account Holder together with its Business Partner.

Business Relation – refers to the combination of two account holders, each identified by a unique GLN (or other similar unique identification code, such as for North America).

Buyer – refers to an account holder in its Role as buyer of products.

Confidential Information – shall have the meaning set forth in Section 7 below.

Disclosing Party – shall have meaning set forth in Section 7 below.

Effective Date – shall have the meaning set out on the first page of this Agreement.

GLN – refers to a Global Location Number that consists of a 13-digit logical number that uniquely and globally identifies a particular entity, and which is made available by the global non-profit organization GS1.

Hourly Rate Services – refers to services associated with the Services however not included in the Membership Packages but charged separately on an hourly basis.

Initial Term – shall have the meaning set forth in Section 8.1.

Master Data – refers to all information relating to a product (e.g., product references/identification, properties, attributes, dates, prices, and media).

Membership Package – refers to each bundle of Services as detailed in Appendix A.

Message Type – refers to digital messages (data files) containing consolidated and structured data related to a specific purpose, such as Price catalogues (PRICAT), Orders (ORDERS), Order change (ORDCHG), Order responses (ORDRSP), Advanced delivery notification (DESADV), Inventory reports (INVRPT), etc. All available Message Types are listed in the Btwentyfour Integration Guidelines (https://big.btwentyfour.com).

Party and Parties – shall have the meaning set out on the first page of this Agreement.

Receiving Party – shall have meaning set forth in Section 7 below.

Role – refers to an account holder’s role as Buyer or Seller, respectively, in a supply chain process.

Seller – refers to an account holder in its Role as seller of products.

Service Desk – refers to the Btwentyfour customer contact point for User Support and Support as well as Hourly Rates Services.

Service Hours – shall have the meaning set forth in Section 2.6d)(ii).

Services – shall have the meaning set forth in Section 2.1 below.

SPOC – refers to the Account Holder’s single point of contact in the Btwentyfour Customer Success team. The SPOC is a particular role assigned to hold and operate in an over-arching manner with a certain level of initiation and knowledge in the ruling circumstances of the Account Holder. The SPOC may therefore be able to swiftly involve the relevant resources to lead, advise and guide the Account Holder to accelerate any ongoing activity or incoming business case from an Account Holder.

Support – refers to second (2nd) line support (Technical support) provided by the Btwentyfour Service Desk in relation to the Btwentyfour Marketplace, cf. Appendix C.

Technical Advisor – refers to the Account Holder’s assigned point of contact at Btwentyfour for integration or connectivity projects/topics, who will lead and guide in an over-arching manner and be initiated and knowledgeable in the ruling circumstances of the Account Holder and may therefore, if necessary, swiftly involve the relevant resources to accelerate any ongoing activity or incoming business case.

Term – refers to the term of this Agreement.

User Support – refers to first (1st) line support (Standard User Support) provided by the Btwentyfour Service Desk in relation to the Btwentyfour Marketplace, cf. Appendix C.

2THE SERVICES

2.1Membership Packages

Btwentyfour.com is a marketplace for B2B trade. The Btwentyfour Marketplace offers a generic exchange of electronic information between the account holders in the network, where the marketplace accounts are offered as Membership Packages based on the account holder’s Annual Order Value, from time to time. All available Membership Packages are presented in Appendix A.

2.2Annual Order Value and agreed Membership Package

For the initial contract period starting on the Effective Date and ending on the last day of the calendar quarter, the Account Holder is eligible for the Membership Package corresponding to the Account Holder’s estimated AOV. The foregoing notwithstanding, the Account Holder may always opt for a Membership Package based on a higher AOV.

On a quarterly basis during the Term, the Btwentyfour Marketplace verifies the Account Holder’s AOV based on actual value during the preceding 12-month period. If it is then determined that the Account Holder’s 12-month AOV exceeds the thresholds for the agreed Membership Package, the Account Holder will automatically (as of the current calendar quarter end) move up to the relevant Membership Package and be invoiced accordingly forthwith.

The Membership Package applicable to the Account Holder from time to time is referred to herein as the “agreed Membership Package”. Notifications related to changes of the agreed Membership Package will, whenever relevant, be sent at the next upcoming calendar quarter and will be documented in Btwentyfour’s CRM (an extract of which may be provided upon the Account Holder’s written request).

2.3Account Holder aligned affiliated entities

It is acknowledged that the Account Holder may hold an underlying structure of franchise, member stores, and other affiliated entities. Any such affiliated entity, over which the Account Holder has control, or which is under common control with the Account Holder, and which affiliated entity is fully aligned with a general information flow via the Account Holder itself (with no individual deviations whatsoever) is hereinafter referred to as an “Aligned Affiliate”.

For purposes of choice and eligibility for Membership Packages, it is agreed that the Account Holder is, in applicable cases, entitled to choose whether (i) all such Aligned Affiliates shall be considered as one single entity under and including the Account Holder (in other words, the AOV applicable for the Account Holder shall include the aggregate of all AOV’s of all Aligned Affiliates), or (ii) whether also each Aligned Affiliate shall constitute a separate account holder (and thus apply separate AOV’s for purposes of the Membership Package thresholds and, also, each store entering into its own separate Btwentyfour Membership Agreement).

In this connection, it is acknowledged that regardless of the Account Holder’s choice of (i) or (ii) in the foregoing, each franchise and member store will, for technical purposes/reasons, still need to hold a separate and individual GLN for identification.

2.4Access

Upon execution of this Agreement, the Account Holder will obtain a User ID and a password (collectively “Access Data”) for access to the Services included in the agreed Membership Package.

The Account Holder undertakes to handle the Access Data with due care, as the Parties’ joint Confidential Information, storing the Access Data in a manner that prevents access by any unauthorized third party.

2.5User rights

Subject to the Account Holder’s compliance with the terms of this Agreement and due payment of applicable fees, Btwentyfour hereby grants the Account Holder a world-wide, time-limited, non-exclusive, non-transferable and non-sublicensable right to use, and to allow its authorized representatives to use (on the Account Holder’s behalf only), the Services in the agreed Membership Package for the Term, in the Account Holder’s own business operations, only.

2.6Btwentyfour’s Marketplace obligations

Against the Account Holder’s due payment of applicable fees, Btwentyfour will provide the following in the context of the Account Holder’s access to and use of the relevant Services:

a)as of the Effective Date, access to the Btwentyfour Marketplace at the Access Point in accordance with the terms of this Agreement, and performance of the Services in the agreed Membership Package; and

b)maintain and develop the Btwentyfour Marketplace and uphold a Service Desk, covering the stipulated User Support and Support in accordance with the agreed Membership Package, including relevant tools of administration and maintenance; and

c)electronically exchange business data on behalf of the Account Holder, as per the agreed Membership Package and in accordance with the documentation and specifications set out in the Btwentyfour Integration Guidelines (https://big.btwentyfour.com/); and

d)provide agreed User Support and Support as follows:

(i)fix errors in the Btwentyfour Marketplace,

(ii)User Support and Support via email (support@btwentyfour.com) or phone (+46 18 106030) on weekdays (Monday to Friday) between 08.00 - 12.00 hrs CET and 13.00-17.00 hrs CET (“Service Hours”) (emails received outside of Service Hours will be collected, however no action can be guaranteed until the commencement of the next Service Hours),

(iii)when applicable, extended Service Desk functions/services and additional resources outside Service Hours, as separately agreed with the Account Holder, and

(iv)deviation in the regular Service Hours, such as public holidays, will be shared through the Btwentyfour website www.btwentyfour.com.

e)Notwithstanding anything to the contrary, Btwentyfour may make changes to the Btwentyfour Marketplace, individual Services, or the method of providing these, without prior notification to the Account Holder, provided such changes are not to the detriment of the Account Holder to any extent greater than what is deemed as insignificant.

f)Btwentyfour may make changes to the Btwentyfour Marketplace, individual Services, or the method of providing these, other than those covered by e) above, on condition of prior written notice to the Account Holder at least three (3) months in advance.

g)Btwentyfour may, notwithstanding anything to the contrary and even if it would be of inconvenience to the Account Holder, implement updates to the Btwentyfour Marketplace or individual Services in order to protect the Btwentyfour Marketplace, the relevant Service, or for security-related purposes. Likewise, if the provision of the Btwentyfour Marketplace or a particular Service would result in a risk of more than insignificant damage to Btwentyfour or another account holder, Btwentyfour may block or restrict the Account Holder’s access to the Btwentyfour Marketplace or such Service. The Account Holder shall be informed as soon as possible if access is restricted or blocked.

h)Unless otherwise follows from any applicable service level agreement, Btwentyfour may carry out unplanned measures that affect the availability of the Btwentyfour Marketplace or a Service if required for technical, maintenance, operational, or security reasons. Btwentyfour will perform such measure promptly and in a manner that limits disruption and will, if technically possible, inform the Account Holder within a reasonable time before any such action is taken.

i)For clarity, it is explicitly noted that it is at all times the responsibility of the Account Holder to provide any and all relevant information and data, fully updated from time to time, for the integration of any of its Business Relations with the Btwentyfour Marketplace (as well as in relation to the Account Holder’s own receipt and use of any information or data forwarded to it by the relevant Business Partner via the Btwentyfour Marketplace).

2.7Service Desk

Btwentyfour’s Service Desk is available as per the agreed Membership Package. The Service Desk components include the following.

a)User Support

(i)User Support refers to first (1^st tier) line Btwentyfour platform support. User Support covers guidance of handling, advisory and presentation of solutions, via phone or email.

(ii)User Support does not cover any support that requires physical efforts; it only covers advisory, verbal guidance of handling and presentation of solutions, conveyed via phone or email.

(iii)All User Support issues, meaning occasions when the Account Holder specifically requests assistance from the Btwentyfour User Support team, will be charged by the hour (half hour minimum) in accordance with the then-current price list (Hourly Rate Services – User Support, cf. Appendix C); provided, however, that no such hourly charge will apply for account holders with an agreed Membership Package which includes User Support.

b)Support

(i)Support refers to second (2^nd tier) line Btwentyfour platform support. Support covers troubleshooting, problem resolution, and error recovery.

(ii)Support covers assistance, troubleshooting, problem resolution, and error recovery on behalf of the Account Holder that involves physical efforts beyond User Support.

(iii)All Support issues, meaning occasions when the Account Holder specifically requests assistance from the Btwentyfour Support team, will be charged by the hour (half hour minimum) in accordance with the then-current price list (Hourly Rate Services – Support, cf. Appendix C); provided, however, that no such hourly charge will apply for account holders with an agreed Membership Package which includes Support.

2.8Certain limitations; changes to the Services

(i)When providing Services to the Account Holder hereunder, Btwentyfour shall not be responsible for the Account Holder’s own applications, software, integration software modules, or hardware. In cases where User Support or Support has been provided for reasons relating to components not included in the relevant Services, Btwentyfour shall be entitled to compensation at an hourly rate (half hour minimum) in accordance with the then-current price list (Hourly Rate Services – Support/Integration/Conversion, cf. Appendix C).

(ii)Any Service provision by Btwentyfour to the Account Holder relating to changed requirements from current Business Relations, including any integration, upgrading, or adaptation requests by the Account Holder, will be charged by the hour (half hour minimum) in accordance with the then-current price list (Hourly Rate Services – Support/Integration/Conversion, cf. Appendix C).

(iii)Any User Support or Support further to deviations by the Account Holder from agreed file formats or further to the Account Holder changing or requesting to change file format, software configuration changes (ERP), or similar, shall be compensated by the hour (half hour minimum) in accordance with the then-current price list (Hour Rate Services – Support/Integration/Conversion, cf. Appendix C).

(iv)Btwentyfour shall not for any Services (including any associated products) be responsible for storing the physical input files for individual Message Types (handled via the Btwentyfour Marketplace) for longer time spans than listed below; provided, however, that the following terms for data storage shall only apply unless otherwise required by the relevant data controller due to applicable mandatory personal privacy legislation.

Message types related to the Master Data process:

a)Published files – for eighteen (18) months after the physical file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

b)Unpublished files (drafts) – for thirty (30) calendar days after the physical input file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

Message types related to the Order Management process:

a)Published files – for eighteen (18) months after the physical file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

b)Unpublished files (drafts) – for thirty (30) calendar days after the physical input file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

Message types related to the Delivery, Sales and Inventory process:

a)Published files – for eighteen (18) months after the physical file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

b)Unpublished files (drafts) – for thirty (30) calendar days after the physical input file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

Message types related to the Finance/Invoicing process:

a)Published files – for eighteen (18) months after the physical file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

b)Unpublished files (drafts) – for thirty (30) calendar days after the physical input file has been confirmed as received/uploaded via the Access Point of the Btwentyfour Marketplace.

(v)Any remarks concerning errors or inadequate handling relating to any Message Type file uploaded to the Btwentyfour Marketplace shall be reported by the Account Holder to the Service Desk (support@btwentyfour.com).Such report shall be made no later than ten (10) days after the physical input file has been confirmed received to the Btwentyfour Marketplace, failure of which shall mean that Btwentyfour shall have no responsibility or liability with respect to the error or inadequate handling in cause.

2.9Communication protocol

All information between the Parties will be exchanged via a standardized TCP/IP network using the chosen communication protocol (included in all Membership Packages).

2.10The Btwentyfour Marketplace is available between 00.00 - 24.00 hrs during the Term, except for planned downtime. Any planned time for maintenance will preferably be scheduled to weekdays between 03.00 – 07.00 hrs Central European Time (CET). Btwentyfour is responsible to timely notify the Account Holder of any planned downtime.

2.11For the avoidance of doubt, Btwentyfour shall not be responsible for any failure if such failure was caused by any of the following circumstances and provided that the said circumstance was not directly attributable to Btwentyfour:

a.faults due to the Account Holder’s applications, software, integration software, integration modules, or hardware, or the Account Holder’s Data,

b.circumstances outside Btwentyfour’s area of responsibility, such as failure of communications or other products or services from third parties (such as the Azure Services) for which Btwentyfour has not specifically taken responsibility, criminal acts by third parties, such ransomware attacks, hacking, virus or other security interference, provided that Btwentyfour has implemented security measures in accordance with any agreed requirements or, in the absence of such requirements, in accordance with professional standards, or any circumstance referred to as force majeure or a corresponding limitation of liability in this Agreement, or

c.any other circumstances that are beyond the reasonable control of Btwentyfour in relation to Service availability.

2.12Btwentyfour does not warrant that the Btwentyfour Marketplace or any Service is error-free. Btwentyfour is always entitled to correct errors in a Service and shall promptly notify the Account Holder of any remedial work and expected downtime. Btwentyfour shall use commercially reasonable efforts to remedy any errors or other defects, or deficiencies reported to it by the Account Holder. Errors shall be remedied either through corrections or through instructions on how to work around the error. Correction of errors shall be remedied through patches or updates and implemented in later versions.

2.13The remedies available pursuant to Sections 2.6 – 2.12 shall be the Account Holder’s sole remedy in relation to errors or system failures in the Btwentyfour Marketplace, including in any Service (including any associated product).

3ACCOUNT HOLDER OBLIGATIONS

3.1The Account Holder agrees to submit and receive data to and from the Btwentyfour Marketplace in accordance with the specifications at (https://big.btwentyfour.com/) unless the Parties have explicitly agreed on a deviating external format with detailed file descriptions, specifications and sample files. If the Account Holder or its Business Partner sends data which is not intended or agreed to be set-up for production or otherwise is not covered by the agreed Membership Package, Btwentyfour is entitled to charge a fee of CHF 0.46 per file and transaction for the administration of managing this non-agreed data until these data transactions stop, or the data in question is incorporated into the appropriate and agreed Membership Package.

3.2During the Term and in connection with the Account Holder’s use of the Btwentyfour Marketplace, the Account Holder undertakes (without limitation) to:

a)review documentation provided by Btwentyfour and make such decisions and provide specifications and such information to Btwentyfour as are required for Btwentyfour to perform its obligations under this Agreement;

b)maintain the equipment and software that Btwentyfour, on a website or by another written method, has stated is required to use the Btwentyfour Marketplace and the relevant Services, or which otherwise is clearly required for such use;

c)exchange information in accordance with applicable Btwentyfour documentation and specifications, including applicable account holder requirements from time to time.

In this connection, it is acknowledged that the Account Holder is always responsible for providing Btwentyfour with complete, sufficient, and intelligible specifications covering all files that are to be exchanged via the Btwentyfour Marketplace. Btwentyfour will incorporate such requirements, however that it is acknowledged that it is the responsibility of the Business Partners to confirm the right versions of any relevant specifications. To be valid, any specification, requirement, or content exceeding the Btwentyfour specifications needs to be informed by the Account Holder and agreed and documented by the Parties in an updated format duly delivered.

If the Account Holder makes deviations from the agreed format specifications by e.g., upgrading the file format to a new version, Btwentyfour shall be entitled to compensation for work performed and any related costs. Work efforts will be charged by the hour (half hour minimum) in accordance with the then- current price list (Hour Rate Services – Support/Integration/Conversion, cf. Appendix C).

If the Account Holder fails in providing Btwentyfour with relevant specifications and information, Btwentyfour shall be entitled to compensation for the creation of an internal file description to the extent necessary for fulfilling the mapping and conversion process. Such efforts will be charged by the hour (half hour minimum) in accordance with the then-current price list (Hour Rate Services – Support/Integration/Conversion, cf. Appendix C);

d)appoint one (1) or maximum two (2) persons (super-users) who will, as the only contact person(s), be allowed to have contact with the Service Desk, referring to operation issues and/or User support and Support incidents;

e)be responsible for the internal transfer within its own organization of all knowledge related to the use of the Services.

(In this instance, knowledge refers to any and all accumulated knowledge and understanding obtained by way of guidance, User Support, instructions, and information provided by Btwentyfour during the Term. If the Account Holder fails to disseminate such knowledge within its organization and, for this reason, requires the same guidance, instructions, or information once more from Btwentyfour, then Btwentyfour shall be entitled to compensation for any such work efforts at the then-current hourly rate equivalent at the rent for a SPOC resource, cf. Appendix C. The foregoing shall also apply to any reintroduction of new or succeeding Account Holder personnel, who were not part of the existing project organization when entering into this Agreement);

f)be responsible for the Account Holder data link to the Access Point and for any additional data link related to situations where a specific data link is stipulated by the Business Partner. Subscription fees, any service charges, etc. for data links between the Account Holder and the Access Point and/or to any Business Partner are not included in the fees under this Agreement;

g)be responsible, as between the Parties, for the communications equipment, hardware as well as software, connecting the Account Holder to the Access Point;

h)to the extent not included in the agreed Membership Package, be responsible for appointing and cover the costs for a preferred internal resource (in the Account Holder’s organization) with competence equivalent of a SPOC, to take full responsibility for the following tasks:

(i)appoint a suitable pilot company for the integration project,

(ii)together with the relevant Business Partner, define and commit to the different Message Types to be incorporated in the integration project, and

(iii)manage and, together with the Business Partner, create and commit to a preferred time plan relating to the Message Types and specifications (referring to the current Btwentyfour Implementation Guide). Such time plan needs to be shared and confirmed by Btwentyfour before it may be considered as an integrated part of the integration project;

i)in relation to all technical integration/connectivity matters between Btwentyfour and the Account Holder, be responsible for appointing and cover the costs for a preferred internal resource (in the Account Holder’s organization) equivalent to a Technical Advisor, responsible for managing the integration project in all other matters than specified in sub-section h) above;

The Account Holder shall have the full responsibility to manage all matters relating to the integration project that relates to the Account Holder’s organization (and hence outside of Btwentyfour’s control). In any event, Btwentyfour shall not be responsible for any delays relating to activities or actions that are defined as obligations of the Account Holder or any third-party providers acting on behalf of the Account Holder or its Business Partner; and

j)delete physical incoming files thirty (30) working days after the incoming file has been confirmed as received by the Btwentyfour Marketplace from the communication solution, regardless of the chosen communication solution (excepting files relevant for investigations pursuant to Section 2.8 (iv), which files shall be retained until a closure of such investigations).

3.3The following limitations shall apply where the Account Holder interacts with multiple Business Relations:

a)all published and stored product-related data is Master Data (i.e., only one (1) version can be used at a time), except for Currencies, Prices, Discounts, segmentation indicators, Order and delivery windows, Tax, Sales information, and language variations. As a consequence, the Btwentyfour platform does not allow deviations in product-related Master Data between Business Relations; any changes to any Master Data will affect all Business Relations simultaneously;

b)for an individual product SKU, a Business Relation can only hold one (1) combined set of Market/Region, Price, Currency, VAT and Dates; and

c)a Business Relation can only consist of one (1) publishing account holder and one (1) receiving account holder exchanging information and transaction data (meaning one (1) specific account holder interacting and exchanging information and data with one (1) specific account holder).

3.4Warranties and indemnities

a)The Account Holder is fully responsible for the Account Holder’s Data and the Account Holder shall ensure that the Account Holder Data is free from viruses, trojans, worms, and other malicious software or code and that the Account Holder’s Data otherwise does not damage or interfere with the Btwentyfour Marketplace or the Services.

b)The Account Holder agrees to indemnify and hold Btwentyfour harmless from any and all losses, liabilities, damages, fines, costs, and expenses (including, without limitation, any reasonable counsel fees and costs, whether or not in connection with litigation) to the extent arising out of any claims or suits brought or made against Btwentyfour because of the Account Holder’s use or the content of the Account Holder’s Data.

c)The Account Holder warrants and represents that the Account Holder has any and all required rights to market and sell all brands and products that the Account Holder presents via the Btwentyfour Marketplace (www.btwentyfour.com).

d)Btwentyfour shall obtain the prior approval from the Account Holder for any use of the Account Holder’s company name, brand name/s, logos and/or production message types, unless such use is exclusively incorporated in necessary functions or features within the Btwentyfour Marketplace or platform-related applications. Notwithstanding the foregoing, Btwentyfour may always expose the Account Holder’s brand names and/or logos on the Btwentyfour website.

4INTELLECTUAL PROPERTY RIGHTS

4.1Btwentyfour shall retain all right, title and interest in and to (i) the Btwentyfour Marketplace, the Btwentyfour Marketplace documentation, all modifications and/or enhancements to the Btwentyfour Marketplace, regardless of the source of inspiration for any such enhancement or modification and regardless of whether the Account Holder has provided input regarding such modifications and/or enhancements, and all inventions or discoveries embodied within the Btwentyfour Marketplace, and (ii) any proprietary education or training content, and (iii) all results of the Services; provided, however, that the foregoing shall not apply to any Account Holder Data or Account Holder Confidential Information. The Parties agree that this Agreement does not transfer or assign and does not purport to transfer or assign any ownership or any intellectual property right from Btwentyfour to the Account Holder, whose rights to the Btwentyfour Marketplace are solely the limited license to use stipulated under Section 2.5 above. Btwentyfour reserves all rights in and to the Btwentyfour Marketplace that are not expressly granted pursuant to this Agreement.

4.2The Account Holder retains all right, title, and interest to the Account Holder Data and Account Holder Confidential Information. Btwentyfour may only use the Account holder Data and Account Holder Confidential Information to provide the Services in accordance with the terms of this Agreement. Notwithstanding any other term of this Agreement, Btwentyfour may access and use, and shall retain all right, title, and interest in transactional and performance data related to use of the Btwentyfour Marketplace, which may include aggregated and anonymized data based upon Account Holder Data, provided that such data does not reveal the identity of the Account Holder or any individual representative of the Account Holder, nor any physical individual.

5LIMITATIONS OF LIABILITY, ETC.

5.1Limitation of liability

a)Without prejudice to any other limitation stated in this Agreement, the Parties agree that a Party’s liability for damages under this Agreement shall be limited to direct damages in a maximum aggregate amount corresponding to fifty (50) percent of the Account Holder’s aggregate fixed and recurring monthly fees during a period of twelve (12) months under the agreed Membership Package. The existence of more than one claim shall not enlarge or extend the said maximum limitation.

b)Subject to any mandatory requirements under law in respect of liability for gross negligence or intent, in no event shall either Party be liable to the other Party or any third party for any loss of or damage to revenues, profit, goodwill or data, or any other special, incidental, indirect, or consequential damages of any kind, including any interruption of the Account Holder’s business, even if such Party has been advised of the possibility of such damages.

c)The limitations set forth in a) and b) above shall not apply to a Party’s breach of its express indemnity obligations.

d)Notwithstanding anything to the contrary and without prejudice to any agreed limitations, it is acknowledged and agreed that the Account Holder is solely responsible for the back-up of the Account Holder Data, unless otherwise explicitly agreed under this Agreement.

e)Further, for clarity, notwithstanding anything to the contrary and without prejudice to any other limitations set out herein, it is acknowledged and agreed that Btwentyfour specifically excludes any liability with respect to any calculation relating to, or other management or manipulation of Account Holder Data performed by Btwentyfour, which calculation, management, or manipulation has been requested by or on behalf of the Account Holder.

5.2Microsoft Azure services

It is acknowledged that the Btwentyfour Marketplace is dependent on Microsoft Azure cloud computing services (the “Azure Services”). Btwentyfour explicitly disclaims responsibility or liability for any errors, deficiencies, or system failures in the Btwentyfour Marketplace or the Services due to the Azure Services. Hence, it is agreed that Btwentyfour shall not be liable for any costs, expenses, or damages relating to any impact on the Btwentyfour Marketplace or the Services by the delivery or non-delivery of the Azure Services. In this connection, it is acknowledged that Microsoft is a United States company and is therefore subject to United States legislation (however that the Microsoft Azure centres used by Btwentyfour for purposes of the Btwentyfour Marketplace are located within the European Union). The Account Holder is aware and recognizes that Microsoft has obligations in relation to any applicable legislation, including with regard to personal data and the performance of the Services hereunder, and also that Btwentyfour is bound by Microsoft’s terms and conditions for the Azure Services, with a corresponding effect on the Account Holder. For more information about the Azure Services, see: http://www.windowsazure.com/en-us/support/legal.

5.3Force majeure

Neither Party is obliged to pay for damages resulting from that Party being prevented from fulfilling its obligations under this Agreement, if the barrier is caused by events that the Party cannot influence or the Party despite observance of reasonable care could not avoid.

5.4Compliance

The Parties commit to only exchange information in accordance with national data protection regulations and/or confidentiality agreements and especially in accordance with national and international competition/anti-trust law.

6REMUNERATION AND PAYMENT

6.1Applicable fees for the agreed Membership Package are set forth in Appendix A hereto.

6.2All monthly fixed recurring payments are invoiced annually in advance. The first invoicing of such fees will cover the 12 month period immediately following the Effective Date; provided, however, that if the Effective Date does not coincide with the first day of a calendar quarter (i.e., 1 January, 1 April, 1 July, or 1 October), then the first invoicing will cover the period between the Effective Date and up to the first day of the following calendar quarter, as well as the following 12 months (cf. Appendix B).

6.3Hourly Rate Services are invoiced monthly in arrears.

6.4All prices hereunder are set forth in Swiss Francs (CHF). If the Parties agree to use another approved currency for payment of fees hereunder, the (purchase) exchange rate at the opening on the respective invoicing date as published by the Union Bank of Switzerland (UBS) (published at: http://www.ubs.com/global/en/bcqv/calculator.html) shall apply.

6.5Electronic invoicing will be sent to the Account Holder in PDF-format to the designated email address provided by the Account Holder upon signing of this Agreement. The Account Holder is responsible for providing Btwentyfour with any request of change related to the receiving email address in writing (email is sufficient).

6.6Invoices must be paid within thirty (30) days after the invoice date. Overdue payments shall accrue interest in arrears at the rate of zero point five (0.5) percent per month.

6.7Any Account Holder claim based on invoice content needs to be reported to Btwentyfour no later than twelve (12) days after the issuing date of the invoice, failure of which shall forfeit the right of claim.

6.8If the Account Holder is in delay with its payment of fees hereunder for more than thirty (30) calendar days, Btwentyfour shall be entitled, subject to issuance of two (2) consecutive written payment reminders (during which time interest and reminder fees will accrue), however unheeded by the Account Holder, to discontinue and close the Account Holder’s connection to the Btwentyfour Marketplace and the relevant Services forthwith with immediate effect. (For the avoidance of doubt: such discontinuation and closure shall not limit the Account Holder’s payment obligations under this Agreement).

6.9The Account Holder shall be solely responsible for the payment of all customs duties, import taxes, levies, tariffs, and any other similar governmental or regulatory fees or charges related to the Account Holder or its business that may be imposed on either Party in connection with the delivery of the Services under this Agreement.

7CONFIDENTIALITY

Each Party (the “Receiving Party”) undertakes to treat as confidential any information, data, design, prototypes, and/or other material, of a confidential, non-public or proprietary nature relating to or regarding the other Party (the “Disclosing Party”), its business and/or its products and technologies, including without limitation information regarding intellectual property, know-how, research, development, and information relating to the Disclosing Party’s existing and prospective business partners, which the Receiving Party may obtain from the Disclosing Party or which is otherwise disclosed pursuant to this Agreement (“Confidential Information”), irrespective of whether such information is in tangible or intangible form, communicated orally, in writing or on any other form and irrespective of whether it was marked or designated as confidential at the time of disclosure. Furthermore, the Access Data, which the Account Holder is provided with, is always confidential. Account Holder Data is Confidential Information of the Account Holder.

7.1The term Confidential Information shall not include information which the Receiving Party can clearly demonstrate to be within any of the following:

a)information which is now part of the public domain or subsequently enters into the public domain through no fault of the Receiving Party;

b)information which, at the time of disclosure or development hereunder, was already known to and in the possession of the Receiving Party, as evidenced by written records;

c)information received from a third party without restraints as to the use thereof; or

d)information that the Receiving Party is obliged to reveal to authorities or courts according to law or other regulations, subject to the condition that, where permitted, the Receiving Party has informed the Disclosing Party of the obligation in question.

7.2Any information disclosed hereunder shall remain the property of the Disclosing Party. The Receiving Party shall ensure that Confidential Information is not revealed or disclosed or used for any other purpose than for the performance of the Services or as otherwise permitted by this Agreement.

7.3At the expiry or termination of this Agreement, the Receiving Party, upon the Disclosing Party’s written request, shall immediately return to the Disclosing Party any documents and all other materials regarding the Disclosing Party.

7.4The obligations of confidentiality and non-use pursuant to this Section 7 shall apply five (5) years from the date of expiry or termination of this Agreement, except with respect to any information that constitutes a trade secret (as defined under applicable law), in which case the Receiving Party shall continue to be bound by its obligation of confidentiality and non-use under this Agreement for so long as such information continues to constitute a trade secret, but in no event for a period of less than the five (5) year-period specified above.

7.5This Section 7 shall survive the expiry or termination of this Agreement.

8TERM AND TERMINATION

8.1General term

This Agreement takes effect upon the Effective Date and shall be valid for two (2) years thereafter (the “Initial Term”). Unless terminated by either Party at the latest twelve (12) months before the expiration of the Initial Term, the term of the Agreement (the Term) shall be automatically extended by one (1) year at a time, with the same notice of termination period.

8.2Early termination

Either Party may terminate this Agreement with immediate effect if

a)the other Party commits a material breach of its obligations under this Agreement and does not remedy such breach (if possible to remedy) within thirty (30) days of a written notice to such other Party referring to this clause; or

b)the other Party enters into bankruptcy, initiates composition negotiations, is subject to a business reorganization, or is otherwise deemed insolvent.

8.3Price changes; Right to terminate

Btwentyfour reserves the right to amend Service and Membership Package pricing from time to time during the Term. Any such price change will take effect as of the date it is published and apply also to the agreed Membership Package (hence automatically updating the Appendices to this Agreement)..

If the Account Holder does not agree to such price changes, and such price changes affect the total fees payable by the Account Holder hereunder, then the Account Holder shall be entitled to terminate this Agreement and the agreed Membership Package, subject to a six (6) month notice period; on condition, however, that the Account Holder serves notice of termination no later than forty-five (45) calendar days after the date on which the relevant price change was published, failure of which the relevant price change shall come into effect and be validly applied to the agreed Membership Package. (For clarity, subject to due notice of termination, prices will remain unchanged for the Account Holder during the six (6) month notice period).

8.4Notice of termination

Any notice of termination pursuant to this Section 8 shall be served in accordance with Section 10.5 below.

9TRADE COMPLIANCE

9.1Compliance with export laws

9.2The Account Holder acknowledges that the provision of the Services under this Agreement may be subject to applicable export control laws and regulations, including but not limited to the laws of the European Union, the United States, the United Kingdom, and other relevant jurisdictions. The Account Holder agrees to comply fully with all applicable export laws and regulations and further agrees that it shall not, directly or indirectly, re-export, transfer, or divert any Services or any portion thereof to any destination, entity, or person prohibited or restricted under such laws. Btwentyfour shall not be liable for any delays, additional costs, or penalties resulting from the Account Holder's failure to fulfil these obligations.

9.3Responsibility for sanctions

The Account Holder warrants that it is not designated on any government-issued sanctions list, including without limitation the EU Consolidated Financial Sanctions List, the US Office of Foreign Assets Control (OFAC Specially Designated Nationals and Blocked Persons List), the UK Sanctions List, or any similar list maintained by any other relevant jurisdiction. The Account Holder shall be solely responsible for ensuring that its use of the Services does not violate any international or national trade or financial sanctions or embargoes.

9.4Indemnification

The Account Holder agrees to indemnify, defend, and hold harmless Btwentyfour from and against any and all claims, losses, damages, liabilities, penalties, fines, costs, and expenses (including reasonable legal fees) arising out of or relating to the Account Holder's breach of its obligations under this Section 9, or any violation of applicable export control laws, or trade or financial sanctions by the Account Holder.

9.5Notification

The Account Holder shall promptly notify Btwentyfour in writing of any restrictions or changes in export control laws, or trade or financial sanctions that may affect the Account Holder's obligations under this Agreement. The Account Holder shall cooperate fully with Btwentyfour in any official or unofficial audit or inspection related to applicable export or sanctions compliance.

9.6Termination

Without prejudice to what is otherwise stipulated in this Section 9, in the event that Btwentyfour determines, in its sole discretion, that the provision of the Services hereunder may violate any applicable export control laws or trade or financial sanctions, Btwentyfour shall be entitled to immediately suspend or terminate this Agreement without any liability to the Account Holder.

10GENERAL PROVISIONS

10.1Governing law and disputes

This Agreement shall be governed by, construed and enforced, in accordance with Swiss law. The place of jurisdiction is Zug (CH). Any dispute arising out of or relating to this Agreement that the Parties cannot resolve by negotiation shall be settled in the general courts Switzerland, with the Cantonal Court of Zug as first instance.

10.2No waiver

The failure of any Party hereto to exercise any right, power, or remedy provided under this Agreement shall not constitute a waiver by such Party of its right to exercise any such or other right, power or remedy or to demand such compliance at any time thereafter.

10.3Entire agreement

This Agreement constitutes the entire Agreement and understanding of the Parties and supersedes all prior agreements or representations, written or oral, between the Parties relating to the subject matter hereof.

Each Party acknowledges and agrees that, in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding of any person (whether Party to this Agreement or not) other than as expressly set out in this Agreement as a warranty or representation.

10.4Written form

To be valid, any amendment or supplement to this Agreement, as well as any declaration under this Agreement, must be made in written form and signed by both Parties.

10.5Notices

Any notices between the Parties in relation to this Agreement shall be sent by email or registered mail to the address listed in the preamble of this Agreement or to the address that a Party has subsequently notified. Such notice will not be effective until received and shall be deemed to have been received:

-if sent by email: by confirmation from the other Party; or

-if sent by registered mail: five (5) days after dispatch.

10.6Assignment

Unless expressly stated below, neither Party may assign this Agreement or any of its rights or interests hereunder, nor assign or delegate any obligation to be performed hereunder, without the prior written approval of the other Party.

Notwithstanding the above, either Party may, subject to prior written notice to the other Party, assign this Agreement or any of its rights or interests or obligations hereunder to a company within the same group of companies. Furthermore, Btwentyfour may always assign or pledge its rights to receive payments hereunder to a third party as part of a factoring solution.

10.7Personal data

When providing access to the Btwentyfour Marketplace and any associated Services to the Account Holder, Btwentyfour may process personal data as part of Account Holder Data, for which the Account Holder is responsible in accordance with applicable data protection laws. The Parties have entered into a Data Processing Agreement, Appendix D, in order to fulfil the requirement of a written agreement between a controller and a processor of personal data as set out under applicable data protection laws. In this connection, it is acknowledged that the Btwentyfour Marketplace is located within the European Union area and hence subject to European Union data protection law and practice.

This Agreement has been executed electronically.

BTWENTYFOUR AG THE ACCOUNT HOLDER