Digital Solution Terms and Conditions of Bühler	

1.	Conclusion of Agreement and Scope.
i.	These present DSTC apply to the Agreement made between the Customer and Bühler for providing the Digital Solution indicated and fur-ther specified in the Service Description as included in the Agreement and/or additional contractual documents forming an integral part of the Agreement, irrespective of whether an order is placed by an online or an offline transaction. If the parties expressly agree in writing, the Agreement might provide for rules that deviate from and/or prevail over the present DSTC.
ii.	Subject to the terms of the present DSTC and the terms of the Agreement, including but not limited to Customer’s obligations, Bühler grants the Customer a non-exclusive, non-transferable and non-sub licensable right to access and use the Digital Solution during the term of the Agreement via interfaces and system elements as specified in the Service Description for its internal business purposes. 
iii.	Any additional services provided by Bühler on request of the Customer, such as, for instance, implementation or installa-tion of the Digital Solution or support, and/or the rent or purchase of equipment is subject to a separate Agreement to be concluded be-tween the parties in accordance with the respective Bühler general terms and conditions as applicable and will be charged additionally. 
2.	Operation of Digital Solution.
i.	Bühler shall operate the Digital Solutions during the term of the Agreement by using adequately skilled personnel.
ii.	Subject to Customer’s due fulfilment of all of its obligations, the availability, if any, of the Digital Solution shall be defined and set forth in the respective Service Description. 
iii.	Bühler shall provide and Customer shall use the Digital Solution by using generally accepted, appropriate and applied in-dustry standard information security technologies and techniques. Bühler operates an information security management system (ISMS) and adheres to high business information security standards with the objective to preserve confidentiality, integrity and availability of infor-mation processed by Bühler. More details are available under http://www.buhlergroup.com/Information_Security_global_20200301_en.
iv.	The Customer acknowledges and agrees to be solely responsible to continuously ensure and provide as described in the Service Description (a) a secure connection to the public internet with appropriate bandwidth; (b) any hardware, software, or other equip-ment necessary to establish and maintain the secure connection; and (c) any further requirements specified therein.
v.	Except if explicitly otherwise agreed in the Agreement, Bühler and/or Bühler’s subcontractors, are permitted to remotely via including, but not limited to, internet or mobile phone connection access, monitor and/or adapt, in accordance with the terms set forth in the Agreement, the Customer Equipment, as necessary to support and/or provide the Digital Solution.
vi.	Bühler shall not have any obligation under the present Agreement if and to the extent the Customer fails to duly fulfil its co-operation obligations, especially but not limited to those described in clause 5 and 6 of the DSTC. 
3.	Bühler’s Obligation.
i.	Bühler shall safeguard that the Digital Solution and/or Remote Support will be provided (i) with all reasonable skill and care and in accord-ance with applicable professional standards adhered to by companies offering services of the type offered by Bühler; (ii) in accordance with the applicable laws and, (iii) not to cause intentionally any fault or malfunction in the software or any interruption to the business pro-cesses of Customer.
ii.	Further Bühler shall obtain the necessary licenses or rights required for the due operation of the Digital Solution and/or Remote Support and that such licenses and rights will be valid for the duration of the Agreement.
iii.	If the Digital Solution and/or Remote Support do not meet the requirements described in this clause 3 i and ii. above, at the Customer’s request, Bühler will use its reasonable best efforts to remedy any defect and to ensure that the Digital Solution and/or the Re-mote Support will substantially be in compliance with such requirements.  
iv.	The remedies as described in clause 3 iii are Customer’s sole remedies for the Digital Solution and/or the Remote Support and are exclusive and in lieu of all other remedies or warranties (which are expressly disclaimed), whether express or implied, statutory, common law or otherwise, including warranties for workmanship or performance, merchantability, fitness for a particular purpose.
4.	Fee.
i.	In exchange for the performance of the Digital Solution in accordance with the terms of the Agreement, the Customer shall pay the Fee as specified in the Agreement.
ii.	The Fee shall be deemed to be net without any deduction, cash discount whatsoever. Any and all additional charges, such as but not lim-ited to, insurance premiums, fees for export, transit, import and other permits, as well as for certifications, value-added taxes, sales taxes, as well as all other kinds of taxes, fees, levies, custom duties and the like which are levied against Bühler in connection with the Digital So-lution are additionally paid by the Customer.
iii.	After the Minimum Term Bühler may, by giving 30 calendar days' prior written notice, at any time change the Fee and/or the basis on which it is calculated. The Fee however may not be adapted more than once every 12-months commencing after the Minimum Term or any anniversary of that date. 
iv.	Within 20 calendar days after receipt of Bühler’s notice to adapt the Fee, the Customer may give written notice to Bühler to terminate the Agreement as of the date the adaption would enter into force.
5.	Terms of Payment.
i.	The Customer shall make payments in accordance with the terms set forth in the Agreement within 30 (thirty) days of the invoice date. 
ii.	Customer’s payment obligation is fulfilled after the total Fee has been credited in full to Bühler’s bank account indicated by Bühler. 
iii.	Customer shall not be entitled to retain or set-off any payments against counter-claims.
iv.	Without prejudice to any other contractual or statutory right of Bühler, if, for any reason whatsoever, a payment to be ef-fected by the Customer is overdue, or if Bühler has valid reasons to expect that Customer will not make payment on time, Bühler may sus-pend the further performance of the Digital Solution and/or Remote Support until Bühler has received satisfactory security within a reason-able period of time. If no agreement is found and/or no securities are provided within such reasonable period of time, Bühler is entitled to terminate the Agreement and reserve any further rights that Bühler may have.
v.	In case of late payment, Bühler is entitled to charge interest for delay of 5 % over the then relevant 12-months-LIBOR (or any correspond-ing successor exchange rate), per annum, for the agreed contractual currency with effect from the agreed due date for payment until re-ceipt of the outstanding payment plus the agreed late payment interest. In case the relevant LIBOR is negative, a base floor rate of 0.0% shall apply. The foregoing shall be without prejudice to any other right of Bühler under the Agreement. Payment of interest for delay does not release the Customer from its contractual obligations.
6.	Customer's Obligations.
i.	The Customer shall, at its expense, promptly provide all resources and documents and take all measures reasonably required for the oper-ation of the Digital Solution and/or Remote Support. Customer further explicitly undertakes to solely use the Digital Solution and/or Re-mote Support in accordance with the terms and conditions of the Agreement and for the purpose it was designed for as stated in the Ser-vice Description. 
ii.	Without limiting the generality of the foregoing, the Customer shall (i) co-operate with Bühler in all matters relating to the Agreement, (ii) provide Bühler with such information and materials as Bühler may reasonably require in order to perform the Agreement, and ensure that such information is complete and accurate in all material respects; (iii) obtain and maintain all necessary licenses, permissions and con-sents which may be required; (iv) comply with all applicable laws, (v) keep all Bühler Materials at the Customer’s premises in safe custody at its own risk, (vi) maintain the Bühler Materials in good condition until returned to Bühler, (vii) not dispose of or use the Bühler Materials other than in accordance with Bühler’s written instructions, (viii) ensure that the Customer Equipment fulfils the requirements set forth in the Agreement, (ix) immediately inform Bühler of any exceptional circumstances or special requirements influencing the Agreement, and (x) not change the set-up of the Bühler Materials without Bühler’s prior written consent.
iii.	The Customer acknowledges that Bühler’s performance might be delayed, negatively impacted or completely interrupted if Customer fails to duly or timely fulfil any of its contractual obligations.
iv.	Further specific co-operation obligations of the Customer, as far as necessary for the provision and/or operation of the Digital Solution, may be set forth in the Agreement.
7.	Changes to the Digital Solution.
i.	Bühler may from time to time develop Updates. Bühler will use commercially reasonable efforts to: (a) rollout and install appropriate Up-dates that require a temporary expected downtime of the Digital Solution, and (b) provide notice to Customer, when reasonable and possi-ble. If an Update requires more than an expected temporary downtime the parties shall mutually agree on the date and time of such Up-date. Whereby Bühler shall ensure that any Update shall not have material adverse effect to the Customer Equipment.
ii.	The Customer acknowledges and agrees to timely install any Update if so required in the individual situation. Further the Customer  acknowledges and agrees that if it prevents installation of an Update (i) the Customer may be deprived of relevant functionality of the Digi-tal Solution and (ii) Bühler has no obligation and liability whatsoever in respect of the Digital Solution, and (iii) Bühler may give notice of early termination in accordance with clause 18 below.
iii.	At any time Bühler may otherwise reasonably change the Digital Solution, and implement such change, as far as such change does not materially adversely affect the quality and/or security of the Digital Solution. By giving 30 calendar days’ prior written no-tice Bühler may, further, implement changes materially adversely affecting the quality and/or security of the Digital Solution if (a) such change is required by mandatory applicable law, (b) a subcontractor implemented material changes or (c) the relevant functionality of the Digital Solution is definitely discontinued. Within 30 calendar days after the date of the notification of the material adverse change Cus-tomer may terminate the Agreement by giving written notice.
8.	Third Party Products.
i.	The Customer acknowledges that Bühler’s performance may rely on and/or interoperate with Third Party Products. Customer further acknowledges and agrees that Third Party Products (i) are beyond Bühler’s reasonable control; (ii) are subject to the terms and conditions of the respective license; and (iii) may impact the use and reliability of the Digital Solution.
ii.	Bühler undertakes to apply reasonable care in selecting the Third Party Products and their relevant suppliers. The Customer, however, acknowledges and agrees that Bühler has no obligation, provides no warranty and assumes no liability, in respect of these Third Party Products. Even though Bühler applied due care in choosing any Third Party Products, Bühler does not, and does not have to, ensure that these Third Party Products will operate in a reliable manner and will not impact the way the Digital Solution is being operated. The Customer acknowledges and agrees that if the Third Party Products affect the Digital Solution the Customer shall have, to the extent permitted by applicable law, no right to raise any claim against Bühler. On Customer’s written request, Bühler will provide a list of the Third Party Prod-ucts and their suppliers.
9.	Customer's Default.
i.	Without limiting or affecting any other right or remedy available, if performance of any of Bühler's obligations under the Agreement is pre-vented or delayed by an act of the Customer, or an omission or failure by the Customer to perform any contractual obligation, as set forth, but not limited to, in clause 6 Customer’s Obligations, Bühler shall (i) have the right to suspend and/or delay the performance of any of its contractual obligation, especially but not limited to the provision and/or operation of the Digital Solution and/or Remote Support until the Customer remedies the Customer Default; and (ii) have the right to carry out Customer’s obligations, or otherwise take appropriate measures to avoid or alleviate the effects of the Customer Default.
ii.	The Customer undertakes to remedy any Customer Default without delay. After remediation of Customer Default Bühler shall, if reasonable, resume its contractual obligation within due course.
iii.	On written demand, Customer will duly reimburse Bühler for any costs and/or losses directly or indirectly sustained by Bühler due to the Customer Default as far as Customer has not remedied such Customer Default within reasonable time. For the avoidance of doubt Bühler is not liable for any direct or indirect costs, expenses and/or losses sustained or incurred due to a suspension or delay based on a Customer Default. 
10.	Limitation of Liability.
i.	Bühler's liability for damages of any kind (such as, but not limited to, damages to property, damages caused by personal injury, as well as any other direct or indirect or consequential damages) caused to the Customer by Bühler and/or Bühler's directors, officers, employees and other auxiliary persons, sub-contractors shall be excluded to the fullest extent permitted by applicable law. The remedies expressly set out in the present DSTC are the sole remedies of the Customer in case of a breach of the Agreement by Bühler, and any further liability or obligation of Bühler and any further rights or claims of the Customer, in particular claims not expressly mentioned for damages, reduction of Fee, termination of or withdrawal from the Agreement are expressively excluded.
ii.	The foregoing limitation shall apply regardless of the legal basis of the claim, such as, but not limited to, non-performance, non-proper performance, breach of warranty for defects or in title, default or tort. If, irrespective of the reason, the foregoing limitation of liability does not apply, Bühler’s maximum liability out of or in connection with the Agreement is limited to the Fee paid under the Agreement.
iii.	The Customer shall immediately notify Bühler of any complaint it may have in writing, specifying in detail the reasons for its complaint. Only reproducible failures are considered a default of Bühler.
11.	Data.
i.	By means of the Digital Solutions, Bühler may receive Third Party Data and/or Customer Data. Third Party Data and Customer Data to-gether “Raw Data”. Bühler will assemble, store, analyze, diagnose, combine and otherwise operate such Raw Data in order to create Data. 
ii.	The Customer shall ensure, and herewith confirms, the legality, reliability, integrity, and quality of the Customer Data as well as the legality of the use of the Customer Data as contemplated herein. The Customer herewith grants and assigns to Bühler a perpetual, worldwide, roy-alty-free license and right to use the Customer Data (including, for the avoidance of doubt, Data that is derived from Customer Data) for the provision of the Digital Solution to the Customer as well as the provision of similar digital solutions to other customers and, more gen-erally, for use within any present and/or future digital solution Bühler provides and/or may provide to the Customer and other customers. This right includes, in particular, the sharing of Customer Data and Data with, and its transfer to, Bühler’s subcontractors, and/or third par-ties for providing the Digital Solution to the Customer as well as similar digital solutions to other customer, developing existing or new technologies, products, services, software and/or Digital Solutions as well as anonymized benchmarking. For the avoidance of doubt Bühler will keep the Customer Data confidential in accordance with clause 15 of the present DSTC and not share non-anonymized Custom-er Data with other customers. All rights in technology, products, software and/or Digital Solution developed by Bühler out of or in connec-tion with the Customer Data and Data exclusively belong to Bühler and Bühler is entitled to use them for free and any purpose Bühler deems fit.
iii.	As far as Third Party Data forms part of, or has been used to create, the Data which Bühler will make available to the Cus-tomer, the Customer acknowledges and agrees that legality, reliability, integrity, accuracy and quality of such Third Party Data is the sole responsibility of the third party from which such Third Party Data was received and that to the extent permitted by applicable law Bühler has no obligations and assumes no warranty and no liability, in respect of such Third Party Data. 
iv.	Bühler provides all Data “as is”. It is Customer’s sole responsibility to ensure that its use of the Data is fit for its intended purpose. Bühler has no duty to take any action as to how the Customer may interpret and/or use the Data or Customer’s actions based on the receipt of the Data. The Customer further acknowledges and agrees that to the extent permitted by applicable law Bühler makes no and shall make no warranty (express, implied or statutory), including any warranty with respect to accuracy, completeness or fitness for any specific purpose in respect to the Data.
12.	Pilot Digital Solutions.
i.	If the Digital Solution is indicated as a pilot, trial and/or beta version or is offered free of charge it qualifies as a Pilot. 
ii.	Pilots are subject to additional limitations of the present clause 12, which prevail over the deviating terms of the present DSTC. Pilots are to the extent permitted by applicable law provided “as is” without any warranty and excluding all liability to the fullest extent permitted under applicable law. 
iii.	Without limiting the generality of the foregoing Customer especially acknowledges and agrees that Pilots may not have been fully tested or verified and that therefore they may become unavailable, be changed or discontinued, their performance might be negatively affected and/or might not meet industry standards. Therefore, Pilots might negatively affect Customer’s internal processes and business operations or impair the functionalities of Customer’s Equipment.
iv.	Customer may only use Pilots for its internal use for the purpose of reviewing, evaluating and testing Pilots. The Customer acknowledges and agrees that the use of Pilots is at its sole risk. 
13.	Intellectual Property Rights.
i.	All intellectual property rights in, arising out of or in connection with the Digital Solution and the Data (other than intellectual property rights in any materials and/or Customer Data provided by the Customer) shall be owned by Bühler or its suppliers, as the case may be.
ii.	By entering into the Agreement, the Customer agrees that Bühler has the right to use all such existing and future intellectual property rights that may inure to the benefit of the Customer (or its employees or other auxiliary persons of the Customer) by operation of applicable law to Bühler, and the Customer undertakes to do all acts and sign all documents that may be required to perfect such use. The Customer waives any moral rights in the Digital Solution and/or Data to which it is now or may at any future time be entitled under any applicable law. The Customer shall ensure and guarantee that all of its employees and other auxiliary persons that may have been involved in the creation of such intellectual property rights have validly assigned the rights they may have to the Customer, and have waived any moral rights they may have, so that the Customer can validly and fully provide the right to use such intellectual property rights to Bühler.
iii.	Notwithstanding the foregoing, Customer shall not, directly or indirectly, reverse engineer or aid or assist in the reverse en-gineering of all or any part of Digital Solution except and only to the extent that such activity is mandatorily permitted by applicable law. Reverse engineering includes, without limitation, decompiling, disassembly, sniffing, peeling semiconductor components, or otherwise de-riving the source code.
iv.	The Customer grants Bühler a non-exclusive, royalty-free, non-transferable license to copy and modify Data provided by the Customer to Bühler for the term of the Agreement for the purpose of providing the Digital Solution and Remote Support to the Cus-tomer.
14.	Force Majeure.
i.	Either party shall be entitled to suspend performance of its contractual obligations if and to the extent its performance or performance by a subcontractor is directly or indirectly prevented by reasons of Force Majeure.
ii.	Neither party shall be deemed to be in default of its contractual obligations and no liquidated damages or indemnity shall be claimed whilst performance thereof is prevented by Force Majeure and the agreed timetable shall be extended accordingly by a period equal to that dur-ing which the Force Majeure contingencies and their effects have occurred. Each party shall fulfil its obligations insofar as they have be-come due before the occurrence of Force Majeure.
iii.	In case of Force Majeure lasting for more than 6 (six) consecutive months, each party is entitled to terminate the Agreement by written notice to the other party, whereby the parties shall mutually agree on the allocation of the accrued costs. 
15.	Confidentiality.
i.	The parties undertake to keep Confidential Information confidential and to not disclose Confidential Information to any third party other than to their officers, employees or advisors who have a need to know for the performance of the Agreement and are bound by no less stringent confidentiality undertakings.  
ii.	The confidentiality obligation shall not apply to information which is (i) trivial or obvious; (ii) in the public domain through no fault of the receiving party; (iii) at the time of disclosure already known to the receiving party other than as a result of a breach of any obligation of confidentiality hereunder; or (iv) required to be disclosed by law based on order of the competent authorities. It is understood, however, that if the receiving party receives an order to disclose the Confidential Information it shall exercise in good faith all applicable legal reme-dies to prevent, or limit to the largest possible extent, the disclosure of the other party's Confidential Information and, to the extent permit-ted by applicable law, immediately inform the disclosing party of any such disclosure order.
iii.	The confidentiality obligations shall survive the termination of the Agreement for as long as the disclosing party has a rea-sonable interest in the confidentiality of the Confidential Information.
16.	Data Protection.
i.	The Customer and Bühler acknowledge that the processing of personal data is not the primary purpose of the Agreement. However, if and to the extent processing of personal data as defined under applicable data protection laws (i.e., as a rule, information relating to an identi-fied or identifiable natural person) is required for and/or in connection with the performance of the Agreement, Bühler and the Customer shall comply with the applicable data protection laws. 
ii.	The Customer, in particular, acknowledges and agrees that Bühler may have access to Customer Personal Data. Bühler will, and the Cus-tomer confirms Bühler may, process (or have, on its behalf, processed) Customer Personal Data in accordance with Bühler’s privacy poli-cy, available at www.buhlergroup.com/privacy in order to enter into and perform the rights and obligations under the Agreement. The pur-poses for which Bühler processes Customer Personal Data include, but are not limited to, order and payment processing, tolls and im-port/export management, customer relationship management, business accounting and general administrative purposes. 
iii.	The Customer further undertakes to inform its personnel and other above mentioned persons of whom Bühler may, in ac-cordance with the previous paragraph, process Customer Personal Data and obtain valid consent (if required under applicable data protec-tion law) thereby especially pointing out Bühler’s right to transfer Customer Personal Data to third parties or third parties abroad while en-suring a comparable data protection level as described in Bühler’s privacy policy.
iv.	The parties agree that insofar as Bühler processes Customer Personal Data of the Customer for its own business purposes pursuant to the foregoing paragraphs, Bühler acts as independent controller (as defined under applicable data protection law).
17.	Compliance.
i.	In exercising its rights and performing its obligations under this Agreement Customer, its subsidiaries and any of its respective businesses or employees shall comply with all applicable laws, regulations and orders, including but not limited to those related to anti-corruption and export controls (understood as and including but not limited to the transfer of controlled products, technologies or services for the devel-opment, production, use or stockpiling of nuclear, chemical, or biological weapons or missiles) imposed by the United States of America (U.S.), European Union (EU), United Kingdom (UK), Switzerland and/or any other countries.
18.	Term and Termination.
i.	The Agreement enters into effect upon confirmation by Bühler and is valid at least for the Minimum Term, if any, unless early terminated pursuant with the present DSTC. 
ii.	Unless otherwise provided in the Agreement, either party may terminate the Agreement by giving one month prior written notice per end of the Minimum Term or any anniversary thereof. Customer may further terminate the Agreement if Customer objects to a change of the DSTC as set forth in clause 19 or to a material adverse change of the Digital Solution as set forth in clause 8 or to a change of the Fee as set forth in clause 5.
iii.	If a party commits any material breach, the non-breaching party may (i) serve written notice on the breaching party describ-ing the breach and requiring the breaching Party to remedy the breach within 30 working days from receipt of the written notice, and (ii) if the breach is not remedied within the 30 working days grace period terminate the Agreement by submitting a written notice. 
iv.	The Agreement can be terminated by either party with written notice at any time if the other party ceases or threatens to cease to carry on business or becomes unable to pay its debts or if bankruptcy or composition or similar proceedings are opened against that party.
v.	Upon termination of the Agreement for whatever reason (a) Bühler is entitled to receive (at least) payment for the Digital Solutions provided up to the date of termination; (b) Customer shall cease using the Digital Solution; (c) Customer is entitled to obtain subject to the specifica-tion set forth in the Service Description a copy of Customer Data against payment of a fee compensating Bühler’s time and effort. Termi-nation is without prejudice to any other right or remedy of either party under the Agreement and shall not affect the parties’ accrued rights.
19.	Miscellaneous.
i.	Nothing in the Agreement shall be read and/or understood to create a partnership or joint venture between the parties.
ii.	The parties may not assign or otherwise transfer any of their rights or obligations under the Agreement without prior written consent of the other party. Bühler may, however, transfer its rights and obligations hereunder and/or delegate the exercise of its rights and/or the perfor-mance of its obligations under the Agreement to another Bühler affiliate. 
iii.	The Agreement shall be binding upon signature and inure to the benefit of the parties and their authorized successors.
iv.	The Agreement supersedes any and all prior agreements, either oral or written, between the parties hereto with respect to the subject matter of the Agreement and replaces and supersedes any general terms and conditions of either party not expressly included in by reference in the Agreement. No representations, inducements, promises, or agreements, orally or otherwise, have been made, that are not embodied in the Agreement. 
v.	If any provision of the Agreement shall be found to be invalid or unenforceable, the invalidity or unenforceability of that provision shall not affect the other provisions of the Agreement. The parties will substitute the invalid or unenforceable provision with a provision that achieves to the greatest extent possible the same legal and commercial objectives.
vi.	Bühler reserves the right to change the present DSTC at any time, with prior notice. The most recent version of the DSTC will govern the Digital Solution and Remote Support and will always be available on the respective website the Digital Solution is operated. If the Customer does not contradict in writing within 30 days from Bühler posting the new version of the DSTC on the respective website and continues to use the Digital Solution, the Customer shall be deemed to have agreed to be bound by the revised DSTC. The last update is indicated at the end of the present DSTC.
20.	Governing law and arbitration/jurisdiction.
i.	The Agreement and the present DSTC are exclusively governed by the substantive laws at Bühler’s place of jurisdiction. Any dispute aris-ing out of or in connection with the Agreement and/or the present DSTC shall be finally settled under the Rules of Arbitration of the Interna-tional Chamber of Commerce by one arbitrator appointed in accordance with the said rules. The language of arbitration shall be English. The place of arbitration shall be Zurich, Switzerland if Bühler is located in Europe, Africa, Middle East or South America. If Bühler is located in Asia or Oceania the place of arbitration shall be Singapore and if Bühler is located in North America, the place of arbitration shall be New York, USA. 
 

* * * * * * * * * 
 
Glossary

Capitalized terms used in this DSTC shall have the meaning as set forth below:

	
Agreement	the understanding between the Customer and Bühler whereby the present DSTC form an integral part.
Bühler	Party to the Agreement providing the Digital Solution, whereby all Bühler affiliates are included.
Bühler Materials	materials, equipment, documents and other property of Bühler.
Confidential Information	information disclosed to or obtained by a party under the Agreement relating to the other party's intel-lectual property, know-how, business, customers, as well as other information that by its nature or content reasonably appear to be confidential.
Customer	Party to the Agreement obtaining the Digital Solution as defined in the Agreement.
Customer Data	data received by Bühler from or through Customer Equipment.
Customer Default	an act and/or an omission or failure by the Customer to perform any contractual obligation, as set forth, but not limited to, in clause 6.
Customer Equipment	Customer’s machine, device and/or equipment dedicated for the use of the Digital Solution and/or Remote Support.
Customer Personal Data	data of the Customer’s officers, employees, representatives, consultants, contractors and other natural persons working for or on behalf of the Customer and by which the natural personal can be identified or is identifiable.
Data	Raw Data that has been assembled, stored, analyzed, diagnosed, combined and otherwise operated by Bühler in order to create output data.
Digital Solution	the service and/or solution as set forth in the Service Description and provided over an online connec-tion.
DSTC	the present Digital Solution Terms and Conditions.
Fee	the remuneration in exchange for the performance of the Digital Solution as described in detail in the Service Description and payable by the Customer in accordance with the terms of the Agreement
Force Majeure	events beyond either party’s (or its subcontractor's) reasonable control, which are unforeseeable at the time of conclusion of the Agreement and which render the further performance impossible or commer-cially unreasonable difficult, such as strike, government action, riot, armed conflict, accident, epidemic, extremes of weather or event of nature, unavailability of raw materials or of normal means of transport and cyber-attacks.
Minimum Term	minimum duration as described in the Agreement.
Pilot	Digital Solution indicated as pilot, trial and/or beta version or offered free of charge.
Raw Data	Customer Data and Third Party Data combined.
Remote Support	remote access, monitoring and/or adaption of the Customer Equipment, or as otherwise necessary in order to support and/or provide the Digital Solution.
Service Description	documentation forming an integral part of the Agreement and describing the Digital Solution, collected Raw Data as well as Customer’s obligation in detail.
Third Party Data	data received by Bühler from or through equipment used by other Bühler customers.
Third Party Products	products, software (such as proprietary, freeware or open source software) and/or services procured, licensed and/or used by Bühler as well as third party software embedded in Customer Equipment and/or Bühler Materials.
Updates	patches, enhancements and/or modifications to improve the security as well as the performance of the Digital Solution, Remote Support and/or the underlying systems and components.


 
Country specific terms
As far as the applicable law as defined in clause 20 of the present DSTC in accordance with Bühler’s location is one of the countries mentioned just below, the hereinafter paragraphs shall apply and replace the corresponding paragraph of the DSTC above or if there is no corresponding clause in the DSTC shall apply additionally.


China
5.	Terms of Payment.
v.	In case of late payment, Bühler is entitled to charge interest for delayed payment at a rate of 50 % over the then relevant 12-months-LPR (Loan Prime Rate or any corresponding successor exchange rate), per annum, for the agreed contractual currency with effect from the agreed due date for payment until receipt of the outstanding payment plus the agreed late payment interest. The foregoing shall be without prejudice to any other right of Bühler under the Agreement. Payment of interest for delay does not release the Customer from its contractual obligations.

20.	Governing law /jurisdiction.
The Agreement and the present DSTC are exclusively governed by the substantive laws at Bühler’s place of jurisdiction. The competent peo-ple’s court at the place where Bühler locates shall have exclusive jurisdiction over all the disputes arising from the DSTC or Agreement. All the costs incurred by both parties relating to the lawsuit (including but not limited to lawyer’s fee, litigation fee, property preservation fee, guaran-tee fee, and travelling costs, etc.) shall be borne by the losing party.


India
10.	Limitation of liability
i.	Bühler's liability for damages of any kind (such as, but not limited to, damages to property, damages caused by personal injury, as well as any other direct or indirect or consequential damages) caused to the Customer by Bühler and/or Bühler's directors, officers, employees and other auxiliary per-sons, sub-contractors shall be excluded to the fullest extent permitted by applicable law. The remedies expressly set out in the present DSTC are the sole remedies of the Customer in case of a breach of the Agreement by Bühler, and any further liability or obligation of Bühler and any further rights or claims of the Customer, in particular claims not expressly mentioned for damages, reduction of Fee, termi-nation of or withdrawal from the Agreement are expressively excluded.  Notwithstanding anything to the contrary, the maximum liability of Bühler shall not exceed the Fees paid by the Customer.
iv.	The Customer shall indemnify and hold harmless Bühler for any loss/damage caused to Bühler or any claim made against Bühler due to any act or omission of the Customer or any breach of these DSTC.
16.	Data protection
i.	The Customer and Bühler acknowledge that the processing of personal data is not the primary purpose of the Agreement. However, if and to the extent processing of personal data as defined under applicable data protection laws (i.e., as a rule, information relating to an identified or identifiable natural person) is required for and/or in connection with the performance of the Agreement, Bühler and the Customer shall com-ply with such applicable data protection laws (including but not limited to the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 issued by the Indian Ministry of Communications and Information Technology (Department of Information Technology)) while processing any such personal data. The usage of any personal data shall be subject to the receipt of consent from the owner of such personal data, in the manner prescribed under the afore-mentioned legislations.
v.	Any personal data shall be disclosed only with the prior written consent of the owner of such data and shall be disclosed only to the extent specifically sought by the any governmental, judicial or regulatory authority. 
vi.	All intellectual property of any nature, including copyright, trademark, patents, designs etc. which subsist in the personal data that is pro-vided to Bühler or is in the possession of Bühler shall remain under the ownership of such persons who owned such personal data at the time of provision/disclosure of the same to Bühler. 

Indonesia
Please refer to the bilingual version.


Mexico
5. Terms of Payment.
iv.	Without prejudice to any other contractual or statutory right of Bühler, if, for any reason whatsoever, a payment to be effected by the Customer is overdue, or if Bühler has valid reasons to expect that Customer will not make payment on time, Bühler may suspend the further performance of the Digital Solution and/or Remote Support until Bühler has received satisfactory security within a reasonable period of time. If no agreement is found and/or no securities are provided within such reasonable period of time, Bühler is entitled to terminate the Agreement and claim damages due to Customer’s default. There is no need of prior court or arbitral resolution for the suspension and/or termination right in favour of Bühler.
18. Term and Termination.
iii.	If a party commits any material breach, the non-breaching party may (i) serve written notice on the breaching party describing the breach and requiring the breaching Party to remedy the breach within 30 working days from receipt of the written notice, and (ii) if the breach is not remedied within the 30 working days grace period terminate the Agreement by submitting a written notice. Any such termination is without further liability and valid without the need of prior court or arbitral resolution.

Singapore
19.	Miscellaneous
vii.	 A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act to enforce any term of this DSTC.

South Africa
Customer Personal Data	data relating to the Customer, of the Customer’s officers, employees, representatives, consultants, contractors and other natural persons (i.e. both natural and, where applicable, juristic persons) working for or on behalf of the Customer and by which the natural personal can be identified or is identifiable.
2.  Operation of Digital Solution
v. Except if explicitly otherwise agreed in the Agreement, the Customer hereby consents and permits Bühler and/or Bühler’s subcontractors, to remotely via including, but not limited to, internet or mobile phone connection access, monitor and/or adapt, in accordance with the terms set forth in the Agreement, the Customer Equipment, as necessary to support and/or provide the Digital Solution.
16.	Data Protection.
i. The Customer and Bühler acknowledge that the processing of personal data is not the primary purpose of the Agreement. However, if and to the extent processing of personal data as defined under applicable data protection laws (i.e., as a rule, information relating to an identified or identifiable natural or juristic person) is required for and/or in connection with the performance of the Agreement, Bühler and the Customer shall comply with the applicable data protection laws.
iv. The parties agree that insofar as Bühler processes Customer Personal Data of the Customer for its own business purposes pursuant to the foregoing paragraphs, Bühler acts as an independent responsible party (as defined under applicable data protection law).

Russia
7.	Digital Solution amendments
i.	Bühler may from time to time develop patches, enhancements and/or modifications to improve the security as well as the performance of the Digital Solution, Remote Support and/or the underlying systems and components (“Updates”). The Customer acknowledges and agrees that Bühler may rollout and install appropriate Updates that only require a temporary expected downtime of the Digital Solution, without provid-ing notice or obtaining specific consent. If an Update requires more than a temporary downtime the parties shall mutually agree on the date and time of the rollout of such Update. However, if such Updates affect the present DSTC, Bühler will notify the Customer on such Updates.
11.	Data
i.	By means of the Digital Solutions, Bühler may receive data from or through the equipment used by other customers (“Third Party Data”) and/or from or through the Customer Equipment (“Customer Data”; Third Party Data and Customer Data together “Raw Data”). The Customer Data will include any technical data related to performance of the Digital Solution and underlying systems and components, including the embedded software, as well as other data that may be provided by the Customer or otherwise obtained from the Customer by Bühler. Bühler will assemble, store, analyze, diagnose, combine and otherwise operate such Raw Data in order to create output data (“Data”). 
16.	Data protection
v.	In such case, when processing personal data for performance of the Agreement, these DSTC, and provision of the Digital Solution, Bühler: a) may carry out the following operations with and without use of automated means: collect, record, systematize, accumulate, store, alter (up-date, modify), retrieve, use, transfer (provide, grant access to), including cross-border data transfers outside of the Russian Federation to Switzerland to Buhler Holding AG, anonymize, block, delete, destroy personal data; b) shall ensure security and confidentiality of personal data by taking legal, administrative and technical security measures. Such measures will include ensuring safety of media containing personal data and physical security of premises where information systems are located, restriction of access to the personal data being processed on need-to-know basis, use of generally applied and industry standard technical security tools. Bühler may take any other additional measures that it may consider necessary to keep personal data confidential and secure.  
19.	Miscellaneous.
vii.	These DSTC are made in English language. If in the course of performance of the DSTC and/or the Agreement, it will be necessary to translate the DSTC into another language, expenses for such translation shall be incurred by the Party for performance of obligations of which such translation is required. In any case, the version of these DSTC in English shall prevail.

UK
10.	Limitation of Liability
i.	Nothing in this present DSTC limits or excludes any liability which cannot be limited or excluded under applicable law, including liability (a) for death or personal injury caused by negligence; (b) arising from fraud or fraudulent misrepresentation; and (c) breach of the terms im-plied by section 12 of the Sale of Goods Act 1979 (title, quiet possession, no encumbrances).
ii.	Subject to clause 10(i) above, Bühler's liability for damages of any kind (such as, but not limited to, damages to property, damages caused by personal injury (other than caused by negligence), as well as any other direct or indirect or consequential damages) caused to the Customer by Bühler and/or Bühler's directors, officers, employees and other auxiliary persons, sub-contractors shall be excluded to the fullest extent permitted by applicable law. The remedies expressly set out in the present DSTC are the sole remedies of the Customer in case of a breach of the Agreement by Bühler, and any further liability or obligation of Bühler and any further rights or claims of the Cus-tomer, in particular claims not expressly mentioned for damages, reduction of Fee, termination of or withdrawal from the Agreement are expressively excluded.
iii.	The foregoing limitation shall apply regardless of the legal basis of the claim, such as, but not limited to, non-performance, non-proper performance, breach of warranty for defects or in title, default or tort.
iv.	Subject to Clause 10(i) above, Bühler's total liability to the Customer shall be limited for all claims in aggregate to the amount paid by the Customer under this present DSTC in the 12 months preceding the date of any claim.
v.	The Customer shall immediately notify Bühler of any complaint it may have in writing, specifying in detail the reasons for its complaint. Only reproducible failures are considered a default of Bühler.

19. 	Miscellaneous
vii.	The present DSTC is between the Customer and Bühler. No other party has any rights to enforce these terms. 

USA & Canada
3.	Bühler’s Obligation.
i.	Bühler shall provide the Digital Solution and/or Remote Support so as to not intentionally cause any fault or malfunction in the software or any interruption to the business processes of Customer.
ii.	If the Digital Solution and/or Remote Support do not meet the requirements described in this clause 3 i above, at the Customer’s request, Bühler will use its reasonable best efforts to remedy any defect and to ensure that the Digital Solution and/or the Remote Support will sub-stantially be in compliance with such requirements.  
iii.	THE REMEDIES AS DESCRIBED IN CLAUSE 3 II ARE CUSTOMER’S SOLE REMEDIES FOR THE DIGITAL SOLUTION AND/OR THE REMOTE SUPPORT AND ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OR WARRANTIES (WHICH ARE EXPRESSLY DIS-CLAIMED), WHETHER EXPRESS, LEGAL OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES FOR WORKMANSHIP OR PERFORMANCE, MERCHANTABILITY, QUALITY; DURABILITY, TITLE OR FITNESS FOR A PARTIC-ULAR PURPOSE.
iv.	Clause 3 iv deleted.
7.	Changes to the Digital Solution.
i.	Bühler may from time to time develop Updates. Bühler will use commercially reasonable efforts to: (a) rollout and install appropriate Updates that require a temporary expected downtime of the Digital Solution, and (b) provide notice to Customer, when reasonable and possible. If an Update requires more than an expected temporary downtime the parties shall mutually agree on the date and time of such Update. Whereby Bühler shall ensure that any Update shall not have material adverse effect to the Equipment.
ii.	The Customer acknowledges and agrees to timely install any Update if so required in the individual situation. Further the Customer  acknowl-edges and agrees that if it prevents installation of an Update (i) the Customer may be deprived of relevant functionality of the Digital Solu-tion and (ii) Bühler has no obligation and liability whatsoever in respect of the Digital Solution, and (iii) Bühler may give notice of early termi-nation in accordance with clause 18 below.
iii.	At any time Bühler may otherwise reasonably change the Digital Solution, and implement such changes, provided that if Bühler implements changes that materially adversely affect the Digital Solution, Bühler will provide Customer with 30 calendar days prior written notice.  Cus-tomer may terminate the Agreement by giving written notice within 30 calendar days after the date of the material adverse change.