Software as a Service Terms & Conditions

These SaaS general terms & conditions (SaaS T&Cs) between

WECHEER SA (CHE-304.343.601), avenue Victor-Ruffy 5, 1012 Lausanne, Switzerland (Provider)

and [USER] as user of the Platform (the Licensee, and together with Provider, the Parties).

 

 

1.       Scope and Acceptance

1.1.   These SaaS T&Cs govern the Licensee’s rights and obligations with respect to the use of the Platform and the content displayed on the Platform (the Content), including such content generated through the Licensee’s use thereof (the Licensed Products).

1.2.   By creating an account for the use of the Platform, the Licensee expressly agrees to be bound by the terms hereof.

1.3.   For the avoidance of doubt, the Licensee being a legal entity, any subscription for the use of the Platform and/or use of the Licensed Products by any of its employees, agents or representatives, on behalf of the Licensee, is deemed as acceptance of the terms of these SaaS T&Cs by the Licensee. If you are subscribing for the use of the Platform or using any Licensed Products on behalf of the Licensee, you represent and warrant that you are duly authorized to do so.

2.       Grant of License

2.1.   Subject to the Licensee’s compliance with all terms and conditions of these SaaS T&Cs, in particular, subject to its payment of the applicable fees in accordance with the Agreement, Provider grants to the Licensee a revocable, non-exclusive and non-transferable license to use the Licensed Products strictly in accordance with the documentation provided by Provider, on its own behalf and for its own benefit (the License).

2.2.   The Licensee shall use the Licensed Products through its employees, agents and/or duly authorized representatives only, and take appropriate measures and precautions to ensure compliance with the SaaS T&Cs by such users.

2.3.   The Licensee is expressly prohibited from using the Licensed Products on behalf or for the benefit of any third-parties, or to sublicense the Licensed Products to any third parties, without Provider’s express prior written consent.

2.4.   The Parties acknowledges that Provider will grant to End Users licenses to use all or part of the Licensed Product, subject to their acceptance of specific terms & conditions. Licensee acknowledges that it does not have the authority to, and covenants that it will not, act as agent for or on behalf of Provider or represent or bind Provider in any manner. In particular, Licensee shall not grant access to the Platform or license any Licensed Product to any End User, without the prior express written consent of Provider.

2.5.   If Provider issues user credentials on a named user basis, such user credentials shall be used exclusively by the individuals for which they have been issued, on behalf and for the benefit of the Licensee. User credentials issued to the Licensee, without specifying the individual users, may be used by any employees, agents and/or duly authorized representatives of the Licensee, strictly on behalf and for the benefit of the Licensee.

2.6.   The Licensee shall be fully responsible for the confidentiality of any user credentials issued by Provider and immediately inform the Provider of any loss or unauthorized disclosure of such user credentials, which shall then be deactivated and replaced by Provider. Provider may charge an appropriate fee for the replacement of any user credentials. The Licensee shall further immediately notify Provider if any named user for whom Provider has issued user credentials quits the Licensee’s organization, if and as applicable.

3.       Availability of the Platform

Provider undertakes to use its best efforts to provide an uninterrupted accessibility of the Platform to Licensee during Working Hours, subject to any necessary maintenance work that Provider may have to carry out.

4.       Support Services

4.1.   Support. During the Term, Provider shall provide Licensee, free of charge, with telephone or electronic support during Normal Working Hours in order to help Licensee locate and correct problems with the Platform.

 

5.       Compliance

5.1.   The Licensee shall at all times comply with the conditions and limitations of any License, as set out in these SaaS T&Cs. The Licensed Products may contain tools allowing Provider to verify the Licensee’s compliance with these SaaS T&Cs and temporarily suspend or permanently deactivate the use of the Platform and/or any user credentials issued for the use of the Licensed Products.

5.2.   The Licensee shall at all times comply with all laws and regulations applicable to its use of the Licensed Products and not abuse the Licensed Products for any illegal purposes.

6.       Third-Party Content

6.1.   The Licensed Products may contain Content and/or software components incorporated into the Licensed Products or provided therewith, developed, distributed and/or licensed by third parties (Third-Party Content). Such Third-Party Content shall be licensed, and the Licensee shall use such Third-Party Content under, and strictly in accordance with, the applicable terms and conditions by the respective third-party. Provider shall use its best efforts to identify any Third-Party Content in the documentation of the Licensed Products.

6.2.   Nothing in these SaaS T&Cs shall restrict, limit or otherwise affect any rights or obligations that the Licensee may have, or conditions to which Licensee may be subject, under any applicable open source licenses to any open source software which may be incorporated in and/or provided together with the Licensed Products.

7.       Intellectual Property

7.1.   As between Provider and the Licensee, Provider shall remain the sole owner of all rights, title and interest, in particular, all intellectual property rights, in and to the Licensed Products, subject to any Third-Party Content. Nothing in these SaaS T&Cs shall operate any assignment or transfer of any intellectual property rights to the Licensee.

7.2.   The Licensee expressly acknowledges that any infringement of Provider’s intellectual property rights will cause irreparable harm to Provider, for which monetary damages alone would be inadequate, and that Provider may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.

7.3.   Should the Licensee become aware of any infringement or imminent risk of any infringement of any intellectual property rights pertaining to the Licensed Products, the Licensee shall immediately inform Provider and provide all useful information on such infringement or risk of infringement. Provider shall have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. Licensee shall, at its own costs, provide Provider with all reasonable assistance required by Provider to protect its intellectual property rights, in accordance with its instructions.

8.       Financial Terms

8.1.   The Licensee shall pay all the fees (Fees) as per the pricing packages 8.3

8.2.   Trial subscriptions: the Licensee  can opt for a free trial, based on the terms specified at the time of registration. If the Licensee choose to continue using the Licensed Products after the trial, the Licensee will be billed when the Licensee select a pricing package, explained in more detail in the section 8.3. If the Licensee choose not to continue using the Licensed Products following a trial, the Licensee may delete the Licensee’s account.

8.3.   Pricing Package: The Licensee’s use of the Licensed Products generally requires the Licensee to pay a monthly subscription fee, the Licensee will be required to select a pricing package upon registration/ creating an account for the use of the Platform, and provide Provider information regarding the Licensee’s credit card or other payment instrument. The Licensee represent and warrant to Provider that such information is true and that the Licensee are authorized to use the payment instrument. The Licensee will promptly update the Licensee’s account information with any changes (for example, a change in the Licensee’s billing address or credit card expiration date) that may occur. The Licensee agrees to pay Provider the amount that is specified in the pricing package in accordance with the terms of such package and these SaaS T&Cs. The Licensee hereby authorize Provider to bill the Licensee’s payment instrument in accordance with the terms of the applicable payment package until the Licensee terminate the Licensee’s account, and the Licensee further agree to pay any charges so incurred. If the Licensee dispute any charges the Licensee must let Provider know within thirty (30) days after the date that Provider charges the Licensee.  Provider reserves the right to change The Provider's prices. The Licensee’s continued use of the Licensed Products after the price change becomes effective constitutes the Licensee’s agreement to pay the changed amount. The Licensee is responsible for paying all other external fees and taxes associated with the Licensee’s use of the Licensed Products wherever levied. The Licensee’s responsibility includes withholding tax if it applies.

8.4.   At any time, and for any reason, Provider may provide a refund, discount, or other consideration to The Licensee ("credits"). The amount and form of such credits, and the decision to provide them, are at Provider ‘s sole and absolute discretion. The provision of credits in one instance does not entitle the Licensee to credits in the future for similar instances, nor does it obligate Provider  to provide credits in the future, under any circumstance.

8.5.   Billing Period: The Licensee’s subscription continues for the period covered by the subscription fee paid or payable. At the end of each billing period, these terms automatically continue for a further period of the same duration as the previous one, the Licensee authorize  Provider to maintain the Licensee’s account information and charge that account automatically upon the subscription fee in accordance with the pricing package with no further action required by the Licensee. In the event that Provider is unable to charge the Licensee’s account as authorized by the Licensee when the Licensee enrolled in a new billing period, Provider, may, in its sole discretion: (i) bill the Licensee for the Licensee’s Service and suspend the Licensee’s access to the Licensed Products until payment is received, and/or (ii) seek to update the Licensee’s account information to continue charging the Licensee’s account as authorized by the Licensee.

8.6.   Changes to the Pricing Package: Provider may change the pricing package from time to time and will communicate any price changes to the Licensee in advance and, if applicable, how to accept those changes. Price changes for Pricing Package will take effect at the start of the next subscription period following the date of the price change. The Licensee accept the new price by continuing to use the Licensed Products after the price change takes effect. If the Licensee do not agree with the price changes, the Licensee have the right to reject the change by cancelling the Pricing Package before the price change goes into effect. Please therefore make sure the Licensee read any such notification of price changes carefully. Payments are non-refundable and there are no refunds or credits for partially used periods.

8.7.   Cancellation: The Licensee may cancel a Pricing Package at any time, but if the Licensee cancel the Licensee’s subscription before the end of the current subscription period, the Provider will not refund any Fees already paid. Following any cancellation, however, the Licensee will continue to have access to the Licensed Products through the end of the Licensee’s current subscription period.

9.       Limited Warranty

9.1.   The Licensed Products are provided AS IS and AS AVAILABLE.

9.2.   To the maximum extent permitted by applicable law, Provider disclaims all warranties with respect to the Licensed Products, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights.

9.3.   In particular, Provider does neither represent nor warrant that the Licensed Products will meet the Licensee’s requirements, that the operation of the Platform will be error-free, that the Content will be error-free, that it will ensure continued compatibility of the Platform with any third-party products, even if they are compatible with such third-party products upon the granting of the License or at any given moment before or thereafter, that the Licensed Products will always be available and remain available unchanged or that certain subscription models for the Licensed Products available at any given moment, will remain available for renewal at the end of the applicable subscription period.

9.4.   The use of the Licensed Products is entirely at the Licensee’s own risk, and Provider expressly disclaims any warranties regarding the Licensee’s use thereof and/or any decisions taken by the Licensee based on the insights gained from its use of the Licensed Products.

10.    Limitation of Liability

10.1. Provider’s liability under these SaaS T&Cs, whether in contract, tort or any other theory of liability, shall be excluded to the maximum extent permitted under applicable law.

10.2. In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, Provider disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether Provider has been advised of the risk thereof or not, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.

10.3. In no event, Provider’s total liability during any period of 12 months shall exceed the amount of the Fees actually paid by the Licensee during the 12 months preceding the events giving rise to the Licensee’s claims.

10.4. The exclusions and limitations under this Section 10 shall extend to Provider’s directors, officers, employees, agents, representatives and auxiliaries.

11.    Indemnification

11.1. The Licensee shall defend, hold harmless from, and indemnify Provider, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney's fees, resulting from the Licensee’s use of the Licensed Products other than as permitted under these SaaS T&Cs and strictly in accordance with any documentation provided for the Licensed Products, including any claims made by any third parties.

11.2. In case of any claims or proceedings made against Provider, its directors, officers, employees or auxiliaries in relation to the Licensee’s use of the Licensed Products, Provider shall (i) inform the Licensee without undue delay; and (ii) allow the Licensee to assist Provider in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.

12.    Data Protection

12.1. Provider and the Licensee shall always comply with their respective obligations under applicable data protection or data privacy laws and regulations in Switzerland.

12.2. By accepting these SaaS T&Cs, the Licensee expressly acknowledges and agrees that the data processed with the Licensed Products may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Licensee’s jurisdiction.

12.3. The Licensee shall ensure, with respect to any personal data processed with or in relation to the Licensed Products, if any, has been collected and is being processed in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, the Licensee shall (i) have obtained the data subjects’ valid consent for the processing of their personal data, (ii) adopted and implemented appropriate technical and organisational measures to protect such personal data and (iii) complied with all registration and/or notification requirements, if and as required under applicable data protection or data privacy laws and regulations, prior to processing any personal data with or in relation to the Licensed Products.

12.4. Provider shall be allowed to forward to the Licensee any requests and/or orders by any third parties, in particular any data subjects, and/or any data protection and privacy authorities, related to the processing of personal data by the Licensee with or in relation to the Licensed Products, subject to any legal prohibition to do so. The Licensee shall fully indemnify Provider for any costs incurred in relation to such requests and/or orders.

13.    Confidentiality

13.1. Each Party undertakes that it shall not at any time during the Term and for a period of two years after its termination, disclose to any person any confidential information concerning the business, intellectual property rights, affairs, customers, clients or suppliers (Confidential Information) of the other Party, except as provided by Section 13.2

13.2. Each Party may disclose the other Party’s Confidential Information:

13.3. a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party’s obligations under these SaaS T&Cs. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this Section 13:

13.4. b) as may be required by law, court order or any governmental or regulatory authority.

14.    Term and Termination

14.1. These SaaS T&Cs shall enter into force upon first use of the Licensed Products. These SaaS T&Cs shall remain in effect as long as Licensed Products are being used.

14.2. In addition to the causes for early termination of the Agreement pursuant to Section 10.3 of the Agreement, Provider may further terminate the Agreement, in case of any infringement of third party rights or risk of infringement of such rights, through the Licensee’s use of the Licensed Products.

14.3. Upon expiry or termination, cancellation of the Licensee‘s account, any Licenses granted hereunder shall become void and the Licensee shall permanently delete any part of the Licensed Products stored or installed on its IT systems, if any, and cease any use thereof