Terms of Service

BETWEEN THE UNDERSIGNED:

 SBA Concept,

headquartered at Rue de Comba Borel 7, 2000 Neuchâtel, Switzerland, registered with the Business Registry under number CHE‑367.644.132,

Hereinafter referred to as “the Provider”,

PARTY OF THE FIRST PART,

AND:

Any natural person or legal entity having accepted these Conditions of Use,

Hereinafter referred to as “the Customer”,

PARTY OF THE SECOND PART,

Individually referred to as a “Party” and together as the “Parties”,

WHEREAS:

The Provider is a supplier of software as a service, i.e., business applications rented online (referred to as a SaaS provider). In this capacity, the Provider is the supplier of the Toolcie SaaS Application Services referred to hereinafter in the contract.

The Customer wishes to use the Application Services of the Provider, functioning with and accessible through internet technology.

The Customer acknowledges that they have received from the Provider all necessary information allowing them to assess the adequacy of the Application Services in relation to their needs, and also allowing them to take all effective precautions for their use.

THEREFORE, THE FOLLOWING HAS BEEN AGREED:

ARTICLE 1. DEFINITIONS

The terms beginning with capital letters in the Contract, whether used in the singular or in the plural, shall have the meaning given below.

Solution refers to the operational functions listed in the appendix to the Contract and made available to the Customer via the Application Services that are the subject of the Contract;
Data refer to the information, publications, and, in general, the data in the Customer database whose usage is the subject of this Contract, which may only be consulted by the Users;
Identifiers refer to both the user-specific login username and the login password provided after registration for the service;
Internet refers to the series of interconnected networks, which are located in all regions of the world;
Intranet refers to the information technology network specific to a company or an organization, using TCP/IP protocols and, more generally, internet technologies and which may be connected to the internet;
Software refers to any software provided by the Provider to the Customer and, in particular, the associated Solutions.
Application Service refers to the service offered in SaaS mode by the Provider, enabling usage of the Solutions by the Customer;
User refers to the person placed under the responsibility of the Customer (agent, employee, representative, etc.) and having access to the Application Services on their computer under the usage license purchased by the Customer;
Administrator refers to a User and representative of the Customer in relations with the Provider;
Device refers to any computer that may access the services of the Provider.

ARTICLE 2. PURPOSE

The purpose of the contract is to establish the terms and conditions applicable to the Toolcie SaaS Application Services used by the Customer.

The Provider offers to the Customer, who accepts:

  • a right to access the servers of the Provider under the conditions established hereinafter;
  • a right to end usage of the Solutions;
  • a series of services described hereinafter, notably for data hosting, Application Services maintenance, and technical assistance.

ARTICLE 3. CONTRACTUAL DOCUMENTS

The contract, as well as the documents labeled “Appendices”, constitute the entirety of the commitments between the Parties, hereinafter referred to collectively as the Contract. It replaces and nullifies any prior oral or written commitment related to the purpose of the Contract.

The Contract is composed of the following contractual documents, presented in a hierarchical order by descending legal value:

  • this document;
  • the appendices to this document.

In the event of a discrepancy between one or more provisions appearing in any of these documents, the higher-ranking document shall prevail.

The appendices to this document, which are an integral part of the Contract, are the following:

  • Appendix 1: Description of the Application Services
  • Appendix 2: Technical and Hardware Requirements
  • Appendix 3: Financial Terms and Conditions
  • Appendix 4: Privacy Declaration

The Parties expressly agree that any tolerance or waiver by one of the Parties in application of all or some of the commitments provided for in the Contract, no matter the frequency or duration, shall not constitute a modification to the Contract, nor shall it create any right whatsoever.

ARTICLE 4. EFFECT, DURATION, AND RENEWAL

In the context of free usage of the Application Services, the Contract shall take effect upon acceptance of the Conditions of Use. Its duration shall last for the entire duration of usage of said Services, until the Customer requests the closure of their account.

The Conditions of Use described in the Contract may change to reflect modifications in the law or to the Application Services. The Customer shall be notified of said changes and shall be noted in the Conditions of Use. The changes shall not apply retroactively and shall take effect at least fourteen (14) days after notification thereof. In the case of non-acceptance of the new Conditions of Use, the Customer shall cease all usage of the Application Services.

In the case of subscription to an offer, the duration of the new Contract is set at one (1) year from the date of subscription. The Provider shall notify the Customer by any written means at least thirty (30) days before the end of the Contract, noting the end date and the modalities for renewal offered to the Customer.

Without a response from the Customer within thirty (30) days from the date of notification, the Contract shall renew with identical conditions, unless the Parties agree to a new functional scope of the Application Services in order to cover the needs of the Customer.

ARTICLE 5. DESCRIPTION OF THE APPLICATION SERVICES

5.1. APPLICATION SOLUTIONS

The Provider makes available to the Customer the Solutions, which can be accessed via the internet.

Under the conditions of the “License” article, the Provider grants to the Customer the non-exclusive right to use the Solutions described in the appendix.

The Provider uses all technological and human resources necessary to ensure, under the best conditions, Data hosting, as well as Solutions maintenance and security.

5.2. NETWORK

The Customer chooses the network access provider and operator. The Provider provides no guarantee. The Customer shall comply with the technical requirements of the Provider.

5.3. ACCESS TO THE SOLUTIONS

The Customer alone shall use this right of access. They may connect at any time, except for during maintenance periods, in other words:

  • 24 hours a day,
  • 7 days a week,
  • including Sundays and holidays.

The Solutions are accessed:

  • via the computers of the Customer or any portable computer of the Customer,
  • via an internet browser in its latest version or via an application provided by the Provider,
  • using the Identifiers provided to the Customer.

When accessing the Application Services, the Customer logs in using:

  • a username chosen by or assigned to the Customer by the Provider,
  • a password chosen by the Customer or sent to the Customer by the Provider.

And/or

  • a license assigned by the Provider to one or more Devices.

The Customer shall use the Identifiers, which will be sent to them, each time they log into the Application Services.

The Identifiers are intended to reserve access to the Solutions that are the subject of this Contract for Users belonging to the Customer, to protect the integrity and availability of the Solutions, as well as the integrity, availability, and confidentiality of the Data of the Customer as provided by the Users.

Confidentiality of the Identifiers:

Identifiers are personal and confidential. They can only be changed by request from the Customer or on the initiative of the Provider, subject to providing prior notice to the Customer. The Customer undertakes to use every measure possible to keep their Identifiers secret and to not disclose them in any form whatsoever.

The Customer is entirely responsible for the usage of the Identifiers and is responsible for keeping the access codes provided to them. The Customer shall ensure that no other person not authorized by the Provider has access to the Application Services and to the Solutions. In general, the Customer assumes responsibility for the security of the individual workstations used to access the Solutions. In the event that the Customer becomes aware that another person has accessed the Solutions, the Customer shall inform the Provider without delay and shall confirm the information via a registered letter.

In the case of loss or theft of one of the Identifiers, the Customer shall use the procedure established by the Provider and described in the User Knowledge Base, allowing them to recover their Identifiers.

ARTICLE 6. QUALITY OF THE APPLICATION SERVICES

The Customer is hereby informed of the technical risks inherent in the internet and of the interruptions to access that may result therefrom. As a result, the Provider shall not be held responsible for any unavailability or slowness of the Application Services. The Provider is not able to guarantee the continuity of the Application Services, which are executed remotely via the internet, and the Customer acknowledges this fact.

Additionally, the Customer is responsible for complying with the indicated volumetric limits and for alerting the Provider in the event that their processing capacity needs increase.

The Provider undertakes to establish effective controls so as to provide reasonable assurance that the Customer may access and use the applications in question during the times set forth herein.

The Application Services may occasionally be suspended due to maintenance operations necessary for the proper functioning of the Application Services of the Provider. In the event of interruption of the Application Services for maintenance, the Provider undertakes to comply with the procedure for operations described hereinafter [Article Maintenance] so that the Customer may be effectively informed of the interruption and that they may take measures sufficiently in advance to avoid any disruption to their activities.

The Provider cannot be held responsible for any impact of this unavailability on the activities of the Customer.

ARTICLE 7. LICENSE

The Provider grants to the Customer a personal, non-exclusive, non-assignable, and non-transferrable right to use the Solutions for the entire duration of the Contract, with said right applying worldwide.

The Customer may only use the Application Services and the Solutions in accordance with their needs and with the related documentation. In particular, the license for the Solutions is solely granted for the purpose of allowing the Customer to use the Services, to the exclusion of all other purposes.

The right to usage includes the right to run and implement the Application Services in accordance with their intended usage, in SaaS mode and via a connection to an electronic communications network. The Customer may not, under any circumstances, make the Solutions available to a third party and shall strictly refrain from any other usage, in particular, including but not limited to, any adaptation, modification, translation, arrangement, distribution or decompilation.

ARTICLE 8. MAINTENANCE

The Provider handles the corrective maintenance of and changes to the Solutions.

The Customer benefits from updates and functional changes to the Application Services. Any modification made to the Application Services is indisputably presumed to be for the improvement of their function and/or to expand their features. The corrections and changes to the Application Services are thus expressly subject to these contractual terms and conditions.

The Provider undertakes to correct, as quickly as possible, any defects, subject to reproducibility. The Customer is responsible for precisely describing the defect encountered. This description shall include, at a minimum: the nature of the defect, the platform of execution (hardware, version of the system, version of the browser or of the application, etc.), and the description of the actions that led to the appearance of the defect.

Reports of anomalies must be confirmed with the Provider without delay, via email or through the support website, a formality that is required before any contact with the technical support service of the Provider. The Provider performs a diagnostic for the defect and then implements a corrective action.

The means of contact available to the Customer are the following:

The Provider is not responsible for maintenance in the following cases:

  • refusal of the Customer to collaborate with the Provider on resolving the defects and, in particular, to respond to questions and requests for information;
  • use of the Application Services in a way that does not comply with their intended usage or with their documentation;
  • unauthorized modification of the Solutions by the Customer or by a third party;
  • failure of the Customer to uphold their obligations under the Contract;
  • installation of any software or operating system not compatible with the Application Services;
  • use of incompatible supplies;
  • failure of electronic communication networks;
  • voluntary act of damage or sabotage, or any other voluntary malicious act;
  • damage caused by a case of force majeure or by improper use of the Application Services.

Nonetheless, if possible, the Provider may take charge of resolving malfunctions caused by the cases listed above, for the fees of the Provider in effect on the date of intervention.

Maintenance operations may make the service temporarily unavailable. They are carried out after a notification period of eight (8) hours, outside of business days and hours, except in cases of force majeure.

ARTICLE 9. DATA PROCESSING

9.1. PERSONAL DATA

If the Data shared for the purposes of using the Application Services include personal data, the Customer guarantees to the Provider that they have upheld all obligations incumbent upon them and that they have informed the natural persons in question of how said personal data is used. In this respect, the Customer warrants the Provider against any legal recourse, complaint, or claim from a natural person whose personal data may be reproduced and hosted via the Application Services.

9.2. USAGE OF DATA

The Customer assumes any editorial responsibility for the usage of the Application Services.

The Customer is solely responsible for the quality, legality, and suitability of the Data and content that they share for the purposes of using the Application Services. Additionally, the Customer warrants that they hold the intellectual property rights enabling them to use the Data and content. As a result, the Provider denies all responsibility for non-compliance of the Data and/or content with laws and regulations, with public order, or with the needs of the Customer.

The Customer warrants the Provider, upon their first request, against any prejudice that may result from a third party invoking the liability of the Provider for a violation of this guarantee.

More generally, the Customer is solely responsible for the content and messages distributed and/or uploaded/downloaded via the Application Services. The Customer remains the sole owner of the Data that makes up the content of the Solutions.

9.3. DATA SECURITY

Each of the Parties undertakes to employ the appropriate technical means to ensure Data security.

Subject to the “Liability” article, the Provider undertakes to preserve the integrity and confidentiality of the Data contained in the Solutions. The Provider shall put in place technical and organizational measures that may prevent any fraudulent access to or usage of the Data and prevent any loss, alteration, or destruction of the Data.

ARTICLE 10. FINANCIAL TERMS AND CONDITIONS

10.1. USAGE FEES

The financial terms and conditions are presented in the appendix.

The usage fees for the Services are indicated in CHF, EUR, USD or GBP according to the billing address of the Customer and are provided with all taxes and fees included.

The billing address is the address of the Customer’s headquarters.

It is expressly agreed that the total of amounts invoiced by the Provider shall be revised each year according to the index of the Hourly Cost of work and of the costs of infrastructure for the Application Services.

The following items are excluded from the usage fee and shall result in separate invoicing:

  • training services,
  • technical support services,
  • and, more generally, any items not included in the SaaS offering.

10.2. PAYMENT MODALITIES

Subscriptions are invoiced monthly or yearly. Invoices must be paid before their due date by payment card.

10.3. SUBSCRIPTION RENEWAL

The subscription is automatically renewed a few hours before the end of the subscription. The Provider is not required to inform the Customer regarding the procedure for automatic renewal. The Customer may, at any time, deactivate the automatic renewal in the application settings.

10.4. PAYMENT DEFAULT

Without preventing the Provider from seeking any damages, should the Customer fail to pay an invoice by its due date, the Provider shall have the right to:

  • suspend access to the Application Services.

10.5. REFUND

The Provider declines to consider a procedure for refunding the subscription at the request of the Customer after they voluntarily purchase a subscription or after a subscription is renewed (whether automatically or not).

ARTICLE 11. OWNERSHIP

The Customer is and remains the owner of all of the Data that they use via the Application Services under the Contract.

The Provider is and remains the holder of the property rights for all elements of the Application Services and of the Solutions made available to the Customer, as well as, more generally, of the information technology infrastructure (software and hardware) used or developed under the Contract.

The Contract does not confer upon the Customer any property right over the Solutions. The Solutions being made temporarily available under the terms and conditions set forth in the Contract shall not be analyzed as the transfer of any intellectual property right to the Customer, as per the Swiss Intellectual Property Code.

The Customer shall refrain from reproducing any element of the Software, or any documentation concerning the Software, by any means whatsoever, in any form whatsoever, and on any medium whatsoever.

The Customer shall not transfer all or part of the rights and obligations resulting from the Contract, whether in the form of a temporary transfer, a sub-license, or any other contract providing for the transfer of said rights and obligations.

ARTICLE 12. DISPOSSESSION GUARANTEE

The Provider hereby declares and warrants:

  • that the Solutions that they have developed are original as per the Swiss Intellectual Property Code,
  • that they are the holder of all intellectual property rights enabling them to enter into the Contract.

The Provider hereby declares and warrants that the Solutions are not liable to infringe on the rights of third parties.

ARTICLE 13. LIABILITY – FORCE MAJEURE

Each of the Parties assumes responsibility for the consequences resulting from their faults, errors or omissions, as well as from the faults, errors or omissions of any subcontractors they may use, when such faults, errors or omissions cause direct harm to the other Party.

Indirect harm:

Additionally, and in the case of fault proven by the Customer, the Provider shall only be responsible for compensating the pecuniary consequences of the direct and foreseeable harm caused by the execution of the Services. Consequently, the Provider shall not, under any circumstances, incur liability for indirect or unforeseeable losses or harm to the Customer or to third parties, which includes, notably, any lost profit, any loss, any inaccuracy or corruption of files or of Data, commercial harm, loss of revenue or of profits, loss of customers, loss of an opportunity, the cost of obtaining a substitute product, service, or technology, in relation to or resulting from the non-execution or faulty execution of the services.

Limit on direct damages:

In all cases, the amount of the liability of the Provider is strictly limited to the reimbursement of the total amounts effectively paid by the Customer on the date that the liability-incurring event occurred, per user workstation, per day of interruption, on the average of usage over the previous three (3) months.

Additionally, the Provider shall not be held liable for the accidental destruction of the Data by the Customer or by a third party having accessed the Application Services using the Identifiers provided to the Customer.

Force majeure:

The Provider shall not, under any circumstances, be held liable for any harm caused by an interruption or by a decrease in service by the telecommunications operator, by the electricity provider, or in a case of force majeure.

Liability:

None of the Parties may be held liable for any failure to uphold their obligations under the Contract if such failure results from a governmental decision, including any withdrawal or suspension of any authorization whatsoever, a total or partial strike, internal or external to the company, a fire, a natural disaster, a state of war, total or partial interruption to or blocking of telecommunications networks or electrical grids, an act of information technology piracy or, more generally, any other event of force majeure presenting the characteristics established by jurisprudence.

The Party experiencing the event shall immediately inform the other Party of their inability to execute the action expected of them. The suspension of the obligations or a delay shall not, under any circumstances, constitute a cause for liability for non-execution of the obligation in question, nor shall it result it the payment of damages or late penalties.

ARTICLE 14. TERMINATION

In the event that one of the Parties fails to uphold their contractual obligations, the Contract may be rightfully terminated by the other Party twenty (20) business days after a letter of formal notice is sent by registered mail with return receipt and remains without response. The formal notice shall indicate the failure(s) observed.

In the event of termination, the Customer shall stop using all access codes for the Solutions and Application Services.

The reversibility procedures shall be implemented in accordance with the “Reversibility” article.

ARTICLE 15. REVERSIBILITY

In the event of termination of the contractual relationship, for any reason whatsoever, the Provider undertakes to return, free of charge, upon the first request sent to the Provider by registered letter with return receipt, within a period of twenty (20) days from the date of receipt of said request, all of the Data belonging to the Customer in a standard format that can be read without difficulty in an equivalent environment.

The Customer shall actively collaborate with the Provider in order to facilitate Data retrieval.

The Provider undertakes to keep the Data of the Customer for sixty (60) days after the termination of the contractual relationship for any reason whatsoever. Beyond that period, in the absence of a formal request from the Customer sent by registered letter with return receipt, the Data of the Customer may be destroyed without prior notice.

Upon request, and subject to additional invoicing, the Provider may provide additional technical support services to the Customer and/or to a third party designated by the Customer for the purposes of reversibility.

Such support services shall be invoiced at the price of the Provider in effect at the time of the notification of reversibility.

ARTICLE 16. CONSUMPTION OF RESOURCES

The Provider reserves the right to contact the Customer in the case of account usage deemed to be excessive. The measurement of usage is based on the resources used by the Customer in terms of server requests (number of calls made to the server daily) or the amount of content created each month (quotes, invoices, contacts, items, etc.). In such a case, a financial arrangement shall be proposed by the Provider to the Customer. In the case of non-acceptance of the arrangement proposed, the Provider shall have the right to close the account, effective immediately.

ARTICLE 17. NON-SOLICITATION OF PERSONNEL

Each of the Parties shall refrain from hiring or engaging for work, directly or via an intermediary, any employee of the other Party, without express prior written consent from that other Party. This commitment is valid for the entire duration of the Contract and for twenty-four (24) months following its termination.

In the event that one of the Parties fails to uphold this obligation, that Party undertakes to compensate the other Party by immediately paying them, upon request, a lump sum equal to six (6) times the gross monthly compensation of the employee at the time of their departure.

ARTICLE 18. CONFIDENTIALITY

This article supplements the “Data processing” article.

Each of the Parties is obligated (i) to keep confidential all information that they receive from the other Party and, notably, (ii) to not disclose the confidential information of the other Party to any third party whatsoever, other than employees or agents with a need to know the information; and (iii) to only use the confidential information of the other Party for the purpose of exercising their rights and of fulfilling their obligations under the Contract.

The previous stipulations notwithstanding, none of the Parties shall have any obligation whatsoever with regard to information that (i) may have entered or may enter the public domain independent of a failure by the Party receiving the information, (ii) may be developed independently by the Party receiving it, (iii) may be known to the Party receiving it prior to the other Party disclosing it to them, (iv) may be legitimately received from a third party not subject to an obligation for confidentiality or (v) must be disclosed under the law or by order from a court of law (in which case, the information must only be disclosed to the extent required and after notification in writing to the Party that provided the information).

The obligations of the Parties with regard to confidential information shall remain in effect for the entire duration of the Contract and, after the Contract ends, for as long as the information in question remains confidential for the Party disclosing it and, under any and all circumstance, for a period of five (5) years after the Contract ends.

Each of the Parties shall return all copies of documents and media containing confidential information of the other Party as soon as the Contract ends, no matter the reason. Furthermore, the Parties undertake to ensure that these provisions are upheld by their personnel and by any intermediary or third party who may intervene in any capacity whatsoever within the scope of the Contract.

ARTICLE 19. MISCELLANEOUS

Severability of the clauses:

Should any of the Contract provisions be found to be null, obsolete, non-binding, or unenforceable, that shall not result in the other provisions being null, obsolete, non-binding, or unenforceable, and the other provisions shall remain in full effect. However, the Parties may mutually agree to replace the invalidated stipulation(s).

The Contract is subject to Swiss law. If the Contract is written in multiple languages or is translated, the French version alone shall be considered the authoritative version.

Selection of domicile:

For the performance hereof, as well as for consequences arising therefrom, the Provider selects as its domicile its headquarters, the address of which is indicated at the top of this Contract.

Disputes – clause assigning jurisdiction:

With a view to jointly coming to a solution for any dispute that may arise in the performance of the Contract, the Parties agree to meet within fifteen (15) days from the receipt of a registered letter with return receipt sent by one of the two Parties.

IF, AT THE END OF ANOTHER PERIOD OF FIFTEEN (15) DAYS, THE PARTIES HAVE NOT REACHED AN AGREEMENT ON A COMPROMISE OR A SOLUTION, THE DISPUTE MAY THEN BE SUBMITTED TO THE APPROPRIATE COURTS WITH JURISDICTION IN THE LOCATION OF THE PROVIDER’S HEADQUARTERS.

 

 

Appendix 1– Description of the Application Services

 

 

Application – app.toolcie.com

Create and manage quotes, invoices, contacts, items, etc.

Public portal – toolcie.com

The portal presents the company’s website. It also lists public presentations and associated profiles.

Appendix 2– Technical and Hardware Requirements

From an internet browser

The Application Services accessed online can function on any computer, no matter the operating system, that has an internet browser that complies with recent internet standards.

The computer must have a high-speed internet connection.

The online editor requires a screen resolution at least 1280 pixels wide. However, a resolution of at least 1920 x 1080 pixels is recommended.

The internet browsers that are explicitly supported, in their most recent version, are:

  • Google Chrome
  • Mozilla Firefox
  • Microsoft Edge
  • Apple Safari

The browser must accept cookies related to the Solutions and must authorize the execution of JavaScript code.

The computer must have a high-speed internet connection.

Minimum hardware configuration:

  • Processor: 3 gigahertz (GHz) or greater
  • RAM: 4 gigabytes (GB) or more

Appendix 3 – Financial Terms and Conditions

Ref. https://toolcie.com/en/pricing

Appendix 4 – Privacy Declaration

Ref. https://toolcie.com/en/privacy-policy

 

 

Publication date of the Conditions of Use: May 6, 2018