These terms are binding on any use of the Services and apply to the Subscriber from the time Solvaxis provides the Subscriber with access to the Services.
Solvaxis reserves the right to change these terms at any time, effective upon the posting of modified terms on the Website and Solvaxis will make every effort to communicate these changes to the Subscriber via email or notification via the Website.
It is likely the terms of use will change over time. It is the Subscriber obligation to ensure that the most recent terms available on the Website have been read and understood.
By registering to use the Services the Subscriber acknowledges that it has read and understood these terms.
These terms were last updated on July 30th, 2012.
software as a service agreement
(“THE AGREEMENT”)
1. DEFINITIONS
1.1. Agreement means the agreement between the Subscriber and the Provider for the Access and use of the Services via Solvaxis Online Website.
1.2. Access means an event by which the Subscriber logs on to the Software at the Data Center and is granted Access to the Services.
1.3. Access Fee means the monthly fee (excluding any taxes and duties) payable by the Subscriber in accordance with the fee schedule set out on the Website (which the Provider may change from time to time upon prior notice to the Subscriber).
1.4. Authorised User means the person or entity that needs to have Access to the Services in order to provide accounting services to the Subscriber. Such person or entity must be named and registered by the Subscriber before any Access to and use of the Services.
1.5. Confidential Information means any and all information disclosed by either party to the other, including orally conveyed information. Confidential Information of the Provider shall be deemed to include (a) the Software, including all specifications, (b) any documents provided by the Provider related to the Services; (c) the terms and conditions of this Agreement (including the Schedules); and the Confidential Information of the Subscriber shall mean (a) all information concerning the Subscriber’s technical operations including, without limitation, the computer systems, equipment and facilities used by or on behalf of the Subscriber in relation to its business and (b) the Subscriber’s financial, business, commercial information or information regarding the Subscriber’s customers or contacts and (c) the Data. “Confidential Information” does not include any information that the receiving party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
1.6. Data means the Subscriber’s data pertaining to transactions that the Subscriber or the Authorised User have initiated through the Access of the Software at the Data Center through the Website and which is stored at the Data Center.
1.7. Data Center means the place where the Software and other related items are located to enable the Subscriber to remotely initiate any of the operations offered as part of the Services.
1.8. Data Dump means extracting relevant Subscriber’s Data from the Software at the Data Center and providing these back to the Subscriber on suitable storage media such as a CD or DVD.
1.9. Data Loss means deleted or corrupted data caused by Software faults. Data that is deleted or lost by mistake due to the Subscriber’s negligence or faults are not considered as Data Loss under the terms of this Agreement and is not covered by this Agreement.
1.10. Intellectual Property Right means any current or future patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
1.11. Provider means Solvaxis Online SA which is a company incorporated under the laws of Switzlerland.
1.12. Services means the online services made available (as may be changed or updated from time to time by the Provider) via the Software and the Website.
1.13.Software means the online standard computer programs in executable code which Access is supplied by the Provider to the Subscriber at the Data Center.
1.14. Website means the Internet site at the domain www.amandaonline.com or any other site operated by the Provider .
1.15. Subscriber means the person or entity who registers to use the Services.
2. TRIAL period
2.1. In the event where a person or an entity signs up on the Website to Access and use the Services for a trial period of fourteen (14) calendar days, the Services and the Software will be made available to such person or entity on a trial basis, free of charge until the earlier of (1) the end of the trial period or (2) the person or the entity subscribing and registering to Access and use the Services and the Software in accordance with the terms and conditions of this Agreement.
2.2. Data that is inputted into the Software during the trial period will immediately and permanently be erased and lost at the end of the trial period, unless the person or the entity subscribes and registers to Access and use the Software and Services before the end of the trial period under the terms and conditions of this Agreement.
3. ACCESS AND USE OF SOFTWARE
3.1. The Provider grants the Subscriber and its Authorised User the right to Access and use the Services and the Software via the Website. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
3.2. The Subscriber acknowledges and agrees that, subject to the applicable laws:
3.2.1. the Subscriber determines who is an Authorised User and inform the Provider of the same;
3.2.2. the Subscriber is responsible for the Authorised User use of the Services.
4. THE SUBSCRIBER OBLIGATIONS
4.1. The Access Fees
4.1.1. The Subscriber shall pay for the Access to the Services a monthly fee as indicated on the website.
4.2. Payment obligations
4.2.1. The access fee is due starting from the first day of the following month the Subscriber registered to use the Services.
4.2.2. An invoice for the Access Fee will be issued for a 3 month period in advance.
4.2.3. The Provider will continue to invoice the Subscriber for 3 month periods until this Agreement is terminated in accordance with clause 9.
4.2.4. All Provider’s invoices will be sent to the Subscriber, at the billing address as provided by the Subscriber, by email.
4.2.5. The Subscriber commits to pay or arrange payment of all amounts specified in any invoice within 10 days of the invoice date. The Subscriber is responsible for payment of all taxes and duties in addition to the Access Fee.
4.3. General obligations
4.3.1. The Subscriber must only use the Services and Website for the Subscriber own lawful internal business purposes, in accordance with this Agreement.
4.3.2. The Subscriber must ensure that all usernames and passwords required to Access the Services are kept secure and confidential.
4.3.3. The Subscriber must immediately notify the Provider of any unauthorised use of the Subscriber usernames and passwords or any other breach of security and the Provider will reset the Subscriber usernames and passwords.
4.3.4. The Subscriber must take all actions that the Provider reasonably deems necessary to maintain or enhance the security of the Data and of the Software and networks, e.g. the Subscriber must change usernames and passwords regularly but at least every sixty (60) days.
4.3.5. When accessing and using the Services, the Subscriber must:
4.3.5.1. not attempt to undermine the security or integrity of the Software, the Website and the Data Center, including computing systems and networks.;
4.3.5.2. not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
4.3.5.3. not attempt to gain unauthorised Access to any materials other than those to which the Subscriber has been given express permission to Access or to the Software on which the Services are hosted;
4.3.5.4. not transmit, or input into the Website, any files that may damage any other person’s software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which the Subscriber do not have the right to use); and
4.3.5.5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs (including the Software) used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
4.4. Communication Conditions:
4.4.1. If the Subscriber uses any communication tools available through the Website (such as any forum, chat room or message centre), the Subscriber agrees only to use such communication tools for lawful and legitimate purposes.
4.4.2. The Subscriber must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which the Subscriber does not have the right to use).
4.4.3. When the Subscriber makes any communication on the Website, the Subscriber acknowledges and represents that it is permitted to make such communication. The Provider is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. As with any other web-based forum, the Subscriber must exercise caution when using the communication tools available on the Website. However, the Provider does reserve the right to remove any communication at any time in its sole discretion.
4.5. Indemnity
4.5.1. Subject to the applicable law, the Subscriber shall indemnify the Provider against any claims, costs, damage and loss arising from the Subscriber breach of any of these terms or any obligation the Subscriber may have to the Provider, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by the Subscriber.
5. CONFIDENTIALITY AND PRIVACY
5.1. Confidentiality
5.1.1. Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
5.1.2. Each party’s obligations under this clause will survive termination of these Terms.
5.1.3. The provisions of clauses 5.1.1 and 5.1.2 shall not apply to any information which:
5.1.3.1. is or becomes public knowledge other than by a breach of this clause;
5.1.3.2. is received from a third party who lawfully acquired it and who is under no obligation to restrict its disclosure;
5.1.3.3. is in the possession of the receiving party without restriction in relation to disclosure; or
5.1.3.4. is independently developed without access to the Confidential Information.
6. INTELLECTUAL PROPERTY
6.1. General:
Title to, and all Intellectual Property Rights in the Services, the Software, the Website and any documentation relating to the Services remain the property of the Provider or its lawful licensors, if any.
6.2. Ownership of Data:
Title to, and all Intellectual Property Rights in, the Data remain the Subscriber exclusive property. However, the Subscriber grants the Provider, for the duration of this Agreement, a license to use, copy, transmit, store, and back-up the Subscriber information and Data for the purposes of enabling the Subscriber to Access and use the Services and for any other purpose related to the provision of Services to the Subscriber.
6.3. Backup of Data:
6.3.1. The Subscriber must maintain copies of all Data inputted into the Services.
6.3.2. The Provider shall take all reasonable measures to preserve the integrity and prevent Data Loss.
6.3.3. The Provider shall ensure that Data is regularly backed up and shall make periodically available to the Subscriber Data Dump against an additional fee. However the Provider does not make any guarantees that there will be no Data Loss. The Provider expressly excludes any liability for Data Loss no matter how caused.
6.4. Third-party applications and Data.
If the Subscriber enables third-party applications for use in conjunction with the Services, the Subscriber acknowledges that the Provider may allow the providers of those third-party applications to access the Data as required for the interoperation of such third-party applications with the Services. The Provider shall not be responsible for any disclosure, modification or deletion of the Subscriber Data resulting from any such access by third-party application providers.
7. WARRANTIES
7.1. The Subscriber acknowledges that:
7.1.1. Only the Subscriber is authorised to use the Services and the Website and to Access the information and Data inputted into the Website, including any information or Data inputted into the Website by the Authorised User.
The Provider has no responsibility to any person other than the Subscriber and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Subscriber.
7.1.2. The provision of, Access to, and use of, the Services is on an “as is ” basis and at the Subscriber own risk.
7.1.3. The Provider does not warrant that the use of the Services will be uninterrupted or error free. Among other things, the operation and availability of the systems used for Accessing the Services, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent Access to the Services. The Provider is not in any way responsible for any such interference or prevention of the Subscriber Access or use of the Services.
7.1.4. It is the Subscriber sole responsibility to determine that the Services offered by the Provider meet the needs of the Subscriber business and are suitable for the purposes for which they are used.
7.1.5. The Subscriber remains solely responsible for complying with all applicable accounting, tax and other laws. It is the Subscriber responsibility to check that storage of and Access to Data via the Software and the Website will comply with laws applicable to the Subscriber (including any laws requiring the Subscriber to retain records).
7.2. No warranties:
The Provider gives no warranty about the Services. Without limiting the foregoing, the Provider does not warrant that the Services will meet the Subscriber requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
8. LIMITATION OF LIABILITY
8.1. To the maximum extent permitted by law, the Provider excludes all liability and responsibility to the Subscriber (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data Loss, profits and savings) or damage resulting, directly or indirectly, from any Access, use of, or reliance on, the Services or Website.
8.2. In any event, the liability for damages of each party to the other for any reason and upon any cause of action whatsoever shall be limited to the Access Fees paid by the Subscriber in the 12 months preceding the date on which such cause of action accrues.
9. TERM AND TERMINATION
9.1. Term
This Agreement shall commence on the date the Subscriber has accepted the terms of this Agreement and shall continue until its termination or expiration.
9.2. Termination for convenience
Either party shall have the right to terminate this Agreement without cause by giving notice to the other party at least sixty (60) calendar days before the end of the three (3) month period indicated under clause 4.2 above.
The Subscriber shall be liable to pay all relevant Access Fees for the period up to and including the day of termination of this Agreement.
9.3. Termination for Breach
9.3.1. Either party shall have the right to immediately terminate this Agreement for the following reasons:
9.3.1.1. breach by the other party of any of these terms (including, without limitation, non-payment of any Access Fees), which is not cured within 14 days after receiving notice of the breach;
9.3.1.2. either party becomes insolvent or goes into liquidation.
9.3.2. In the event of a Subscriber’s breach, the Provider may suspend for any definite or indefinite period of time the Subscriber Access and use of the Services and the Website.
9.4. Effect of the termination
9.4.1. Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the effective date of termination.
9.4.2. The Subscriber will remain liable for any accrued charges and amounts which become due for payment before and until the effective date of termination.
9.4.3. The Subscriber will cease to Access and use the Services and the Website at the effective date of termination.
9.4.4. Thirty (30) days after the effective date of termination of this Agreement, the Provider will erase all information and Data, unless requested by the Subscriber to make all information and Data available to the Subscriber for download.
10. HELP DESK
10.1.1. Extensive documentation is provided within Amanda (such as FAQ, Dixit, Getting started)
10.1.2. Should the Subscriber need further assistance, the help desk is available during regular working days and office hours by email (free of charge) or via pay-phone.
11. Purchase via the Appdirect or Swisscom business application marketplaces.
Following terms apply if the Subscriber purchases the application via the AppDirect or Swisscom business application marketplaces:
(a) All Solvaxis Terms license agreements are between the Subscriber and Solvaxis, and not between the Subscriber and Swisscom or any of its partners.
(b) SolvAxis, and not Swisscom or any of its partners is solely responsible for the applicable Application,
(d) SolvAxis, and not Swisscom or any of tis partners, is solely responsible for any applicable warranty, support, product liability, intellectual property infringement, and similar obligations and liabilities with respect to the Application,
(e) The Subscriber is of majority age and capable of entering a binding contract
(f) The Subscriber may contact SolvAxis directly at listed, valid contact information.
(g) All billing and payment provisions are dictated by the terms of the contract between Swisscom and the Subscriber.
(h) Subscribers licenses or rights of usage are in no case granted for more than one year after the last subscription.
12. GENERAL
12.1. Entire agreement
The terms of this Agreement, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire Agreement between the Subscriber and the Provider relating to the Services.
12.2. Waiver
If either party waives any breach of these terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
12.3. Force Majeure
Neither party will be liable for any delay or failure in performance of its obligations under these terms if the delay or failure is due to any cause outside its reasonable control.
12.4. No Assignment
The Subscriber may not assign or transfer any rights to any other person without the Provider’s prior written consent.
12.5. Severability
12.5.1. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable, the remainder of the Agreement, as applicable, will not be impaired or affected thereby, and each term, provision and part will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by law.
12.6. Notices
12.6.1. Any notice given under these terms by either party to the other must be in writing by email and will be deemed to have been given on transmission.
12.6.2. Notices to the Provider must be sent to support@amandaonline.com or to any other email address notified by email to the Subscriber by the Provider
12.6.3. Notices to the Subscriber will be sent to the email address which the Subscriber provided when setting up the Subscriber Access to the Services.
12.7. Rights of Third Parties
12.7.1. The terms of this Agreement are for the sole benefit of the parties hereto. This Agreement confers no rights, benefits, or claims upon any person or entity not a party hereto.
12.8. Governing law and jurisdiction
12.8.1. This Agreement shall be governed by Swiss Law.
12.8.2. Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be Geneva and the language to be used in the mediation shall be English.
12.8.3. If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within 90 days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. Alternatively, if, before the expiration of the said period of 90 days, either party fails to participate or to continue to participate in the mediation, the dispute, controversy or claim shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration shall be Geneva. The language to be used in the arbitral proceedings shall be English. The dispute, controversy or claim referred to arbitration shall be decided in accordance with Swiss law.
