TERMS AND CONDITIONS
1 These Terms and Conditions (hereafter referred to as "Terms") govern the relationships between the customer and yawave AG (hereinafter referred to as "yawave") for all of yawave offers and services.
2 Written or electronically accepting additional agreements (license agreements, project contracts, service level agreements, etc.) apply in addition and shall take precedence in case of any discrepancies. Relevant is - subject to Section 71th following - the current and published on www.yawave.com version of the Terms at the time the contract is concluded resp. the contract extension.
3 With the conclusion of the contract, but at the latest with the first use of yawave services, the current Terms as well as the under 2nd above-mentioned agreements are considered as accepted. These Terms shall also apply to all future services provided by yawave to the customer, even if these should not be explicitly agreed again.
4 General terms and conditions of the customer or other conditions deviating from these Terms shall be deemed to be excluded, unless their applicability has been confirmed in writing by yawave.
5 For products and services of third parties, which yawave sells to the customer, additional conditions of the respective suppliers / manufacturers may apply.
II. Subject matter and conclusion of contract
6 The subject of the contract is the offering of the yawave Software Suite as SaaS or cloud solution. The customer uses the yawave Software Suite according to the contractual agreements for data processing and storage via the Internet on the server infrastructure of yawave or the server infrastructure operated on behalf of yawave by a third party (hereinafter referred to as "yawave server infrastructure").
7 Other services provided by yawave may include software development and licensing, project management and consulting services.
8 The contract is concluded with the acceptance (letter or e-mail) of the offer of yawave by the customer. In the case of electronic ordering of a service by the customer via the Internet (e.g. via customer account) the contract is being considered as concluded with the confirmation (letter or email) of yawave resp. the commencement of service provision by yawave or the transfer of access data. In any case, the contractual relationship begins at the latest at the time when the services are used by the customer, irrespective of the above.
9 The use of the yawave Software Suite may require registration of the customer with yawave and the presence of a customer account.
10 The customer is obliged to provide truthful information as well as to keep the access data confidential and not to make it accessible to unauthorized third parties. The customer also confirms that all persons who make statements for the customer via the customer account are actually entitled to legally bind the customer.
11 Yawave reserves the right to terminate the customer account at any time and without giving any reason if the customer has obtained access to the yawave Software Suite under false data, the customer violates the contractual conditions, or the blocking is necessary to maintain security and integrity of yawave's IT infrastructure.
12 The customer is obliged to contact and inform yawave immediately if he has reason to believe that his customer account is or will be misused by unauthorized third parties. In principle, the customer is responsible to yawave for all actions that are carried out using the customer account. A responsibility is not applicable only if the customer can prove that he informed yawave immediately and did not breach his duty of care related to the customer account.
IV. Services of yawave
13 Yawave provides its services professionally and with the help of suitable personnel. Yawave may engage third parties to provide services and is solely responsible for the proper selection and instruction of third parties.
14 Yawave cannot guarantee the trouble-free or uninterrupted use of the yawave Software Suite. Nor can yawave guarantee absolute security, in spite of all the state-of-the-art safety precautions and modern standards and open technologies software applications.
15 Yawave is not responsible for the customer's communications infrastructure. In general, yawave cannot assume any responsibility for the availability and performance of data transmission networks or responsibility for the error-free, uninterrupted and timely transmission of data.
16 The responsibility for the backup and recovery of the customer's data, which he processes using the yawave Software Suite on the yawave server infrastructure, rests exclusively with the customer.
B. Yawave Software Suite
17 Yawave provides the customer with the yawave Software Suite according to the selected subscription or according to individual contract agreements with the customer, with the scope of functionality and performance published on www.yawave.com via the internet.
18 The customer has the right to use the functionalities of the Software Suite yawave according to the aforementioned contractual basis over the Internet. The customer receives a non-exclusive, for the duration of the contractual relationship between yawave and the customer limited and non-transferable right to use the yawave Software Suite for their own use. The aforementioned use is exclusively limited to the operation of the yawave Software Suite on the server infrastructure of yawave or the server infrastructure operated on behalf of yawave by a third party. In addition, the customer is not granted any further rights to the yawave Software Suite. All rights, especially the copyrights to the software provided by yawave belong exclusively to yawave or possibly to its suppliers and manufacturers. Use by third parties, in the sense of a free or paid provision by the customer, is not permitted. In particular, the customer is not entitled to further sub-license the software. Except as provided in the contract, the scope of functionality and the documentation, the customer is not allowed to edit, change or independently and without the consent of yawave, copy, further develop, sell, redistribute or otherwise exploit the software. The customer also has no claims for the publication or provision of source code. Supplementary regulations on the conditions of use of services of third parties (such as license conditions of third-party software) are also expressly agreed.
19 Yawave takes care about the general maintenance in the sense of a constant actualization and ability of the systems used by yawave (hardware and software components ) according to the current state of the art. Yawave exclusively defines the timing for updates.
C. Additional Services
20 If yawave also provides consulting services in the context of providing the yawave Software Suite, it is according to instruction by the customer and under the direction of the customer. Yawave guarantees in this regard to provide such service with active care and use of competent and instructed personnel. The consulting services are considered as delivered as soon as yawave has handed over or transmitted the results of the consulting services to the customer.
21 If yawave provides individual software development services to the customer, this is done on the basis of agile software development methods and the associated cyclical working method in continuous coordination with the customer. The requirements defined jointly for the implementation are specified for each development cycle in the project log ("backlogare") and the respective effort for the implementation of the requirements is estimated or defined. In this context, the customer must also - based on concrete application scenarios and the specific application environment - record the intended behavior as well as the intended events or desired results, on the basis of which the conformity of the work results of yawave with the requirements of the customer for each development cycle can be tested. It is in line with the common understanding of the parties that the respective development cycles in the specific application are to be examined as comprehensively as possible for their conformity with the aforementioned requirements. If the project protocol determines conformity based on the status of the project log and the associated development cycle, the services on this basis are deemed to have been accepted in accordance with the contract.
22 Depending on the chosen subscription or the individual contractual agreement with the customer, the latter is entitled to use the yawave Software Suite in his customized layout and design (white labeling). Yawave provides the customer with functionality, which allows the customer to use the Software Suite under its own name and in his own layout and design. The design as well as the layout have to be sufficiently different from the standard layout and design of yawave. In this context, the customer confirms in particular that he is entitled to use the designations (in particular trademarks) and designs used by him and that the use does not violate the rights of third parties. Yawave reserves the right make white labeling subject to a prior consent.
23 Depending on the subscription chosen or the individual contractual agreement with the customer, the latter is entitled to use the yawave Software Suite via the application programming interface ("Application Programming Interface", hereinafter "API”) or customer-specific integration. If the customer abuses or sends disproportionately frequent requests via the API, yawave reserves the right to temporarily or permanently block the access via the API. Yawave also reserves in particular the right to limit the number of requests via the API to a certain maximum number per time interval.
24 If yawave provides project management services for the customer, this is done on behalf of the customer in the sense of an "external project management". The project management is documenting any decisions or suggestions done on behalf of clients in the function of the external project management. The Customer releases yawave from any responsibility related to project decisions or suggestions on behalf of the client.
25 The customer is aware and agrees that the process model yawave applies to provide its services, particularly in the area of development, is based on agile methods. The provision of services based on agile methods requires to a considerable extent a responsible and trusting cooperation between the parties. With this agile approach it is also a fact that no concrete work result can be promised. In particular, the customer is aware that due to the cyclical working method associated with agile methods, continuous and permanent communication between the parties is absolutely relevant to success.
D. Availability and Support
26 The availability of the yawave Software Suite as well as the customer's access to yawave support depends on the chosen subscription or the individual contractual agreement with the customer.
27 In case a minimum availability of yawave Software Suite is assured, the following situations are excluded from the assessment of the minimum availability: regular and preannounced maintenance, interruptions caused by third parties as well as by customers (in particular because of service interruptions), and interruptions caused by circumstances outside of yawave’s influence, including interruptions and interference with data transmission networks, interruptions and malfunctions due to malicious programs or force majeure.
28 Yawave provides email support to assist its customers with technical issues regarding the handling and installation of the yawave Software Suite and the reporting of malfunctions or misconduct, as well as a free or paid hotline, depending on the subscription chosen .
29 All support services are exclusively "best effort", i.e. in the context of existing operational and human resources of yawave. There is no guarantee to remedy any faults within a given period. Other support conditions are subject to individual contractual arrangements with the customer.
30 If a customer requires the elimination of malfunctions, he shall bear the costs incurred by yawave in this regard , unless yawave, in accordance with the provisions of these Terms, is responsible for correcting the malfunction and the customer does not provide proof that the malfunction is due to the fault Infrastructure or the services of yawave.
31 In addition, Yawave may temporarily suspend or discontinue the availability of the yawave Software Suite or any part of it for any material reason, such as:
- Maintaining public safety
- Security and maintenance of yawave communications networks
- Data protection
- Restrict the proliferation of malware
- Restrict attacks on yawave's infrastructure (such as hacker attacks or DDoS attacks)
Yawave will inform the customer as soon as possible about the duration and extent of the restriction. A temporary restriction does not release the customer from the payment of the contractually agreed fees until the next possible termination date of the contract.
32 Dates are only binding if expressly agreed with the customer. Yawave has the right to request the appropriate adjustment of deadlines and schedules, if these are not supplied on time by their own suppliers and subcontractors, the customer does not fulfill his contractual obligation to cooperate or does so insufficiently, or if extraordinary events occur which are not influenced by yawave can (such as strike, natural disasters, etc.). Appointments and schedules according to scheduling are also considered deferred or suspended as long as the customer is in default with his contractual payment obligations.
33 If yawave does not comply with the agreed deadlines, the customer can set an appropriate grace period. If this grace period also expires unused, the customer is entitled to withdraw from the contract and to claim compensation for delayed performance, provided that the damage was caused intentionally or through gross negligence. The customer cannot assert further claims due to a missed deadline. A refund of payments already paid by the customer is excluded in the event of withdrawal.
VI. Terms of payment and conditions
34 Invoicing is based on the agreed prices as per the contract or on the basis of the chosen subscription according to the conditions published on www.yawave.com. In the event of compensation based on the effective use of services provided by yawave, performance billing and compensation based on yawave's log records will be used. Other services, such as consulting services, and related expenses and additional expenses (such as travel time) will also be invoiced in accordance with the fee rates and conditions published on www.yawave.com. Unless otherwise agreed, all fees are due in advance.
35 Yawave accepts as the means of payment the most commonly used credit cards. By providing the means of payment, the customer authorizes yawave to charge the corresponding payment. Subscription will be paid monthly, quarterly, semi-annually, or annually, depending on the payment method chosen by the customer in advance by the customer's chosen means of payment, usage-based remuneration in each case with retroactive effect at the end of the calendar month.
36 If a payment cannot be successfully completed because the specified means of payment has expired, insufficient funds or payment fails for any other reason, the customer must immediately specify an alternative means of payment and make the corresponding update in the customer account. Payment by invoice is possible in certain cases but requires an individual agreement between yawave and the customer and is only available on selected subscription types.
37 Invoices are payable within 10 days of the invoice date. After expiry of the term of payment, the customer is also in default without reminder. If the payment period is not adhered to, the customer undertakes to pay dunning fees of CHF 20.00 for each reminder.
38 For unanswered expiration of payment deadline or if a payment specified by the customer payment cannot be successfully completed, yawave is entitled to suspend all services until full payment of the due remuneration. Any deadlines to be met by yawave and contractually agreed will also be suspended for the duration of the delay in payment.
VII. General obligations to cooperate and other obligations of the customer
39 The customer has to provide all necessary conditions for the yawave service provision, such as technical, operational conditions and personnel as well as the necessary information and decisions in accurate and timely manner.
40 The customer shall ensure that yawave receives the access and authorizations necessary for the provision of its services for the premises, the further facilities and the IT systems of the customer. In case yawave has to provide services via remote access to the system of the customer, the customer provides yawave with a secure online access to the systems. If yawave cannot provide its services via remote access due to negligence or delays on customer side, it is entitled for a potential intervention on premise and bill the cost according to the conditions published on www.yawave.com.
41 The customer is obliged, with respect to the use of yawave Software Suite, to maintain and leave all proprietary notices and references in accordance with yawave unchanged.
42 The customer shall inform yawave in writing about any service disruptions or deficiencies in the provision of the service, stating the information required for the proper inspection, either in writing by post, fax or e-mail or in the form specified in the contract. The customer shall support yawave to the extent reasonable in the setting up and analysis of performance disruptions.
43 The use of yawave Software Suite may only be as intended and only within the scope of applicable law and any additional agreements between the parties. Customer warrants not to infringe any rights by using the yawave Software Suite. The customer warrants not to exploit the rights of use granted by yawave inappropriately, in breach of contract or law. The customer is solely responsible and fully indemnifies yawave for any infringements committed by him or his users.
44 The customer is solely responsible for the content, quality and veracity of the content processed and distributed by him through the yawave Software Suite. The customer assures that the contents and information neither directly nor indirectly (i.e. in particular via a link to other contents and platforms of third parties) violate the rights of third parties, in particular copyright, name, personality, data protection or trademark rights, nor is against other industrial property rights or against competition law (unfair competition), press law, and other provisions (such as lottery, casino, criminal, medical, alcohol, food legislation, etc.) and principles (such as the principles of the integrity committee) of Switzerland and all countries of destination of this content and information.
45 If the customer uses the yawave Software Suite to send or distribute electronic messages (e-mail, instant messaging, SMS, etc.), he refrains from using e-mail addresses, telephone numbers, etc., for which the expressed consent of the recipient to receive such messages to his address cannot be proved beyond reasonable doubt. The customer is also obliged to declare himself as sender in every message and - subject to further legal provisions - to attach an imprint with at least the address and a telephone contact option. Finally, in every message sent, the customer must indicate the possibility of revoking the permission to send messages.
46 If the customer uses amplification functionalities of yawave (gamification), the incentive scheme must comply with local law. Rewards can be offered for successful referrals (conversions such as purchase, subscription, visits, etc.). It is not allowed to reward sharing activities alone.
47 If the customer violates the above obligations or additional obligations laid down in the contract, he shall compensate yawave for the resulting additional expenses and all damages in full.
48 Yawave is also entitled to permanently restrict the use of the yawave Software Suite or adjust / limit it if the customer violates these obligations (VII), in particular with regard to data protection, copyrights, trade secrets, rights to trademarks, fair competition and related areas, or if the customer uses the yawave Software Suite to distribute offers or information that violate the relevant legislation (e.g. illegal gambling, pyramid schemes, etc.).
VIII. Rights to software and services, legal warranty
49 The property, the intellectual property rights, in particular the copyrights relating to yawave Software Suite as well as trademarks and all other rights to the yawave Software Suite, in particular concepts, documentation and all other rights not expressly granted, remain with yawave. The customer is only entitled to the use of the yawave Software Suite under the terms of this contract.
50 Yawave is entitled too to all work results, such as concepts, designs, sketches, specifications, ideas, schematics, software codes, templates, content, etc., which have been developed for the customer in the context of the contractual relationship - regardless of whether they are protected by law or not. Yawave grants the customer the right to use these work results for the duration and scope of the contract.
51 A transfer of rights to work results to the customer beyond the granting of usage rights must be agreed separately and shall only be deemed to be completed if the customer has fully fulfilled his payment obligations under the contract. Regardless of the above transfer of rights, yawave is allowed to use generic know-how, that has been generated in the customer project, in the provision of services for similar or same kind customers. Yawave is further allowed to develop work results which are comparable in design and functionality, provided this is done only and exclusively in a form that third parties cannot make any conclusions about the customer.
52 Yawave guarantees that the proper use of yawave Software Suite does not infringe any copyrights or other rights of third-party software providers. In case of any possible third-party claims related to infringement of rights through yawave Software Suite, the customer has to inform yawave immediately in writing so that yawave can assist the customer in defending the claims if the customer is requesting it. In case third-party property rights are being infringed through the use of yawave software and the customer is legally prohibited to use all or part of the software, the customer can ask yawave to provide the customer with the disputed right at its own expense or that yawave will modify the software at its own expense to correct the infringement. Any further claims of the customer are expressly excluded. If, for the provision of services, the customer grants yawave access to own work results or work results of third parties, the customer assures yawave to have all necessary rights to use this information.
53 In any case, the rights to be taken into account in connection with third party software or third party components (hereinafter referred to as "Third Party Software") remain reserved. These arise from the respective additional agreements (license agreements, etc.), which constitute an integral part of the contract. The use of this third-party software by the customer and the related support are subject exclusively to the respective conditions of use or support of the manufacturer / licensor of the third-party software.
54 Yawave assumes no liability or legal resp. other warranty for Third Party Software or third-party components (hereinafter referred to as "Third Party Software"). Yawave is solely responsible for the use of this third-party software provided that the interoperability or functional capability of the interface between the individual customer work results and the third-party software has been assured by yawave and that the failure is due to errors in the work results of yawave.
55 Notwithstanding the foregoing yawave assumes no warranties in connection with the use of so-called "free software" or "open source software" for the customer. In particular, Yawave cannot guarantee that the use of Free Software or Open Source Software as well as their maintenance and support is guaranteed at all. The customer also acknowledges that the use of free software or open source software for the customer, depending on the applicable open source license, may require licensing requirements for the publication or public provision of source code.
IX. Confidentiality and privacy
56 The parties are obligated to treat as confidential business and trade secrets as well as other confidential and sensitive information that is exchanged from or in connection with the contract between the parties and not for the purposes of third parties or for their own, not these GTC and the contract to use covered purposes. The obligation of confidentiality also applies after termination of the respective contract. After termination of the contract or early termination, the aforementioned confidential information n on documents or data carriers are unsolicited to the other party returned and - if on the own systems of the respective party saved - deleted or destroyed.
57 Yawave will process customer data as part of the provision and billing of services related to the yawave Software Suite and other yawave services . In general, the customer can revoke the consent to certain data processing for the future at any time, but acknowledges that in this case, yawave may no longer be able to provide its services to the original extent . The customer agrees that anonymous N Utzer data (including tracking) that affect the usage of the N Utzer the customer, are stored by yawave, as far as the fulfillment of the contract purpose, advising the customers and improving the performance and ease of use yawave Software Suite and other yawave services . The data collected can be used by yawave to advise its entire client and prospect portfolio, to promote itself and to make market research for its own purposes.
58 Ata unless yawave third party with the processing of D commission (such as in data center services or payment processing), they may use the personal data only in the context of the contract awarded by yawave and not for their own purposes. Apart from that , personal data will only be disclosed to third parties if the user has expressly consented or if there is a legal or official obligation in this respect .
59 The customer agrees to the processing of personal data, the Swiss Data Protection Act as well as all of the while using the yawave Software Suite and other benefits of yawave applicable domestic and foreign data protection regulations - - especially the DSGVO be observed . The customer provides yawave this respect fully against the N utzern of customers and other third parties free. The customer undertakes to inform his users in an appropriate form about the data processing and to inform that the responsibility for the data processing lies exclusively with the customer.
60 The customer acknowledges that yawave may at most be obliged to provide information pursuant to Art. 8 and Art. 9 DSG or in accordance with foreign data protection legislation - namely DSGVO . Unless yawave such information has to give , can be billed to the customer with the relevant services at cost.
61 Yawave is entitled to report on customer projects as part of her marketing communications, eg on her reference lists , on www. yawave .com and their own social media presences, on the occasion of presentations and press releases . It is also yawave entitled completed customer projects in industry competitions (Awards) einzu rich.
62 Yawave excludes all liability for damages of any kind resulting from the use of the yawave Software Suite (or the inability to use it) as well as the provision of services and other services by yawave. In particular, yawave shall not be liable for any damages caused by faults or disturbances of telecommunications equipment and networks, transmission errors, technical defects, interruptions, illegal interference by third parties or capacity bottlenecks and other inadequacies on the part of providers of telecommunications services or networks. In addition, liability for disabling the yawave Software Suite is excluded in cases where yawave detects or assumes an attack on their systems that endangers the integrity of the systems and the security of the yawave Software Suite as well as the IT infrastructure.
63 Reserved is only the liability of yawave for damages, which it caused itself deliberately or with gross negligence (excluding the liability for auxiliary persons). To the extent permitted by law, the above liability is limited to an amount equal to the total amount of compensation that the customer is required to pay under the agreement or until the expiration of a fixed term or until the first possible termination of the agreement.
64 Yawave assures the customer that the services are provided with professional care and state-of-the-art technology. Yawave warrants that it will carefully select, instruct and monitor the employees or assistants or subcontractors employed or brought in to provide the Services.
65 In the context of granting rights to use of software, yawave neither guarantees the usability of the software for a specific purpose nor the success of the use, but only the available range of functions within the information available on www.yawave.com. The customer also acknowledges that yawave is unable to completely exclude software errors under any application or operating conditions.
66 Errors or defects in the performance of yawave are exclusively being resolved as part of the support services depending on the selected subscription or individual contractual agreement with the customer (according to the Section IV./D.).
XII. Contract duration and termination
67 The contract with the customer is extended automatically upon expiration of the initial agreed period for the same term, unless this contract is being terminated by one of the parties before automatic extension. The termination can be done directly in the account before the renewal as well as in writing (email, letter) 14 days before the renewal.
68 In the presence of important reasons, which make the continuation of the contract unreasonable for objective reasons, the parties can terminate the contract without notice with immediate effect. If the contractual relationship is terminated in accordance with this provision, the customer must fully indemnify yawave for the service already delivered up to the date of termination of the contract. A claim of the customer for reimbursement of already paid remuneration also does not apply in the case of termination for good cause.
69 An important reason is given, in particular, if a bankruptcy or debt restructuring procedure is opened against the customer or the insolvency of the customer is otherwise created as well as in the cases specified in Section VII.
70 The cancellation must be made in writing by letter or e-mail and is only valid if it has been received by the other party. For contracts for services of yawave which the customer closes via customer account, the termination may alternatively be done via customer account.
71 After termination of the agreement, yawave will retain the data processed by the customer through the yawave Software Suite for 30 days on the yawave server infrastructure. After 30 days, the customer's data will be irretrievably deleted.
XIII. Final Provisions
72 Yawave reserves the right to adjust the prices and conditions, the services and the terms and conditions at any time. Any adjustments will be communicated to the customer in a suitable manner by yawave. If yawave makes a price increase beyond the adjustment to general cost increases or significantly changes the services or the terms and conditions to the detriment of the customer, the customer may terminate the agreement at the time the change takes effect. If the customer fails to do so, he accepts the adjustments.
73 Should individual provisions of these terms and conditions be wholly or partially not legally effective or later lose their legal validity or should there be gaps in the contract, this does not affect the validity of the remaining provisions of these terms and conditions. In such a case, the non-legally effective or missing provisions shall be replaced or supplemented by those that come closest to the original economic and legal purpose of the Terms.
74 These Terms and the individual contracts are subject exclusively to Swiss law, under exclusion of conflict of laws reference provisions of Swiss International Private Law (IPRG) or of international treaties. Exclusive place of jurisdiction is the registered office of yawave.
Lucerne, 5th of June 2019