General Terms and Conditions for Qualit-e Cloud Services
Last updated: 28 November 2019
These General Terms and Conditions (“GTC”) govern the business relationship between Qualit-e Cloud GmbH (“Qualit-e Cloud”) and its customers and visitors, users and others (“You” or “Customers”) who access or use the Services of Qualit-e Cloud on www.qualitecloud.com (the “Services”) for business purposes.
By accessing and using the Services Customers acknowledge and accept the GTC. If You or Customers disagree with any part of the terms then do not access or use the Services.
Qualit-e Cloud reserves the right to amend these GTC from time to time. Your and Customers’ continued access to or use of the Services constitute the acceptance of such revised GTC. The access to or use of the Services are subject to the current version of the GTC published on www.qualitecloud.com at the time of the access or use.
Special terms and conditions may apply in addition to or in lieu of these GTC for additional services provided by Qualit-e Cloud or individual arrangements between you and Qualit-e Cloud. Such terms shall prevail over these GTC in case of conflicts.
1 Contract Conclusion
For the access and the use of the Services, Customers are required to register via online application. Upon acceptance of the application, the issuance of an invoice or another formal act by Qualit-e Cloud, a contract between you and Qualit-e Cloud is concluded. It is in Qualit-e Cloud’s sole discretion to accept or reject an application.
You and Customers shall provide Qualit-e Cloud correct and complete registration data and update any changes within due course: Company name, company address, website url, your full name, email, telephone number.
Once registered, You’ll be provided with a Qualit-e Cloud Account.
b Qualit-e Cloud Accounts
You and Customers are responsible for safeguarding the passwords used to access the Services. You agree not to disclose your password to any third party. You shall notify Qualit-e immediately when becoming aware of any breach or threatened breach of security or unauthorized access to your account.
There are four types of Qualit-e Cloud Accounts:
(1) Account for raw material producers
All currently implemented features enabled. Subscription is subject to a fee.
(2) Account for distributors with the possibility to share and upload own documents
All currently implemented features enabled. Subscription is subject to a fee.
(3) Account for distributors who can share but without the possibility to upload documents
Access to and download of documents. This version is free of charge.
(4) Account for customers with the possibility to download documents
Access to and download of documents. This version is free of charge.
Account types of 1. and 2. above are annual subscriptions, which are invoiced annually (“Subscription”) according to section 7. Three months before the end of the Subscription or the Renewal, Qualit-e Cloud will inform You about the annual renewal of your Subscription. If You do not wish to renew your subscription, You must notify Qualit-e Cloud within 30 days of receiving the information. You will then receive a confirmation of your cancellation by Qualit-e Cloud. If You do not terminate according to this section, your Subscription will automatically renew for another 12 months’ period (“Renewal”).
If You terminate your Subscription, Qualit-e Cloud shall turn off access of your customers to your documents on the effective date of termination. Qualit-e Cloud may delete your uploaded content earliest 3 months after termination of the subscription. Qualit-e Cloud shall send You a notice before irrevocably deleting your uploaded content.
2 Qualit-e Cloud Performance Obligations
a Provision of Services
Qualit-e Cloud shall make the platform available as technical services provider to You and Customers for the use of the platform, i.e. upload documents, access documents and download documents. Qualit-e Cloud shall provide sufficient storage capacity for the Customers to use the Services.
b License to use the Services
For the term of the Agreement, Qualit-e Cloud grants You a non-exclusive, non-transferable right to use the Services according to these GTC. If according to a Services specification the Services are provided by a partner of Qualit-e Cloud, the General Terms and Conditions of that third party shall apply in addition to these GTC.
c Maintenance and Support Services
Qualit-e Cloud shall provide maintenance and support services to Customers. This includes Helpdesk, Troubleshooting, and coordination with third party suppliers. Liability for service interruptions due to troubleshooting, carrying out maintenance or implementing new technologies, is excluded.
d Security Measures
Qualit-e Cloud shall take appropriate organizational and security measures to prevent data loss and unauthorized access. Qualit-e Cloud shall perform regular backups and install state-of-the-art IT security software.
e Use of Subcontractors
Qualit-e Cloud may use the services of third party providers and subcontractors for the purpose of performing the Services.
f Excused Performance
Qualit-e Cloud shall be released from its obligations if Qualit-e Cloud is not able to provide the Services due to a Force Majeure event (war, natural disasters or other events beyond Qualit-e Cloud’s control) of if You or third parties appointed by You do not fulfil your contractual obligations.
3 Obligations of Customers – Acceptable Use Policy
a Technical Equipment
You use the Platform via remote access with fixed or mobile devices. It is entirely your responsibility to provide the equipment and technology required for the use of the Services.
b Use of the Services
When using the Services, You and Customers shall not (i) copy, translate, disassemble, decompile, reverse engineer, or otherwise modify or make any derivative works of the Services; (ii) use the Services in breach of applicable law, in particular transmitting any content or data that is unlawful or infringes any third party intellectual property rights; (iii) circumvent or endanger the operation or security of the Services.
You and Customers will not, and will not attempt to, misuse the Services. This includes, but is not limited to the following:
- probe, scan, or test the vulnerability of any system or network;
- access, tamper with, or use non-public areas of the Services, shared areas of the Services You have not been invited to, Qualit-e Cloud’s (or our service providers') computer systems;
- interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
- plant malware or otherwise use the Services to distribute malware; access or search the Services by any means;
- upload spyware or any other software to the Services;
- send unsolicited communications, promotions or advertisements, or spam;
- send or store altered, deceptive or false source-identifying information;
- promote or advertise products or services other than your own without appropriate authorization;
- violate the law in any way, or to violate the privacy of others, or to defame others.
You and Customers are responsible for maintaining and protecting all of your data. You are responsible for creating and maintaining backup copies of your data independent of the data in the software and Services.
c Data and Content
The Services enable the upload, storage, sharing and making available certain information, text, graphics, videos, or other material ("Content"). You and Customers are solely responsible for the Content that is posted to the Services. You and Customers retain full ownership of any content submitted, posted or displayed on or through the Services and You are solely responsible for protecting those rights. Qualit-e Cloud does not claim any ownership of any Content or assess the Content. Qualit-e Cloud does not provide any medical advice.
Qualit-e Cloud is not responsible for the accuracy, completeness, appropriateness, or legality of files, user information, or any other information You or Customers may be able to access or modify using the Services. The Software and Services provided by Qualit-e Cloud allow You to share your data and content with others. It is solely
Your responsibility to monitor access to Your data and ensuring that access by third parties authorized by You does not violate any laws, contracts, or constitute risks exposure of your data to unauthorized individuals.
You allow Qualit-e Cloud to collect usage statistics.
4 Suspension and Termination of Services
Qualit-e Cloud reserves the right to block Your or Customers access or suspend an Account immediately in the event of gaining knowledge of illegal Content or in case of a court order. In addition, Qualit-e Cloud may terminate the Services and cancel the Subscription without any reimbursement obligations if You or Customers materially breach the provisions of these GTC. Violating the Acceptable Use Policy is considered a material breach of these GTC.
Qualit-e Cloud warrants that the platform will meet the features and specifications as described. However, Qualit-e Cloud does not warrant that the platform is permanently available and that it runs continuously without any interruptions. Qualit-e Cloud makes every effort to secure the database from any loss of data or attacks. Nevertheless, the Services are provided on an "as-is" basis, without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose or Your requirements.
The Parties do not exclude or limit liability for (i) death and/or personal injury caused by negligence of Qualit-e Cloud or Customers, its staff and/or auxiliary persons; (ii) fraudulent misrepresentation; (iii) gross negligence; and/or (iv) wilful misconduct or (v) anything else to the extent it is not capable of being excluded or limited by applicable law.
Except as otherwise required by applicable law, Qualit-e Cloud, its subcontractors, agents or suppliers shall not be liable for any indirect, incidental or consequential damages, including, without limitation, damages for downtime, lost profits, unrealized profits or savings, lost use, loss of earnings or production, additional expenses, costs and compensation for Customers’ procurement of replacement products or services, loss of data or recovery of data. The exclusion of liability also includes damages incurred by You or Customers as a result of necessary measures taken by Qualit-e Cloud to prevent interventions and attacks by third parties (e.g. blocking access to protect the infrastructure of Qualit-e Cloud and the websites of other users against DDoS attacks).
Qualit-e Cloud’s liability for direct damages for claims arising from material breaches of the contract for which Qualit-e Cloud is responsible shall be limited in aggregate for the entire term of the contract to the amount which corresponds to the average annual fee paid by You for the Services.
7 Charges and Payment
All prices and fees are exclusive statutory value-added tax. You shall pay the agreed fees for the Subscription and any Renewal in advance. Payments are due within ten (10) days as of invoice date without offsetting.
Qualit-e Cloud may adjust the fees with effect from the start of a Renewal by giving at least three (3) months written notice to You. The adjusted fee is deemed to be agreed by the Parties for the Renewal if You have not terminated the Services in accordance with section 1c.
8 Intellectual Property
The application providing the Services, including its features and functionality are the exclusive intellectual property of Qualit-e Cloud and its licensors. The Services are protected by copyright, trademark, and other laws of both Switzerland and foreign countries.
If a third party claims the ownership of the Services or that your or Customer’s use of the Services infringe intellectual property rights, You and Customers must immediately inform Qualit-e Cloud of the claim asserted by the third party. Qualit-e Cloud shall defend You or the Customers against such claims by third parties concerning the Services. Qualit- e Cloud shall conduct the legal dispute and any settlement alone with the support of You and Customers.
Either Party undertakes to not disclose any documents and information marked as "confidential" as well as all information which by its nature is confidential (“Confidential Information”) of the other Party to any third party. In case of doubt, the information shall be considered confidential. In addition to technical measures, the Parties shall ensure confidentiality also by means of organisational measures.
Either Party may disclose Confidential Information to its affiliates and employees only to the extent required to perform the contract and on a “need-to-know” basis. The same applies to disclosure to legal representatives, or external legal and tax advisors. The Parties shall not be bound by confidentiality obligations under these GTC if a valid order of a court or other competent governmental authority requires to disclose such information. If possible, the disclosing Party will inform the other Party in advance in writing and make reasonable efforts to protect the Confidential Information.
Upon a Party’s request, the other Party shall either destroy or return the Confidential Information received.
The Parties shall also treat the business relationship as confidential except that Qualit-e Cloud may use the name and logo of You for testimonials and reference on its website.
10 Data Protection
Qualit-e Cloud collects, processes and uses the personal data of You and Customers required to fulfil its contractual obligations and to provide the Services. Details of the collection and processing of personal data when using the Software and Services are described in the Privacy Notice of Qualit-E Cloud. You commit to respect the applicable data protection regulations and to inform all of your employees and users who access the Services accordingly.
You or Customers may not assign the contract, Subscription or Account to any Affiliate or third party without the prior written consent of Qualit-e Cloud.
Qualit-e Cloud’s failure to enforce any right or provision of these GTC will not be considered a waiver of those rights.
Should any provision of these GTC be unenforceable or legally invalid, this shall not affect the validity of the remaining provisions.
These GTC constitute the entire agreement between Qualit-e Cloud and You regarding the Services. They replace any prior agreements regarding the Services that might be in place.
12 Governing Law and Place of Jurisdiction
These GTC shall be governed and construed in accordance with the laws of Switzerland, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).
Exclusive place of jurisdiction shall be Zurich, Switzerland.