By filling out the registration form to order the Konta software on the homepage of Neofidès SA (the «Provider»), the Client (the «Client») submits without reservation to the present General Terms of Use («General Terms of Use»). The Provider reserves the right to modify them at any time. The modified General Terms of Use come into force as soon as they are published on the website.
1.1. Neofidès SA provides, through the Konta software (hereinafter « Konta »), Software as a Service (« SaaS ») services to its Clients via the Internet in the field of enterprise software.
1.2. The object of the present agreement is:
o The provision of the Provider’s Konta software for use via the Internet.
o The backup of the Client’s data (« data hosting »).
o The provision of various additional modules in addition to the Konta software. Additional modules («add-ons») are also offered by the Provider itself. Add-ons can be ordered or configured directly through the Konta-Web account or on the Provider’s application marketplace.
2.1. 2.1. The Provider makes the software solution «Konta» available to the Client, in its latest updated version, for the duration of the agreement, via the Internet and against remuneration. The Provider must be able to store the software on a server accessible to the Client via the Internet.
2.2. The Provider carries out regular improvements to the software and makes them available to the Client through updates and upgrades. All current features can be consulted in the description of services on the Provider’s website (Neofidès SA).
2.3. The Provider continuously monitors the proper functioning of the software and corrects errors when their elimination is technically possible. By the term « error », the Provider refers exclusively to cases in which the software would not perform the functions set out in the description of services, would deliver erroneous results, or would not function operationally, such that use of the software would become impossible or significantly reduced.
3. Rights to use the software
3.1. The Provider grants the Client the non-exclusive and non-transferable right to use the software «Konta» for the duration of the agreement, within the framework of the SaaS services and in accordance with their description.
3.2. The Client is not authorized to reproduce or edit the software, if this authorization is not expressly mentioned in the updated description of services on the website. In particular, the Client is prohibited from temporarily installing or storing the software on data media (hard drives or similar media) of its own hardware (outside of RAM).
3.3. The Client is not authorized to make this software available to third parties, whether for a fee or free of charge. Any form of making the software available to third parties is expressly prohibited to the Client.
3.5. In addition to the software «Konta», the Client has the option to order various additional packages (« add-ons ») from the Provider. Certain add-ons expressly allow the integration of third-party Providers into the software. If access rights are necessary to use such an add-on, the Client, when ordering the add-on, must expressly give consent to the granting of the necessary access rights.
3.6. The Provider makes available to the Client an interface (« API ») for communication with the software of third-party Providers. The Provider reserves the right at all times to restrict access, partially or totally, to this interface, for just cause. By just cause(s), the Provider refers in particular to any form of incident(s) such as the intention to harm the Provider through the migration of data on the interface or when the infrastructure is overloaded with requests on this interface.
4.1. The Provider reserves for the Client a defined storage space on a server, for the backup of its data. If this space proves insufficient, the Provider informs the client, who may acquire, against remuneration, additional storage space. The client is advised that in the event of refusal to order additional storage space, the data exceeding the available storage space would not be saved.
4.2. The Provider ensures that data saved via the Internet can be consulted, on the condition that this is technically possible.
4.3. The Client does not have the right to make this storage space available to a third party, neither partially, nor totally, nor for a fee, nor free of charge.
4.4. The Client undertakes not to store on the storage space any content whose distribution, publication and use would be contrary to applicable law, immoral or in breach of agreements made with third parties.
4.5. The Provider takes the necessary measures to prevent as much as possible the loss of data and unauthorized access by third parties to the Client’s data. In particular, the Provider undertakes to carry out regular backups and to install firewalls and antivirus software.
4.6. The Client is in all cases the only party entitled to access its own data. It may at any time require the Provider to return all or part [GVL1] of its data, without any possibility for the Provider to exercise any right of retention. The return of the data takes place according to the Client’s choice, by the transmission of a data medium, or by sending via a data network. The Client has no additional right to the software that hosts the data 4.7. After termination of the agreement, the Client also has a period of one month from the date of termination to request the return of its data under the terms of point 6 above. The Provider is not required to continue to save the Client’s data beyond this period. If a Client requests the return of its data after the expiry of this one-month period, and provided that this data is still available at the Provider, the data is handed over to the Client against payment of the actual costs.
5.1. The Provider responds, by telephone or in writing, to the Client’s questions and requests (by email or telephone), relating to the software «Konta» and the other SaaS services (additional modules) during the opening hours as published on the website Neofidès.ch, and this, as quickly as possible after receipt of each message.
6.1. The adaptations, modifications and additions to the SaaS services forming part of the agreement, as well as the measures serving to diagnose and repair malfunctions, may lead to a temporary interruption or a temporary accessibility deficiency.
6.2. The control of the basic functions of the SaaS services takes place daily. The maintenance of the SaaS services takes place in principle from Monday to Friday, from 8 a.m. to 7 p.m. In the event of a severe breakdown, i.e. when the use of the SaaS services is no longer possible or severely limited, the maintenance takes place, as far as possible, within 24 hours after the Client has informed the >Provider. The Provider notifies the Client of maintenance work in due time and carries it out as quickly as possible.
7.1. The Client takes all precautionary measures to prevent access to the software by unauthorized third parties. If necessary, the Client informs its employees of the need to respect copyright. The Client advises its employees in particular of the absence of any authorization to copy the software and to transmit the access data to third parties.
7.2. The Client is personally responsible for the entry and processing of the data and information necessary for the use of the SaaS services – without prejudice to the Provider’s obligation to ensure data security.
7.3. The Client undertakes to test its data and information against viruses and other malicious programs before uploading them and to install for this purpose modern and up-to-date antivirus protection programs.
7.4. When first using the SaaS services, the Client must generate a password itself in order to then be able to use the SaaS services. The Client is required to keep its received identifier and its password secret and to take all measures to prevent third parties from being able to access them.
7.5. The Client must immediately inform the Provider of any unauthorized use of its «User ID» and its password or of any other security breach. Where applicable, the Provider modifies the Client’s «User ID» and password, in agreement with the latter.
7.6. The Client must take all measures necessary to safeguard or improve the security of the data, the software and the network connections, in accordance with the Provider’s recommendations. The user undertakes in particular to change its password regularly, at least once every sixty (60) days.
7.7. After termination of the contractual relationship, the Client is solely responsible for the backup of its data. The Provider is entitled to irreversibly delete all of the Client’s data one month after termination of the agreement.
7.8. If the Client breaches one of the obligations specified in the present General Terms of Use or other contractual provisions, the Provider is authorized to restrict or block temporarily or permanently its Konta account as well as access to all of the Provider’s services, without any damages being able to be claimed as a result from the Provider.
8.1. The Client undertakes to pay the Provider the remuneration agreed according to its subscription, together with the legal value added tax, for the provision of the software and the data hosting.
8.2. Unless otherwise agreed in writing, the fees must be paid in advance.
8.3. The Provider sends the Client an invoice reflecting the contractual amount charged.
8.4. The Provider is authorized to adjust the pricing and the contents of the service by written communication to the Client, for the next termination date. The reasons that may lead to a modification of the services are in particular technical progress and the continuous development of the software. If the Client does not wish to continue its agreement following a price change, it may exceptionally terminate the agreement, subject to compliance with a period of 14 days from the time of the change.
8.5. In the event of late payment, the Provider is entitled to temporarily block the Client’s Konta account and thus access to all of the Provider’s services. In this case, the agreed fees remain due in full, including during the restriction period in question. Access to the service will be reactivated upon receipt of payment of the unpaid invoices. In the event of deletion or restriction of access, no damages can be claimed from the Provider.
9.1. The Provider guarantees the proper functioning and availability of the SaaS services, according to the provisions set out in the present General Terms of Use.
9.2. The Client is solely responsible for any claims by third parties in connection with data saved by the Client and undertakes to indemnify the Provider for all costs incurred by these claims.
9.3. The Provider is authorized to immediately block the storage space if there are well-founded reasons to believe that the stored data is illegal and/or infringes the rights of third parties, in particular if it is informed of steps taken by the Courts, other authorities or third parties. The Provider must immediately inform the Client of this restriction and its reasons. The block must be lifted as soon as the suspicions are fully refuted. In the event of deletion or restriction of access related to suspicions of illegality of the Client’s data, no damages can be claimed from the Provider
9.4. The Provider’s warranty is limited to the obligation to repair the contractual software at the place of the agreement. Any claim for defect is otherwise excluded when the defect is negligible or arises from a circumstance for which the Provider is not responsible, in particular when the defect is the result of normal wear and tear, inadequate use, incorrect or negligent handling by the Client or non-compliance with the Provider’s installation conditions. In particular, the Provider declines all liability towards the Client (or towards any third party), notably in the performance of its contractual and non-contractual obligations, for the loss of data as well as loss of profit (including for negligence). This exclusion of liability is also valid for damages resulting directly or indirectly from the use of the software « Konta ».
9.5. In all cases, regardless of the basis of liability, the reciprocal liability of the parties to the agreement is imperatively limited to the amount of the monthly access fees of the last twelve months preceding the occurrence of the damage.
9.6. The warranty of functional and operational availability as well as the liability relating to the software and services of third-party Providers (in particular the add-ons, the consulting services and the banking interfaces) are totally excluded to the extent permitted by law.
10.1. The contractual relationship starts with the request and registration carried out by the Client. The Client can choose between a monthly and annual subscription.
10.2. Monthly subscriptions are concluded for an indefinite period and can be terminated by both parties subject to compliance with a notice period of one month, at the end of the month mentioned.
10.3. Annual subscriptions are concluded for a period of one year. If the Client does not terminate its subscription no later than 30 days before the annual expiry, the subscription is then tacitly and automatically extended for a new year. The invoice for the annual subscription is issued in advance, once a year.
10.4. Termination procedure: The termination of the agreement must be initiated online, from the Client’s Konta account. Once the termination request has been made, the Provider sends an email containing a confirmation link to the Client. When the termination is confirmed, the Client’s account is closed after the expiry of the notice period.
10.5. The parties are free to invoke the immediate termination of the agreement for just cause. The Provider essentially recognizes, as « just cause » that may lead to an immediate termination of this agreement, the following circumstances:
o if the Client goes bankrupt or a bankruptcy petition for lack of assets is filed against it.
o if the Client has been summoned to satisfy its payment obligations under its contractual obligations and if it is in default of payment of at least one monthly fee and if it benefits from an additional period of two weeks and if it is under the threat of a dissolution of the agreement, all steps remaining in vain.
o if, in using the services covered by the agreement, the Client wrongfully violates the applicable rules of law or infringes the rights of third parties in matters of copyright, intellectual property or naming rights;
o in the event of use by the Client of the services provided for criminal, illegal and ethically questionable purposes.
o if the Client seriously breaches its obligations in accordance with the present GT or other contractual provisions.
10.6. In the event of the death of the owner of a sole proprietorship, the Provider is in principle authorized to communicate the data of the sole proprietorship to authorized persons (in particular family members and fiduciaries). This communication is subject to the existence of a legitimate interest (estate planning, division of estate, etc.). Furthermore, in the event of the existence of a legitimate interest, the Provider may grant an authorized person access to the Konta account of the sole proprietorship concerned or transfer the account to such a person (an heir, for example). If doubts remain as to the legitimacy of this interest or if several parties present divergent claims, the Provider may refuse the communication of the data or other measures.
11.1. The Provider undertakes to remain silent about all confidential procedures and information elements that have come to its knowledge in the context of the preparation, execution and fulfillment of its contractual obligations, in particular the commercial or industrial secrets of the Client, and not to communicate this information to outside third parties without the Client’s authorization. This principle is valid towards all unauthorized third parties, unless the transmission of information proves necessary for the correct fulfillment of the Provider’s contractual obligations or if it is required by court decision.
11.2. The Provider is authorized to officially cite the Client as a reference and in general – except in the event of express written opposition from the latter – in an appropriate manner, with reference to the concluded agreement, for marketing and sales purposes.
12.1. By accepting these General Terms, the Client also accepts the Privacy Policy in its currently applicable version. The latter is available at any time on the homepage of Neofidès.ch. The Client declares to have knowledge of both documents.
13.1. All intellectual property rights relating to the services, the software «Konta», the website and the documentation relating to the services remain the exclusive property of the Provider.
14.1. All communications must be sent in writing to the addresses given by the Client at the time of its registration and by the Provider on its homepage, except where a stricter and more imperative mode of communication is provided for in the agreement or by law. Email transmissions satisfy the requirements of the written form. Communications from the Provider sent to the email address indicated by the Client at the time of its registration are valid in all cases as written communication.
14.2. Each of the partners to the agreement is required to immediately inform the other partner of any change of address (including email address), failing which communications sent in writing to the last known address will be deemed to have been validly transmitted.
15.1. If one of the provisions of this agreement should prove to be lapsed or null and void, this does not call into question the validity of the other provisions. In this case, the parties replace the invalid provision with a new provision compliant with legislation whose meaning and effect from an economic point of view come as close as possible to those of the invalid provision. The parties proceed in the same way in the event of a manifest gap.
16.1. This agreement, including questions relating to its conclusion and validity, is governed by Swiss law, excluding conflict of law rules and international agreements. With regard to all legal relationships arising from the present contractual relationships, the parties agree to apply Swiss law.
16.2. The exclusive jurisdiction for all disputes arising from or in connection with this agreement, or in connection with the object of the present agreement, including questions relating to the conclusion, validity or invalidity, obligations, implementation, modifications or additions, breach or termination of the agreement, is the registered office of the Provider. For all disputes that may arise in the context of the performance of the present contractual relationships, the courts of Neuchâtel have exclusive jurisdiction.
