YOU HEREBY ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO COMPLY WITH ALL THE LEGAL REQUIREMENTS IN THE COUNTRIES IN WHICH YOU ARE USING THE SERVICES.
“Affiliate(s)” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity from time to time (but only for so long as such control exists); whereas “control” means the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the management of an entity and/or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity.
“Authorized User” means the Customer itself or those of its employees who are authorized to use the Services according to the selected Subscription Type.
“Customer Content” means any information or data (including Personal Data and Customer Personal Data) of Customer, its personnel or Authorized Users, e.g. name, business telephone, address, email, user IDs, which Luware and its Affiliates, and their contractors and subprocessors, may store or otherwise process for the purpose of providing the Services.
“Data Controller”; “Data Processor”; “Data Subject”; “Personal Data” shall have the meaning given to them by the applicable Data Protection Laws.
“Data Protection Law(s)” are all applicable laws and regulations regarding the protection of Personal Data including, in particular, the General Data Protection Regulation (GDPR) (EU) 2016/679 (https://gdpr-info.eu/) and the data protection laws of Switzerland.
“Documentation” means any written information or instruction that is given to Customer in connection with the provision of the Services including in particular any requirements of the customer environment for the proper use of the Services: https://help.luware.com/.
“Intellectual Property (IP)” means and includes, to the extent recognized under applicable law, rights in software, including in particular source code and all related documentation, patents, patent applications, copyrights, trademarks, service marks, trade names, internet domain names, e-mail address names, trade secrets, moral rights, database rights, customer lists, design rights, know-how, techniques, processes, methods, inventions (whether patentable or not), conceptions, discoveries, improvements, chip designs, mask works, proprietary information, technical information, specifications, and all other rights of authorship and intellectual and industrial property rights, and other equivalent or similar rights which may subsist anywhere in the world, whether registered or unregistered, including any form of application for any of the foregoing.
“Ready for Service” means the date on which Luware has conducted the necessary configurations in order for Customer to be able to use the Services.
“Reseller” means an authorized partner of Luware which is entitled to resell Luware’s Services on behalf of Luware.
“Services” means Luware’s cloud-based hosting services as well as any thereto related Documentation offered to Customer under the respective Subscription Type and during the Subscription Term.
“Software” means any software used to provide the Services hereunder and includes in particular the source code, database elements and accompanying documentation (operating manuals, instructions for installation and administration, technical literature and other documentation on paper and/or in electronic form).
“Subscription Term” means the initial 36 month term as well as any subsequent renewal term of 12 months, unless otherwise agreed in an offer.
“Subscription Type” means the different types of Services offered by us to Customer from time to time on the Web-App.
“Web-App” means the web-app used in connection with the Services offered to Customer from time to time.
2.5 The Services are designed to be available 24/7, subject to maintenance. Customer will be notified of scheduled maintenance. Luware may, at its own discretion, change or discontinue the Services at any time subject to statutory legal provisions of the laws of Switzerland.
3.2 Customer shall not, and shall not permit anyone to (i) copy or otherwise reproduce the Services or Software; (ii) make the Services or Software available to anyone other than Authorized Users; (iii) modify, adapt, create derivative works of, reverse engineer, decompile, disassemble or otherwise interfere with the Services or Software; (iv) attempt to derive the source code of the Software used to provide the Services; (v) access or use the Services or Software to provide services to third parties; (vi) access the Services or Software in order to build a similar product that would violate Luware’s IP; or (vii) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Software or Services available to any third party.
4. Customer responsibilities
4.2 Compliance with Laws. Customer shall ensure its compliance, as well as compliance of its Authorized Users, with the applicable laws and regulations. The Services may not be used in any jurisdiction for unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly. Customer shall hold Luware and all its Affiliates, directors and employees harmless from and against any claims that may arise out of Customer’s violation of the applicable laws and regulations.
4.3 No unauthorized users. Customer may access the Services only to the extent of authorizations acquired by Customer and it shall ensure that only Authorized Users may access the Services. In any case, Customer is responsible for use of the Services by any user who accesses the Services with Customer’s account credentials.
4.4 Customer Content. Customer is solely responsible for ensuring the correctness, accuracy and lawfulness of Customer Content and its appropriate protection and backup. Customer is responsible for obtaining all necessary rights and permissions to enable, and grants such rights and permissions to, Luware, and its contractors and subprocessors to use, provide, store and process Customer Content in the Services. This includes Customer making necessary disclosures and obtaining consent, if required, before providing individuals’ information, including personal or other regulated information in such Customer Content. If any Customer Content could be subject to governmental regulation or may require security measures beyond those specified by Luware for an offering, Customer will not input, provide, or allow such Customer Content unless specifically permitted or unless Luware has otherwise first agreed in writing to implement additional security and other measures. Customer shall indemnify and hold Luware and all its Affiliates, directors and employees harmless from and against any claims that may arise out of or in connection with incorrect, inaccurate or unlawful Customer Content.
4.5 Customer Environment. Customer will provide the required consents and connectivity to access and use the Services, including any required Customer-specific URL addresses and associated certificates. The Documentation may have additional Customer responsibilities.
4.6 No Reselling. Customer may not resell direct access to the Services to a third party outside Customer’s enterprise or combine the Services with Customer’s value add to create a commercially available Customer branded solution for which Customer charges a fee.
5. Subscription and Payment
5.2 Support. Support levels to the Services are defined in each individual offer document by Luware or, as applicable, by one of its Resellers.
5.3 Payment. The Services are payable from the date where Luware is Ready for Service. Unless otherwise agreed in an offer, all payment for Services is due within 30 days of date of invoice. Luware takes all the payment due under the respective Subscription Type prior to the beginning of each Subscription Term and stores the payment information securely (fees may be invoiced if applicable for the respective Customer). Customer shall receive the log in details once cleared payment is received by Luware. Should Customer fail to pay any of the fees due, then Luware shall notify Customer giving it an extension period of 10 days after which Luware shall be entitled to suspend the provision of and access to the Services hereunder.
5.8 Fee Increase. Upon expiration of the initial Subscription Term, the then-current list price for the chosen Subscription Type shall apply for each subsequent 12 month renewal term. Customer may request the then-current list price prior to the automatic renewal of the Subscription.
6.1 Luware represents and warrants that it will provide the Services hereunder in a professional manner consistent with good industry practice and that the Services will perform substantially in accordance with the Documentation.
6.2 Other than within the means of support service levels directly delivered by Luware, Luware does not warrant or guarantee that the Services will be performing free of errors or uninterrupted or that Luware will correct all errors in the Services or that it will prevent third party disruptions or unauthorized third party access.
6.4 Non-Luware services are sold on a pass-through basis meaning that they are warranted by the provider thereof in accordance with the terms of such third party provider. Customer agrees that Customer will rely solely on warranties of such third party providers. Luware shall choose such third party services carefully and according to good industry practice.
6.5 The warranty for a chosen Subscription Type ends when such Subscription Term ends.
THE SERVICES HEREUNDER ARE PROVIDED “AS IS”. EXCEPT TO THE EXTENT EXPRESSLY STATED HEREUNDER, PROHIBITED BY THE APPLICABLE LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, LUWARE AND ITS AFFILIATES (I) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR ANY THIRD PARTY CONTENT; AND (II) EXCLUDE ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF (a) MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; (b) THAT THE SERVICES WILL BE UNINTERRUPTED, FREE OF ERRORS OR HARMFUL COMPONENTS OR THAT LUWARE WILL CORRECT ALL ERRORS; AND (c) THAT THE CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
8. Limitations and Liability
EACH PARTY’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES RESULTING FROM IT’S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER OVER THE TERM OF THE AGREEMENT SHALL BE LIMITED TO THE SUBSCRIPTION FEE ACTUALLY PAID FOR THE RESPECTIVE SUBSCRIPTION TERM DURING WHICH THE CLAIM OF LIABILITY AROSE. NEITHER PARTY OR IT’S AFFILIATES SHALL BE HELD LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFIT, REVENUE, BUSINESS, VALUE, CUSTOMERS, OPPORTUNITIES, ANTICIPATED SAVINGS, GOODWILL, REPUTATION, USE OR DATA). LUWARE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES ARISING IN CONNECTION WITH CUSTOMER’S INABILITY TO USE THE SERVICES. THESE LIMITATIONS APPLY COLLECTIVELY TO EACH PARTY, ITS AFFILIATES, CONTRACTORS, SUBPROCESSORS, AND SUPPLIERS.
10.2 In addition, Luware may disclose Customer Content to Luware employees, contractors, and subprocessors, to the extent necessary to deliver the Services.
10.6 The Confidential Information is disclosed “as is”. No representations or warranties, express or implied, are made by either Party as to the accuracy, reliability, completeness or reasonableness of the Confidential Information.
11. Data protection
11.1 Luware ensures full data integrity of Customer Data and Customer Personal Data in accordance with the applicable Data Protection Laws from time to time. Some of Luware’s data protection measures can be found under https://luware.com/en/agreements/tom/. Additionally, a Data Protection Whitepaper for some of the Services can be provided together with an offer.
11.3 Both Parties agree to abide to, and Customer shall ensure that its Authorized Users abide to, the applicable Data Protection Laws. Customer shall be the Data Controller with regards to the Customer Personal Data it or its Authorized Users provide to Luware during the provision of the Services and Luware shall be the Data Processor in relation thereto.
11.4 Customer shall, if applicable, procure, and be able to demonstrate that it has obtained, a valid consent from the Data Subject and that the Data Subject has been informed of its right to withdraw such consent before the processing of its Personal Data.
11.7 The Parties arrange for that their internal organization is set up in a way that enables them to comply with the applicable Data Protection Laws and good industry practice and that the technical and organizational measures taken provide appropriate protection regarding confidentiality, integrity, availability and capacity of the respective systems. Luware arranges for, and is able to demonstrate, that any system on which it keeps Customer Personal Data, including back up data, is secure and ensures full data integrity in accordance with the data security requirements and good industry practice. Luware shall be entitled to make back-up copies of the Customer Personal Data where this is required for the proper performance of the Services or by the applicable laws and regulations.
11.8 Both Parties ensure that Personal Data are only disclosed to or accessible by those employees or third parties who need to have access to it for the proper use or performance of the Services.
11.9 Luware shall in due course, and in any event within twenty-four (24) hours, notify Customer in the event that it becomes aware of any breach of the applicable Data Protection Laws which may impact the safety of the Customer Personal Data in its possession.
12. Term and Termination
12.3 Luware may suspend, revoke or limit Customer’s use of the Services if Luware determines there is a material breach of Customer’s obligations, a security breach, or violation of law. If the cause of the suspension can reasonably be remedied, Luware will provide notice of the actions Customer must take to reinstate the Services. If Customer fails to take such actions within a reasonable time, Luware may terminate the Services.
14. Applicable law and jurisdiction
SaaS Agreement (15/06/2020)
SaaS Agreement (01/01/2019)