Clients and partners of ‘The Tool’
These general terms and conditions (hereinafter referred to as T&Cs) shall apply to all business relationships between The Toolbox AG and their clients to the software programs which are realised from the Toolbox and the software as a service to get through the internet. Other rules laid down in writing shall remain reserved. Such individual contracts, which may differ in nature and scope from these T&Cs, shall be concluded exclusively in writing.
These T&Cs shall apply unconditionally once a client uses one or more of The Toolbox AG’s offerings (including the free use while testing). When booking a licence / licence extension, the client accepts these T&Cs.
As and when required, The Toolbox AG may amend their T&Cs and may also expressly change the prices, nature and scope of their services / licence packages at their own discretion and at any time. Amended T&Cs shall come into effect the moment (date/time) they are published on The Toolbox AG’s website.
The Toolbox AG shall inform their existing clients electronically and/or on their website about changes to their T&Cs in a timely manner. The new T&Cs shall be regarded as accepted without reservation unless client objections are raised within ten days after publication.
The contractual relationship shall be established and commenced when a client logs in/registers for the services of The Toolbox AG, and The Toolbox AG electronically confirms their login/registration for the chosen SaaS service(s) (licence(s)).
“Fixed-term contracts”, in particular contracts that have just been concluded, shall be valid for a term of 365 days, starting with the date of registration, unless other agreements (laid down in writing) exist after the contract would be automatically refreshed for another 365 days. The contract can be cancelled during a period of 30 days but the regular amount owed.
Upon conclusion of a new contract (registration of a new or an additional service) there is at least for all services a minimum of 12 month.
A “permanent contract” can be terminated at the end of the contractual term. Notice of termination must be submitted in writing to The Toolbox AG, not later than 30 days prior to the end date of the contract, on which the contract is to be terminated.
If The Toolbox AG decides to discontinue a particular SaaS service (licence), they shall endeavour to communicate this information to affected clients as soon as possible. In this case, the client shall be entitled to cancel the contract regarding this service with immediate to resign.
The Toolbox AG’s right to immediately cancel the contract for cause shall remain unaffected. Cause for the immediate cancellation of a contract on the part of The Toolbox AG includes scenarios in particular where the client has gone bankrupt or adjudication of bankruptcy in the absence of assets has ceased, if the client is in default with their payment obligations from the contractual relationship with The Toolbox AG and has received a written reminder warning of a potential cancellation of the contract to no avail, if the client is in culpable breach of legal provisions when using the SaaS services of The Toolbox AG or infringes on the rights of third parties, or if the client uses the SaaS services of The Toolbox AG as part of or with the intent to commit or encourage illegal acts or activities.
The Toolbox AG provides their clients with a “software as a service” solution (“SaaS” for short) against payment of a licence fee for the agreed term of the contract; this is available via the Internet (Cloud solution) and can be used on your PC (web application) or your smartphone (app for iOS or Android) for a fee.
Upon payment of the licence fee, the clients of The Toolbox AG receive the simple, personal, non-exclusive and non-transferable right to use the SaaS solution provided by The Toolbox AG for the term of the contract as intended.
The scope of the rights of use shall be determined by the respective licence model.
Clients may not copy or modify the software, and under no circumstances (even temporarily) are they permitted to store it on any data carriers (except for main memory of equipment used for intended purpose) or install it on any systems.
Clients may never provide third parties with the SaaS services supplied by The Toolbox AG as part of their respective contract, regardless of whether this is done for payment or for free.
The scope of the SaaS solutions (licences) and the corresponding prices are always published on The Toolbox AG’s website in their current form.
The Toolbox AG endeavours to give you a service which is always current and provided under the best of conditions. They may therefore implement regular changes (e.g. updates/upgrades/enhancements) that are passed on to their clients.
The range of functions currently valid for a specific SaaS solution (licence) and the associated costs can be found in the service description located on The Toolbox AG’s website.
The client shall pay The Toolbox AG a fee in order to use the SaaS solution (licence) that they provide.
The Toolbox AG shall invoice the client for this at the inception of treaty.
The amount invoiced shall be determined by the type of SaaS solution (licence) chosen by the client and by the current price at the time the contract was concluded.
The price agreed at the time of concluding the contract shall be valid for the contract period.
The Toolbox AG can change their prices, e.g. because the scope of services has changed or for other, business-related reasons. If the client does not want to continue the contract at the changed rates after the term expires, they are entitled to request an extraordinary termination in writing, giving 14 days’ notice to the date on which the change is to take effect. The price that applied before the termination shall be charged for the notice period.
If a contract is getting renewed after 12 month automatically or if a new contract is concluded, The Toolbox AG can charge the price that was valid at the start of the extended or new contract term for the service in question. If the price for an extended contract term increases by more than 5% compared with the price previously charged, the client can cancel the contractual relationship within 14 days. The price that applied before the termination shall be charged for the notice period.
If a client is in default of payment, they shall receive a reminder by mail. If the client fails to make the payment within the deadline specified in the reminder, The Tool AG may block their account until they have been paid. If there is still no sign of payment beyond the reminder period, the contract can be cancelled without notice. In such cases, The Toolbox AG may explicitly pursue claims for damages.
If The Toolbox AG discontinues a service, they shall reimburse the client for any fees already paid on a pro rata temporis basis.
Fees for special cost-based services shall be charged before they are used for the first time.
The Toolbox AG provides warranty for the operational capability and availability of their Cloud-based services in accordance with the provisions contained in these T&Cs.
Where possible, The Toolbox AG aims to provide their services seven days a week, 24 hours a day trouble-free and without disruption.
The Toolbox AG strives to ensure that the systems they use are always at state-of-the-art levels, for their own security and that of their clients.
The Toolbox AG endeavours to adhere to the rules of data protection and data security in their sphere of influence. This also applies to their employees and freelancers.
In the event that issues arise with access to the agreed services, clients shall be entitled to a free-of-charge consultation.
The Toolbox AG continuously checks that their services are functioning properly via monitoring and ensures that the corresponding software is trouble-free in accordance with what is technically possible. Software shall be deemed to be not working correctly if it does not fulfil the functions in full or in part according to the current service description, or if it is not functioning properly in another way, meaning that the client’s use of the service is severely restricted or not at all possible.
Where possible, The Toolbox AG shall carry out maintenance work on systems and make adjustments to services (e.g. updates/upgrades/enhancements), including all measures used to monitor functional reliability or to correct any errors/problems that have been detected, while at the same time ensuring that temporary interruptions or impairments are kept to a minimum.
For major work on systems that can be scheduled, The Toolbox AG shall inform their clients of any upcoming interruptions in service in advance.
In the event of unforeseeable operational disruptions, which severely impact or in fact prevent The Toolbox AG’s services from being used, clients shall be informed promptly, preferably as soon as The Toolbox AG becomes aware of the issue.
Operational disruptions are remedied as quickly as possible.
There is no legal right to 24/7, 100% availability of the SaaS services.
The Toolbox AG saves the data provided by clients, required for the smooth operation of services, and ensures that this client data can be retrieved via the Internet/Cloud as far as is technically possible.
The client may not make this storage space available for use to third parties partially or fully, for payment or without payment.
As far as is technically possible, The Toolbox AG uses their own discretion in taking the necessary precautions to ensure that client data is protected against loss and unauthorised access by third parties (e.g. through regular backups, virus scans, firewalls).
The client shall undertake not to save any content on the storage space, the allocation, publication and use of which violates the law or agreements with third parties.
The client has, in any event, the sole right to the data records introduced by them into the system. They may, at any time during the contractual term of the licence, request that this data be returned. Data shall be returned against appropriate compensation and at Park-Local AG’s discretion using data carriers or via electronic transmission.
After a contract has been terminated, The Toolbox AG shall save the client data up until the licence’s expiry date plus an additional 30 days. Only during this period can the client request that their data be returned. The client data still stored in The Toolbox AG’s systems shall be irrevocably deleted 30 days after the licence expires. Following this, the client shall lose any right to have their data returned accordingly.
The liability of The Toolbox AG shall be limited to the damages caused by intentional breaches of the contract or gross negligence on the part of the company. In the context of the legal provisions, The Toolbox AG shall exclude all liability (including for negligence) towards the client (or any third party), in particular for the fulfilment of their contractual or non-contractual obligations, as well as for loss of data and loss of profits. This limitation of liability shall also apply to damages that result directly or indirectly from using The Toolbox AG’s software.
Any disruptions or defects must be communicated to The Toolbox AG by the client immediately once they become aware of such issues to ensure that these problems can be fixed as quickly as possible.
In particular, The Toolbox AG shall assume no liability for disruptions or defects that occur for reasons outside of their control. This applies especially to security defects and operational breakdowns of third-party companies that they work with or are dependent on (with regard to the function of their services), as well as to defects, damage or disruptions caused by force majeure, extreme environmental influences, interference by clients or disruptions by third parties, e.g. malware attacks which cannot be prevented despite the necessary, current security precautions.
The Toolbox AG is expressly not liable for the negative effects that other programmes may have on the computers of the client while using or accessing the Cloud.
Clients are aware that, despite the safest methods of software development and maintenance, errors can slip in, meaning that the provider – in this case The Toolbox AG – cannot guarantee that all of their desired objectives will always be achieved.
The Toolbox AG expressly draws their clients’ attention to the fact that, due to the current state of technology, data protection and data security in open networks like the Internet cannot be guaranteed for data transmission.
The Toolbox AG shall inform clients on their website about privacy-related and other risks, and security measures that they have to observe.
The Toolbox AG shall assume no liability for damages caused to the client by the content of the data stored by them on the Cloud or by the transfer of the information in question to the Internet or Intranet.
The Toolbox AG shall not assume any liability if, while using the Cloud, a client finds themselves to be in serious breach of data protection and confidentiality obligations in respect of third parties or third-party companies. The clients shall not be relieved of personal responsibility by swapping out data and processes.
In all cases, irrespective of the liability basis, the liability of either contracting party shall be limited to the amount of the licensing fees for the year (12 months) before the damage arose.
All messages from the client must be communicated in writing to the address specified on the home page of the provider, unless stipulated otherwise in these T&Cs or another form (e.g. registered mail) is required by law. Sending messages via fax or email satisfies the written form requirement.
The Toolbox AG prefers to communicate with their clients by email to the address specified when they register. Such The Toolbox AG messages to clients are regarded as messages sent in writing in any case.
Both contracting partners shall endeavour to communicate any address changes, in particular change of email address, to each other without delay.
Messages sent by one of the contracting parties to the email or postal address last specified in writing by the respective other contracting party shall be regarded as legally received.
The Toolbox AG exchanges data via electronic communication means (email, Internet, Cloud etc.) with their clients. In this context, they explicitly point out that email messages sent without encryption may be read, modified, suppressed, delayed and senders may be falsified by unauthorised parties. Furthermore, third parties monitor data traffic on the Internet and may uncover usernames, passwords, addresses etc. accordingly. The Toolbox AG has no influence on this matter and expressly rejects all liability in this regard.
The Toolbox AG shall support clients after they open their account (conclusion of contract) with any technical questions or issues relating to installation and application during the term of the contract.
Clients do not have to pay for the effort involved in correcting faults for which The Toolbox AG is responsible or for the associated consulting.
They can find information on The Toolbox AG’s website about how they should respond in the event of faults and how and where they can receive support. Special escalation agreements can be concluded with the client if desired.
Clients shall be charged on an hourly rate for services and consulting not included in the contract.
Queries (email, over the phone or via the website) submitted by clients shall be received, processed and answered during the business hours published on The Toolbox AG’s website and according to the contractually agreed times within the service scope of the respective chosen SaaS solution (licence).
Clients shall purchase the equipment, at their own expense, that they themselves require to operate the SaaS solution of The Toolbox AG (hardware, software).
The client shall endeavour to specify data essential for the execution of the contract and for the performance of the service accurately and in full, and to communicate any changes without delay. This applies in particular to the address data and email address. Clients shall communicate any address changes and other necessary information to The Toolbox AG immediately.
Clients themselves are responsible for entering and maintaining data and information required in order to use the SaaS services, without prejudice to the obligation of the provider regarding data safeguarding.
The client shall endeavour to safeguard their own system in such a way that no risk to others can be posed from it. In particular, the client’s system – in terms of security, integrity and availability of infrastructure used by The Toolbox AG to provide their services – may not be impaired or damaged. If The Toolbox AG suspects an issue in this regard, they may block their services in part or in full. The client shall be informed accordingly and may be allowed to access the services again at the earliest once they have resolved the threats/issues with their system.
The client is responsible for ensuring that the address names they choose, e.g. domain, email addresses etc. do not infringe upon third-party rights.
The client shall undertake to generate and use secure passwords, to keep these and all other access details safely.
The client must inform The Toolbox AG immediately if they suspect or are sure that an unauthorised third party has (or could have) uncovered their password. In such an event, The Toolbox AG will block access to the data of the affected client without delay and do so until changed passwords and access codes have been implemented. If the client fails to inform The Toolbox AG about the loss or misuse of their passwords and/or other access details immediately, they shall assume full liability for the affected services and/or damages.
The client shall undertake to use the Cloud in a lawful manner and to observe the law that is currently applicable at all times.
The client is solely responsible for the data and information that they enter for The Toolbox AG services themselves.
The Toolbox AG shall assume no liability for damages that occur because the client fails to fulfil the obligations specified in these T&Cs. By contrast, the client shall be liable towards The Toolbox AG for all damages that result from a violation of their contractual obligations in accordance with these T&Cs or other unlawful actions.
The Toolbox AG shall be entitled to block access to the Cloud immediately in particular if the client jeopardises its security through improper use or criminal activities, if the client accesses the data of other users without authorisation, or if The Toolbox AG becomes aware of criminal activities conducted by the client. Moreover, in the latter case, The Toolbox AG shall be entitled to inform the responsible authorities if need be.
The client shall undertake to prevent unauthorised third parties from accessing the services of The Toolbox AG, to respect copyright law, and in particular to ensure that they do not pass on access data.
The client shall undertake to check their data for viruses and other harmful components before entry, and to use protection programmes according to the latest technology in this regard.
The client shall undertake to release The Toolbox AG from all third-party claims attributable to data entered/stored by the client. They shall also endeavour to reimburse The Toolbox AG for all costs resulting from potential legal breaches.
Generally speaking, the contracting parties shall endeavour to treat as confidential all information that is not generally known or generally accessible, or required to properly meet the contractual obligations, especially information relating to expertise and programming.
This obligation to maintain confidentiality starts before the contract is concluded and extends beyond the term of the contract.
The Toolbox AG reserves the right to publicly mention clients as a reference. If a client is not in favour of this, they can submit their objection in writing.
The Toolbox AG saves and evaluates user data for operational purposes within the scope of the applicable statutory provisions. The client expressly declares their consent to this.
The Toolbox AG fulfils all of their rights and obligations from this contract themselves, and does not pass these on to third parties. This excludes services that The Toolbox AG receives from third parties out of necessity in order to provide their services. In the event that individual services need to be provided by third parties, The Toolbox AG shall do their utmost to select a provider that is subject to Swiss or EU data protection law.
All intellectual property rights regarding The Toolbox’s services, software, website, and documentation shall remain the property of The Toolbox AG. In particular, The Toolbox AG has and retains all copyright and rights of use to the software they develop.
Swiss law applies to this contract, excluding the regulations of the uniform UN sales law (CiSG).
Place of jurisdiction is the registered office of The Toolbox AG. The Toolbox AG is allowed to prosecute their clients at their living- or workingplaces.
If a clause of these T&Cs proves to be invalid or unenforceable, the validity and enforceability of the remaining clauses shall not be affected. Where possible, the invalid or unenforceable clause shall be replaced by an equivalent, valid and enforceable clause that comes closest to fulfilling the purpose of its predecessor. The same shall apply to any loopholes found in these T&Cs.
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