These Terms and Conditions (hereinafter referred as “T&C”) contain the contractual regulations between PROMIS@Service S.a.r.l., 21 Rue de Nassau, L-2213 Luxemburg, (hereinafter referred to as “PROMIS@Service”) and the Customer for the use of the Process Oriented Quality Management Internet Services and eLearning that PROMIS@Service is offering as Application Service Provider (ASP) and Compliance Management System (hereinafter referred to as “PROMIS®”).
“Authorized User” means employees of Customer, but not employees of other legal entities (including employees of any legal entity that is a subsidiary of Customer or part of a group of companies affiliated with Customer) as well as Users who are granted the use of PROMIS® according to a license as laid down in these T&C.
“Consultant” means a professional consultant and / or well-qualified regional expert recognized by PROMIS@Service who can offer their services in connection with the use of PROMIS®. Consultants will be carefully selected according to clear qualification criteria.
“Customer” means the legal entity e.g. small or medium sized enterprise (SME)as well as freelancers concluding the Contract with PROMIS@Service. Private individuals, who are consumers according to the applicable law, shall not become Customers.
“Local Management Assistant” means a person who after training provided by PROMIS@Service can assist the Customer in applying myPROMIS.
“Parties” means PROMIS@Service and Customer.
The term “Password” refers to all letters and/or series of numbers intended to prevent use by unauthorised persons.
“Service Description” means the explanatory printed or electronic materials provided by PROMIS@Service as Annex to these T & C and that constitute part of the Contract.
“Service” means solely those services rendered by PROMIS@Service as laid down in the Service Description.
“Place of Use“ means the premises of the Customer and the place of work of the Authorized User. Place of Use includes also places outside the premises of the Customer, where the Authorized User works on PROMIS® through a remote access to the Customer’s server.
The provisions of these T&C shall apply to all Services concluded between the Parties even if not expressly agreed again. General Terms and Conditions of Customer shall not become part of this Contract.
3. Contracting Parties, Contract Formation, Initial Period
3.1 The Contract for making available PROMIS® is entered into between PROMIS@Service and the Customer.
3.2 In order to gain access to PROMIS®, the Customer has to register electronically. The Contract between PROMIS@Service and the Customer shall come into effect upon advance payment of the Basic Fee by Customer and when PROMIS® is made available by PROMIS@Service. By making PROMIS® available, PROMIS@Service declares its acceptance of the Customer’s request to conclude the contract. PROMIS@Service reserves the right to reject the request to conclude the Contract in individual cases for important reasons. Subject to other agreement between the Parties, the Contract is subject to an Initial Period of one (1) year after the conclusion of the Contract. Customers do not have a right of rescission.
3.3 PROMIS® may be used by the Customer involving a Consultant and/or a Local Management Assistant. In the event that a Consultant and/or a Local Management Assistant are involved, the contractual relationship with respect to such involvement is solely established between Customer, Consultant and/or Local Management Assistant. PROMIS@Service shall not become party to such an agreement.
4. Subject Matter of the Contract
All services of PROMIS@Service shall be rendered exclusively on the basis of
- these T & C and
- the Service Description
5. Availability of PROMIS®
5.1 Once a Contract is concluded between the Parties, Customer will receive a Password in order to enter PROMIS®.
5.2 PROMIS@Service grants to Customer a nonexclusive, nontransferable, limited right to access and use and/or – if necessary – install, PROMIS® in the Place of Use to process PROMIS® for Customer’s own internal business purposes.
5.3 Any usage of PROMIS® outside the scope of this Contract constitutes an infringement of PROMIS@Service’s intellectual property rights and is a material breach of this Contract.
5.4 No title to or ownership in PROMIS® is transferred to Customer. Title to PROMIS® and all applicable rights in patents, copyrights, trade secrets and other intellectual property rights inherent in PROMIS® will remain in PROMIS@Service or third parties from whom PROMIS@Service has obtained the right to license such other inherent intellectual property rights.
5.5 PROMIS offers its Customers via the PROMIS Portal also access to contents and services (e.g. e-training) which are provided by third parties. The use of these contents or services may be against payment or free of charge. Precondition for the use such contents or services provided by third parties, is a valid contract between the Customer and PROMIS@Service. With the termination of this contract between PROMIS@Service and the Customer, Customer’s rights to use the contents and services provided by the third party will also expire.
7. Customer´s Responsibilities and Prohibited Actions
7.1 Remarketing of PROMIS®. It is expressively forbidden to Customer to cause or permit disclosure, display, access to, or use of PROMIS® to or by anyone other than an Authorized User.
7.2 Transfer of PROMIS®. Customer may not distribute, rent, loan, lease, sell, sublicense or otherwise transfer all or any portion of PROMIS®, or any rights granted in the Contract, to any other person without the prior written consent of PROMIS@Service.
7.3 Transfer of Passwords: Passwords may not be passed on to third parties and must be kept where they cannot be accessed by third parties. For the sake of security, they must be changed at regular intervals. Where misuse is suspected, the password must be changed immediately.
7.4 Entering by false Password: Where a false password is entered repeatedly, this may lead to the service, for which the password applies, being blocked for use by the Customer.
8. Fees and Payment
8.1 The fees are laid down in a separate price list to be downloaded from the PROMIS® portal. The fees are subject to VAT (value added tax). The use of the services of PROMIS® requires prior electronic payment of the indicated fee or cashless transfer payment after receipt of the invoice by electronic service.
8.2 Basic Fee. Registration of Customer will be subject to a Basic Fee. The Basic Fee is to be paid for a period of 12 months each, counted from the date of payment.
8.3 Fee per Service: Customer may choose special services as laid down in the Service Description which are subject to a separate fee.
8.4 Adjustment of Fees: PROMIS@Service will inform the Customer in due time in writing about all changes of fees. In case of an price increase the customer will, within a period of six weeks beginning with the receipt of the information, have the right to terminate the the contract with immediate effect. In case of such termination the price increase will not apply to fees already paid. Fees already paid will be refunded pro rata for the remaining part of the contract year.
9. Data backup; loss of data
Customer shall seek to a suitable backup of its data, materials, and programs and be responsible for any loss of its data. Customer is especially responsible for the correct entry of its data in PROMIS®.
10. Limitation of Liability
10.1 PROMIS@Service´s liability for damages in accordance with the statutory provisions is unrestricted where a breach of duty attributable to PROMIS@Service was the result of intent.
10.2 In case of gross negligence PROMIS@Service´s liability for damages in accordance with the statutory provisions is restricted to the aggregate amount paid to PROMIS@Service under this Contract for the specific Service that caused the damage.
10.3 Where the attributable breach is the result of simple negligence and there has been a culpable breach of an essential condition of the contract, PROMIS@Service`s liability for damages shall be limited to foreseeable damage which typically occurs in similar cases. In the event of death, personal injury or damage to health, PROMIS shall be liable in accordance with the statutory provisions. Otherwise, liability is excluded. Liability under the provisions of the statutory provision on product liability shall remain unaffected.
10.4 To the extent that liability of PROMIS@Service is excluded or limited, this shall also apply to its staff and representatives.
10.5 The statutory period of limitation for claims for damages against PROMIS@Service shall be one year calculated from the statutory commencement date of the period of limitation unless damage was caused intentionally.
10.6 Customer shall be obliged to immediately notify PROMIS@Service in writing of any damage within the meaning of the aforementioned liability provisions or to have such damage recorded by PROMIS@Service so that PROMIS@Service is informed as early as possible and, together with Customer, may be able to minimize the loss.
11.1 PROMIS@Service will defend, at its expense, any action brought against Customer to the extent that it is based upon a claim that PROMIS® furnished hereunder infringes patent, copyright, trade secret or other intellectual property right and will pay all costs and damages finally awarded against Customer by a court of competent jurisdiction, provided that PROMIS@Service is given prompt written notice of such claim and is given information, reasonable assistance, and sole authority to defend or settle the claim.
11.2 PROMIS@Service, at its option, will obtain for Customer the right to continue using, or will replace or modify PROMIS® involved so it becomes not infringing; or, if such remedies are not reasonably available, PROMIS@Service will grant Customer a refund for the Service involved.
11.3 PROMIS@Service will have no obligation under this Section if the alleged infringement or violation is based upon the use of PROMIS® in combination with other technical systems or software not furnished by PROMIS@Service if such alleged infringement or violation would not have occurred except for such combined use or if such claim arises from PROMIS@Service’s compliance with Customer’s designs, specifications or instructions.
11.4 This Section represents the sole and exclusive liability of PROMIS@Service for infringement of the intellectual property rights of a third party under this Contract.
12. Duration of the Contract
Other agreement between the Parties notwithstanding, this Contract shall be concluded for an initial period of one (1) year. It will thereafter be automatically extended by periods of 1 year each.
13.1 The Contract may be terminated by either Party at the end of each Contract year by giving three months’ notice.
13.2 If either Party materially defaults in the performance of any of its duties or obligations under this Contract and fails to cure the default within 30 days after written notice, the other Party may, by giving written notice thereof, terminate this Contract effective immediately. The following acts of Customer will be in particular regarded as material default:
introducing viruses, pornographic content, or other non permitted and/or non legal actions.
13.3 In the event of Customer’s insolvency or in the event that insolvency is dismissed due to a lack of Customer’s assets or funds PROMIS@Service may terminate this Contract by written notice.
13.4 In case of termination of this Contract PROMIS@Service will for a period of six (6) weeks beginning with the date of termination keep available for surrender the data entered by the Customer into myPROMIS. If the Customer claims surrender during the above mentioned 6 weeks period, PROMIS@Service will make available to the Customer his data according to a “static top view” in form of a data carrier or electronically in the CSV format. After expiry of the 6 weeks period PROMIS@Service is entitled to delete at any time Customer’s data stored in myPROMIS.
14.1 The Parties recognize that in the course of providing access to PROMIS® and performing the services pursuant to this Contract and the Service Description, both Parties may have access to confidential information and trade secrets belonging to the other and each desire that such confidential information and trade secrets remain confidential. Each Party agrees that all confidential information and trade secrets communicated to one Party by the other in any manner (the “Confidential Information”), will be used by the recipient Party only for the purposes allowed by this Contract.
14.2 The other Party’s Confidential Information will not be disclosed by the recipient Party, other than to its Authorized Users and, in the case of PROMIS@Service, to its employees, agents, and contractors, without the prior written consent of the other Party. Each Party will advise its employees and, in the case of PROMIS@Service, its agents, and contractors, who receive any of the other Party’s Confidential Information of its confidential nature and will obligate them to corresponding confidentiality.
14.3 The confidentiality provisions of this Section will not apply to any Confidential Information that, as the respective receiving Party can proof, (i) was or becomes generally available to the public other than as a result of disclosure by the recipient Party in violation of this Contract; (ii) becomes available to the recipient Party from a third party , provided that the recipient Party has no reason to believe that such third party is itself bound by a confidentiality or nondisclosure Contract with the other Party or otherwise prohibited from disclosing such Confidential Information by a legal, contractual or fiduciary obligation; (iii) was in the recipient Party’s possession prior to receipt from the other Party; (iv) is required to be disclosed by the recipient Party by a governmental agency or law, so long as the recipient Party provides the other Party with written notice of the required disclosure promptly upon receipt of notice of the required disclosure. Upon any actual or threatened violation of this Section by either party, the other Party will have the right, in addition to such other remedies which may be available to it, to seek injunctive relief enjoining such acts or attempts, it being acknowledged and agreed that monetary damages are inadequate to protect the other Party.
14.4 This Section will survive the expiration or termination of this Contract for any reason.
15. Final Provisions
15.1 This Contract constitutes the full and complete statement of the Contract between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous Contracts, understandings or communications, whether written or oral, relating to such subject matter.
15.2 Subject to assignment of money claims Customer shall not transfer individual rights under this Contract or the Contract as a whole to third parties unless PROMIS@Service gives its express written consent. PROMIS@Service shall give its consent if justified concerns of Customer regarding the transfer of rights considerably prevail over the interests of PROMIS@Service.
15.3 The General Terms and Conditions, the Terms and Conditions of Purchase, and other standardized terms of contract which Customer attaches to its orders or otherwise makes known to PROMIS@Service shall not apply. By applying for access to PROMIS® Customer expressly declares that it will not make reference to its own terms and conditions in the relationship between the Parties.
15.4 This Contract shall be governed by the laws of the Grand Duché de Luxembourg. Private international law and UN Sales Law shall be excluded.
15.5 The exclusive place of jurisdiction for all disputes arising out of the contractual relationship, including proceedings concerning checks, bills of exchange, or deeds, shall be the head office of PROMIS@Service. PROMIS@Service may also sue Customer at its registered office or establishment.
15.6 If individual provisions of these T&Cs are or become ineffective in whole or in part, the effectiveness of the remaining provisions shall not be affected thereby.
15.7 Waiver of exercise of rights or non-exercise of rights under these T&C by either party shall not lead to a waiver of additional rights.
Luxembourg, April 2012