GENERAL TERMS AND CONDITIONS OF SERVICES

 

In these General Conditions, and in any Special Conditions applicable to the Contract:

 

The following terms shall have the following meanings unless the context otherwise requires:

 

Conditions: these General Conditions and the Special Conditions which are applicable to the Contract.

 

Customer: the person, firm or company who purchases Services from the Supplier.

 

Hardware: the equipment, cabling and systems provided by the Supplier in

connection of the Services.

 

Keywords: those words notified to the Customer by the Supplier which control the Customer’s access to some of the Services including without limitation a password and username.

 

Order: a request made by the Customer to the Supplier for Services to be supplied under the Conditions.

 

Services: the internet related services described in the Order which are provided or to be provided by the Supplier under these Conditions (and any applicable Special Conditions).

 

Software: the computer software provided by the Supplier in connection with the Services.

 

Supplier: FOLIOKIT, a private company incorporated and registered in Switzerland whose registered office is at 15 rue des Voisins, 1205 Geneva, Switzerland.

 

 

Application of conditions

 

The Conditions shall apply to any Contract between the Supplier and the Customer for the provision of Services; and shall prevail over any inconsistent terms or conditions submitted by the Customer or implied by law, trade custom, practice or course of dealing.

The Supplier shall be entitled to amend the Conditions at any time by giving notice to the Customer at least 30 days before the changes take effect, such notice to be given by email or by notification on the Supplier’s website. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). The Customer shall not be entitled to any refund of the fees and shall remain liable for any fees previously due. Failure to give such notice of termination shall be deemed acceptance of the new Conditions. Any renewal of the Services shall be subject to the Supplier’s Conditions current at the date of renewal.

 

The Order constitutes an offer by the Customer to purchase the Services specified in it on the Conditions. A contract for the supply and purchase of those Services on the Conditions shall be created when the Supplier accepts the Order or commences/executes work pursuant to the Order.

Supplier's obligations

 

The Supplier shall perform the Services with reasonable care and skill and in accordance with best industry practice but shall not be liable for downtime caused by routine or emergency maintenance by the Supplier or occasioned by third parties.

 

The Supplier reserves the right at any time and from time to time to amend, improve or correct the Services, Software and/or Hardware (or any part thereof) provided that such modification does not materially affect the Services, Software and/or Hardware (and any part thereof).

 

The Supplier shall process the Customer’s personal data in compliance with the Supplier’s privacy and Security Policy. The Customer hereby consents to such processing of such personal data for the purpose of the provision of the Services.

 

 

Supplier's liability

 

The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”), provided that it:

 

·  promptly notifies the Customer of the nature and extent of the Force Majeure Event causing its failure or delay in performance and keeps the Customer regularly informed by email of the likely duration of the Force Majeure Event; and

·  has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

 

The corresponding obligations of the Customer will be suspended to the same extent as those of the Supplier affected by the Force Majeure Event.

 

If the Force Majeure Event prevails for a continuous period of more than 30 days, any party may terminate the Contract by giving written notice to the other party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.

 

The Supplier shall have no liability to the Customer under the Contract if the Supplier's performance of its obligations under the Contract is prevented or delayed by any act, omission, fault or negligence of the Customer or the Customer's agents, sub-contractors or employees, and in particular due to:

 

·  Damage to the Customer’s equipment, software or telecommunications links;

·  Wrongful use of the Software, including by the Customer or the Customer’s clients, or non-compliance with any operating instructions given by the Supplier;

·  Disclosure, unlawful or fraudulent use of the Keywords;

·  Fault, negligence or omission by a third party not connected to the Supplier;

·  Issue by a competent authority of an order which is binding on the Supplier and which affect the Services;

·  Total or partial loss of the material and/or data uploaded due to an error by the Customer;

·  Incompatibility of the Software with any of the Customer’s equipment, software or telecommunications links.

 

The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Customer in respect of any:

·  breach of the Contract;

·  use made by the Customer of the Services;

·  representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

 

 

Subject to the following condition, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

 

Nothing in the Conditions excludes the liability of the Supplier for:

·  death or personal injury caused by the Supplier's negligence;

·  fraud or fraudulent misrepresentation.

 

Subject to Conditions:

·  the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

·  the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for that part of the Services to which the liability relates.

 

The Customer acknowledges that there is a risk that any material or data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a failure or on suspension or termination of the Services and that the Supplier shall be under no obligation to back-up all such material or data. The Customer shall take any precautionary measures for preserving such material or data in the event of loss, or damage, however caused. (The Supplier recommends customers to back up their material at least once a month).

 

 

Customer's obligations

 

The Customer warrants that:

·  it has the power and authority legal to enter into and perform its obligations under the Contract.

·  it has received all relevant information and advice from the Supplier before placing the Order and that it has satisfied itself that the Services shall be suitable for its particular needs.

·  its use of the Services will not infringe any third party intellectual property or other rights.

 

The Customer shall:

·  not knowingly use the Services, Software, and/or Hardware or allow them to be used for any unlawful purpose or to send SPAM or for the publication, linking to, issue or display of any unlawful material (which shall include without limit any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including without limit intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Customer's country or any other place where the results of such purpose or such material can be accessed;

·  not knowingly use the Services, Software and/or Hardware or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of the Supplier may harm the Supplier or any of its clients or bring the Supplier into disrepute or may call into question any action taken by the Supplier on the Customer's behalf;

·  not provide any technical or other information obtained from the Supplier and/or relating to the Services, this Agreement or the Contract to any person, company, firm or government which the Customer knows or ought reasonably to be aware may directly or indirectly lead to a breach of any English law or regulation;

·  not knowingly use the Services, Software and/or Hardware or allow them to be used in breach of the Supplier’s Acceptable Use Policy, which can be found at www.foliokit.com, and shall bring it to the attention of the Customer’s authorised users;

·  provide the Supplier with accurate contact details, bank details and email address, and shall promptly notify the Supplier of any changes by email;

·  comply with the Supplier’s reasonable instructions and requests concerning the Services;

·  immediately notify the Supplier by email if it becomes aware of any unauthorised use of all or any of the Services, Software and/or Hardware;

·  ensure that all Keywords are at all times kept confidential, used properly and not disclosed to unauthorised people and if the Customer has any reason to believe that any Keyword has become known to someone not authorised to use it or if any Keyword is being or is likely to be used in an unauthorised way or the Customer is aware of any other breach of security then the Client shall inform the Supplier immediately. For the avoidance of doubt, the Customer shall be solely responsible for any unauthorised and/or fraudulent use of the Keywords whether such unauthorised and/or fraudulent use is due to its agents’, sub-contractors’ or employees’ fault, omission or negligence. Any change of Keywords, at the Customer’s request, will be charged to the Customer on a time-and-material basis.

·  inform the Supplier promptly in the event of any actual or suspected security breaches in connection with the Services;

·  provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;

·  ensure that it has all necessary consents, permissions and licences to make use of the Services;

·  use the Services in a manner consistent with any and all applicable laws and regulations;

·  maintain appropriate insurance cover in respect of its liability arising out of or connected with this Contract with a reputable insurance company.

 

The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any act of negligence, default, or wilful misconduct by the Customer, failure by the Customer to comply with its obligations under this Contract or any use made by the Customer of the Services.

 

 

Technical support

 

The Supplier shall provide technical support to the Customer:

·  via its website at www.foliokit.com;

·  by email using the contact form at www.foliokit.com or the email address support@foliokit.com

·  by granting access to a forum.

 

The Supplier shall not, in any event, be obliged to provide support:

·  in respect of faults or problems directly or indirectly arising from

o              incorrect use of the Services

o              products or services not supplied by the Supplier

o              any cause external to the Services;

·  where the Customer is using anything other than the most recent version of the Software;

·  where the Customer or any third party not authorised by the Supplier has modified the Software or attempted to resolve the problem;

·  if any fees due to the Supplier are unpaid.

 

Fees and payment

 

The fees for the Services shall be set out in accordance with the Supplier’s price list as amended from time to time, such price list being available online at www.foliokit.com. The total fees for the services shall be confirmed by the Supplier, shall be inclusive of VAT, and shall be payable in CHF (Swiss Franc).

 

The Supplier shall be entitled to vary its price list at any time by giving notice to the Customer at least 30 days before the new price list is to come into effect, such notice to be given by email or by notification on the Supplier’s website. Upon receipt of such notice, the Customer shall be entitled to terminate the Contract with effect from the date of the notice, such termination to be notified to the Supplier no later than 30 days from the date of the notice (time being of the essence). Failure to give such notice of termination shall be deemed acceptance of the Supplier’s new price list.

 

The Customer shall pay the fees upon placing the Order, and at the interval(s) specified therein and upon renewal of the Services by credit or debit card. All fees shall be non-refundable unless otherwise stated.

 

The Supplier shall provide the Services upon receipt of the fees in full and clear funds by the Customer. The Supplier shall acknowledge receipt of the payment and inform the Customer of the commencement date of the Services. Such commencement date shall be an estimate only and the Supplier shall not be liable to the Customer for any delay.

 

Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:

·  charge interest on such sum from the due date for payment at the statutory rate for the time being applicable, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;

·  suspend all Services until payment has been made in full;

·  declare that all sums due by the Customer under any contract with the Supplier are immediately payable;

·  refuse to enter into any further contract with the Customer for the provision of any services by the Supplier.

 

Time for payment shall be of the essence of the Contract.

 

All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

 

The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

 

The Customer may not dispute any fees and/or Services unless s/he notifies such dispute to the Supplier by email at support@foliokit.com within 30 days from the Order.

 

The Customer shall provide such information and documentation as the Supplier may require in order to verify the Customer’s contact details for security purposes.

 

 

Limitation of services

 

The Supplier acknowledges that given the nature of the Internet and the fluctuation of the bandwidth, the Services provided by the Supplier may be subject to variation.

 

The Supplier shall be entitled to restrict or suspend the Services if:

·  the Customer commits any serious or persistent breach of any of its obligations, as described in this document;

·  an order which is binding on the Supplier is issued by a competent authority;

·  the Supplier wishes to carry out routine or emergency maintenance, repair or upgrade to the Services; or

·  this is permitted under any Special Conditions applicable to the Services.

 

 

Intellectual property rights

 

The Customer acknowledges that the Supplier shall retain ownership of all intellectual property rights relating to the development or supply of the Services including all methodologies, know-how and processes used and in any information, software or other data created by the Supplier as part of the Services (the “Materials”).

The Supplier shall grant a non-exclusive revocable licence to use, store and view on the Customer’s own internal computer network the Materials made available to the Customer as part of the Services.

 

 

Term and Termination

 

The Contract shall commence on the date notified by the Supplier and shall terminate automatically on the expiry date specified in the Order (the “Expiry Date”). The Supplier shall notify the Customer of the Expiry Date by sending at least 3 reminders by email to last email address notified and updated by the Customer from time to time.

 

Unless:

·  the Supplier gives the Customer not less than 30 days notice by email that no right of renewal will apply if the Contract expires on the Expiry Date;

·  the Special Conditions provide otherwise;

·   

the Supplier shall give notice to the Customer (a “Renewal Notice”) by email offering the Customer the opportunity to renew the Contract for a further period as specified in the Renewal Notice, subject to the Supplier’s Conditions current at the date of renewal, upon payment of the renewal fee specified by the Supplier in the Renewal Notice. If the Supplier receives such payment in full and in clear funds no later than the Expiry Date, the Contract shall be renewed for the further period specified in the Renewal Notice. If the Customer fails to pay the renewal fee on or before the Expiry Date (time being of the essence), the Contract shall expire automatically on the Expiry Date.

 

The Customer shall be entitled to terminate the Contract at its convenience at any time by giving notice to the Supplier. For the avoidance of doubt, the Customer shall not be entitled to the reimbursement of the fees (or part thereof) by the Supplier in such circumstances.

 

The Supplier shall be entitled to terminate the Contract at any time and without incurring any liability if:

·  the provision of the Services to the Client affects or may affect the safety or stability of the Supplier’s equipment or software. The Supplier shall use reasonable endeavours to notify by email the Customer in advance of such termination; or

·  there is a change of control in the Customer.

 

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:

·  the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;

·  an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

·  an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder;

·  a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets;

·  the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;

·  the other party ceases, or threatens to cease, to trade;

·  the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

 

Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.

 

 

Waiver

 

A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

 

Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

 

 

Severance

 

If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

 

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

Status of pre-contractual statements

 

Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in the Contract.

 

 

Assignment

 

The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

 

The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

 

 

No partnership or agency

 

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

 

 

Third party rights

 

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

 

 

Notices

 

Unless otherwise stated, any notice under the Contract shall be in writing and shall be delivered by recorded delivery post or by commercial courier (requiring signature on delivery) to the other party at its address as set out in the Contract, or such other address as may have been notified by that party for such purposes. A correctly addressed notice sent by recorded delivery post shall be deemed to have been received on the second Business Day after posting (a “Business Day” means a day other than a Saturday, Sunday or public holiday in England). A correctly addressed notice sent by commercial courier shall be deemed to have been received on the date and at the time of signature of the courier's delivery receipt.

 

 

Governing law and jurisdiction

 

The Contract and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the laws of Switzerland.

 

The parties irrevocably agree that the courts of Switzerland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.