Terms and conditions

1. Definitions

1.1. Client: The entity Purchasing the SaaS and/or Services from Websolve as per the Order;

1.2. Confidential Information: any information the receiving party must reasonably understand to be confidential, which includes at least but is not limited to the SaaS and its Documentation. It does not include information that is (i) publicly available, or (ii) obtained independently without violation of the Order or these General Terms and Conditions, or (iii) obtained from third parties without restrictions on disclosure, or (iv) required to be disclosed by applicable law, order of a court or other governmental entity;

1.3. Intellectual Property Rights: all rights designated as “Intellectual Property Rights” under any applicable law, including (but not limited to) copyrights, trademarks, patents, industrial design rights, trade dress, trade secrets, domain names, and moral rights, including all registrations and applications of such rights

1.4. Notice: Written document sent by post or courier with receipt confirmation, facsimile or e-mail. In case of e-mail only if the receiver explicitly and personally (so not automatically) confirmed the receipt of such e-mail by a reply e-mail;

1.5. Offering: Potential Order proposed by Websolve to Client;

1.6. Order: Document describing the SaaS and Services to be delivered by Websolve to Client, the pricing, payment terms and the limitations of use of the SaaS agreed between Websolve and Client;

1.7. SaaS: Software as a service. Online functionality made available by Websolve to Client as per an Order;

1.8. Service: any activity performed by persons on behalf of Websolve for the benefit of Client. This can be consultancy, system development, education, training, research, system implementation and any other kind of activity;

1.9. Term: The period during which the SaaS and/or Services are being performed;

2. Applicability

2.1. These Terms and Conditions apply to every Offering and Order. Any terms other than these not referenced to explicitly in the Order are not applicable.

2.2. Websolve may withdraw or change any offering any moment prior to mutual acceptance.

2.3. In case of a conflict between the Order and these Terms and Conditions, the Order prevails.

3. Subject of the agreement

3.1. Websolve will provide the non-exclusive access to and use of SaaS and execution of Services as per the Order against payment of the prices as specified in the order. The SaaS specified in the Order is described in the commercial documentation of Websolve, available on-line and on request. Websolve is entitled to change the content of the SaaS any moment.

3.2. If not explicitely agreed in the Order, Websolve has no obligation to provide for backup services of the data processed and stored by Client using the SaaS.

3.3. Dates of delivery are provided as estimates. Time is never of the essence.

3.4. Client accepts that Websolve will from time-to-time perform maintenance on the SaaS which may result in unavailability of the SaaS. Websolve will execute such maintenance as much as possible outside office hours. Websolve will inform client up front of any unavailability if such unavailability is foreseeable.

4. Price and payment

4.1. Prices are exclusive of VAT, sales Taxes, service taxes, withholding taxes, duties, or similar charges imposed by any governmental body or public authority and licensee agrees to reimburse Websolve for such taxes and charges (if any). Client may not set off an obligation to pay any charges or fees against any claim on Websolve or suspend payment on any ground. 
4.2. Websolve may adjust prices with a three months Notice. If Client does not agree to the price change Client is entitled to terminate this agreement by Notice within one month after the Notice from Websolve as per the date of the effective date of the changed price.
4.3. In case the Order does not specify a payment term, the payment term is 21 days.
4.4. Unless specified differently on the Order, Services will be charged immediately after having been rendered. In case of continued Services this will be done on a weekly basis.
4.5. In case of payment after the agreed due date Websolve is entitled to 2% interest per month on the overdue amount.
4.6. In case payment is overdue for two months, Websolve is entitled (i) to block Client from all use of all SaaS and to suspend Service provision, and (ii) to terminate any agreements with suppliers it entered into on behalf and/or to the benefit of Client, and (iii) to terminate any agreements it established between Supplier and Client and for which payment is processed through Websolve.

5. Confidentiality

The receiving Party shall maintain the confidentiality of the Confidential Information and will not use or disclose such Confidential Information without the prior written consent of the disclosing Party. A Party shall not disclose any Confidential Information to the other party other than as required for the execution of Orders. At any time, upon the Disclosing Party’s request, the receiving Party shall return to the disclosing Party all Confidential Information in its possession, with the exception of Confidential Information the receiving Party has a valid and specific license for.

6. Non-solicitation

Client acknowledges and agrees that the employees and consultants of Websolve who perform services pursuant to an Order are valuable assets to Websolve and are difficult to replace. Accordingly, Client hereby agrees that during the Term and for a period of twelve (12) months thereafter it will not – without Websolve’s prior written consent – directly or indirectly offer employment as an employee, independent contractor, or consultant to any Websolve employee or consultant who performs any services hereunder.

7. Privacy breaches, Intellectual Property Rights breaches and illegitimate use by Client

7.1. Client warrants not to breach any privacy obligations.

7.2. Client warrants not to breach any Intellectual Property rights caused by the data processed in the SaaS by or on behalf of Client.

7.3. Client agrees not to make any changes or modifications to the SaaS.

7.4. In case Client uses the SaaS to execute illegitimate and/or illegal activities, Websolve may block the access to the SaaS immediately and Websolve may be terminate the Order. Illegitimate and/or illegal activities are for example (but not exclusively) the activities as referred to in the previous paragraphs of this clause, phishing, spamming and executing cyber attacks.

7.5. Client will indemnify Websolve for any claims by third parties caused by Illegitimate and/or illegal activities of or on behalf of Client in the course of the use of the SaaS.

7.6. Websolve is entitled to remove any illegitimate data from its systems immediately if it becomes aware of such data. This right does not imply any obligation to Websolve to perform any monitoring of any data of Client concerning its legitimacy.

8. Infringement Indemnification

8.1. Websolve, at its own expense, shall defend and hold Client fully harmless against any action asserted against Client to the extent that it is based on a claim that use of the SaaS infringes any Intellectual Proprietary Right of any third party.

8.2. Websolve will provide this indemnification under the conditions that the Client shall promptly provide Notice to Websolve of any such claim and the Client will fully authorize Websolve to represent Client in its defense. If as a result of any claim of infringement against any Intellectual Proprietary Right of any third party, Client is enjoined from using the SaaS, or if Websolve believes that the SaaS is likely to become the subject of a claim of infringement, Websolve, at its option and expense will modify the SaaS so as to make it non-infringing, or require Client to immediately discontinue the use of the (infringing part of the) SaaS. Any prepaid amounts for the period the relevant SaaS will not be available will be reimbursed.

9. Intellectual Property Rights

9.1. Websolve does not tranfer any rights of Intellectual Property through any Order or on the basis of these Terms and Conditions. Also in case Websolve develops specific functionality for Client as a Service all Intellectual Property resides with Websolve. Client is entitled to use the functionality developed specifically for Client as a SaaS as per the Order under these Terms and Conditions.

9.2. Client is entitled to receive all data processed by Client into the SaaS. Websolve will provide a copy of such data on request by Notice no later then 30 days after receipt of the Notice.

10. Cooperation by Client

10.1. Client will provide all reasonable cooperation and support to Websolve in order to enable Websolve to execute the SaaS and Services in an effective and orderly manner. In case Client does not provide such reasonable cooperation Websolve may suspend performance of its obligations.

10.2. Client warrants that the SaaS will be used only on its behalf and for its own internal benefit. Client will not allow third parties to access or use the SaaS for their benefit.

11. Warranties

11.1. Websolve warrants the SaaS to be substantially compliant with the documentation provided. Non-compliant SaaS will be corrected or replaced as appropriate or, if neither of the above is commercially practicable, the Order will terminate with respect to the non-compliant SaaS or part thereof and Client will be refunded ant prepaid fees for such SaaS or part thereof.

11.2. In case of a dispute on what functionality may reasonably be expected, Websolve will decide based on reasonable arguments.

11.3. The foregoing are Client’s sole and exclusive remedy. The warranty is made to and for the benefit of Client only.

11.4. EXCEPT AS OTHERWISE SET FORTH IN THE ORDER, THE SAAS AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS", AND, EXCEPT AS OTHERWISE SETFORTH HEREIN, WEBSOLVE MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THEIR FUNCTIONALITY, CONDITION, PERFORMANCE, OPERABILITY OR USE. WITHOUT LIMITING THE FOREGOING, WEBSOLVE DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

12. Limitation of Liability

12.1. Except for (i) the Indemnification by Login for claims by third parties for breaches of Intellectual Property Rights as explicitly provided for in these Terms and Conditions, (ii) for damages due to injury or death, and (iii) for gross negligence or willful conduct by Websolve, the maximum liability of Websolve to Client, in aggregate, shall be limited to the amount of fees paid or to be paid to Websolve by Client under the relevant Order for the year immediately preceding the event giving cause to the damages, or Euro 50,000, if that is the lesser amount. This limitation of liability shall apply to any and all causes of action brought by Client against Websolve, including but not limited to claims based on breach or repudiation of contract, warranty or tort.

12.2. This limitation of liability is also to the benefit of subcontractors or other persons or entities working under responsibility of Websolve in the execution of Orders.

13. Force Majeur

13.1. Except for payment obligations and obligations pertaining to Confidentiality, notwithstanding any contrary provision in the Agreement, neither Party will be liable for any action taken or any failure to take any action required to be taken, in the event and to the extent that the taking of such action or such failure arises out of causes beyond a Party’s control, including, without limitation, war, civil commotion, act of God, strike or other stoppage (whether partial or total) of labor, any failure caused by suppliers of Websolve which failure could not be reasonably prevented by Websolve, any law, decree, regulation or order of any government or governmental body, including any court or tribunal.

13.2. If a situation of Force Majeur continues for over 90 days each of the Parties is entitled to terminate the agreement without obligation to compensate for damages.

14. Termination

14.1. The Order contains the term for the Order and the agreed method of termination.

14.2. Parties may forthwith terminate Orders if:

14.2.1. The other Party breaches these Terms and Conditions and such breach is not cured within ten (10) working days after the other party has been given Notice of such breach; or

14.2.2. if the other Party terminates its business activities or becomes insolvent, is unable to pay its debts as they mature, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.

14.2.3. No termination on the basis of this provision will entitle Client to a refund of any portion of the fees paid to Websolve.

14.3. If not agreed otherwise in the Order, after the Term the Order will be extended automatically for one more year unless either Party has given written Notice of termination to the other Party at least 30 days before the end of the then current Term.

14.4. In case an Order is terminated all charges for SaaS and Services provided up to the moment of termination will be charged to and be payable by Client unless Client proves the SaaS and/or services were not provided according to reasonable standards of quality.

14.5. If Client requests a copy of all data of Client by Notice within 30 days after termination Websolve will provide such copy within a reasonable term. To the extent reasonably possible and desired by Client this will include information about the relations between de data to be provided. Before starting the work, Websolve will provide a quote for the time to the realize the work related to these activities at the then-current rates. If Client accepts the quote Client must pay the amount before Websolve will start the activities. Client may reject the quote in which case Websolve will not be obliged to deliver the data. Websolve will permanently remove all data from Client either after having provided a full copy or after 30 days after termination.

14.6. The following clauses survive termination of Orders: 1, 5, 6, 7, 8, 12, 13, 15, 16, 17, 18.

15. Waiver

Any waiver of the provisions of these Terms and Conditions or rights or remedies of either Party must be provided by Notice. Failure, negligence or delay to enforce any such rights or remedies at any time, will not be construed as a waiver and will not in any way affect the validity of the whole or any part of the Order or these Terms and Conditions or prejudice such party's right to make subsequent action.

16. Severability

If any provision in these Terms and Conditions is found to be invalid, unlawful or unenforceable to any extent, such invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.

17. Notices

Notices are deemed to have been received on the receipt date in the receipt confirmation. Notices must be addressed to the addresses of the parties provided in the Order. The address may be changed by Notice.

18. Injunctive Relief

Client acknowledges and agrees that it would be difficult to fully compensate Websolve for damages resulting from the breach or threatened breach of its Intellectual Property Rights, the Non-Solicitation clause, or the Confidential Information clause and, accordingly, that Websolve will be entitled to seek temporary and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, to protect its rights. This provision with respect to injunctive relief will not diminish any right to claim and recover damages.

19. Non-assignment

Neither the Order nor any rights under the Order may be assigned or otherwise transferred by Client, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior Notice of consent of Websolve which will not be unreasonably withheld or delayed. Subject to the foregoing, the Orders and these Terms and Conditions will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

20. Applicable Law and jurisdiction

20.1. The Law of Hong Kong is applicable to all Orders and these Terms and Conditions. The Vienna Convention on the International Sale of Goods of shall not apply.

20.2. Any conflicts related to Orders and/or these Terms and Conditions may exclusively be brought before the courts of Hong Kong.