SaaS Terms of Use for QueueMetrics Live and QueueMetrics For Ms Teams (TeamsMetrics)

Effective starting Oct 11, 2024.

Please read this Agreement carefully and immediately cease using the Services if you do not agree to it.

Acceptance

These Terms and Conditions, and any other terms and policies referred to in these Terms and Conditions, form the agreement between Loway SA (referred to as "Loway", “SaaS Provider”, “we” or “us”) and the user (referred to as “Customer” or “you”), collectively referred to as the Parties or each a Party, (Agreement).

The SaaS Provider owns, or holds the relevant rights to, the offered Software and will license the use of the Software as a service to the Customer.

The Customer wishes to license the SaaS Services from the SaaS Provider to be used by its business operations.

This Agreement sets out the terms upon which the SaaS Provider has agreed to grant a license to the Customer to use the SaaS Services. This Agreement is binding on any use of the Services and applies to the Customer from the time that the SaaS Provider provides the Customer with an account (Customer’s account) to access and use the Services (Effective Date).

By accessing and/or using the Services you:

  • warrant to us that you have reviewed this Agreement, including our Website Terms of Use (available on the Site) and our Privacy Policy (available on the Site), with your parent or legal guardian (if you are under 18 years of age), and you understand it;

  • warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and

  • agree to use the Services in accordance with this Agreement.

You must not create a Customer account unless you are at least 18 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) create a Customer account and/or use the Site, you agree to: (i) supervise the Minor’s use of the Site and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site and their Customer account; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.

By using our Services, you acknowledge that you have read, understood, and accepted this Agreement and you have the authority to act on behalf of any person or entity for whom you are using the Services, and you are deemed to have agreed to this Agreement on behalf of any entity for whom you use the Services.

Services

  • On or from the Effective Date and during the Term, the SaaS Provider agrees to provide the Services in accordance with the terms of this Agreement.

  • The Customer agrees the SaaS Provider owns or holds the applicable licences to all Intellectual Property Rights including but not limited to copyright in the Software and SaaS Services and any documentation provided with the Services by the SaaS Provider to the Customer including any Customer configuration documentation.

  • The SaaS Provider reserves the right to change or remove features of the SaaS Services from time to time. Where there is any material alteration to the SaaS Services in accordance with this clause, the Customer agrees that any material alteration is at the SaaS Provider’s discretion.

The Parties agree that the SaaS Provider:

  • will supply the Services on a non-exclusive basis;

  • does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and

  • is not liable for any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by any failure of the Customer Environment or the facilities or services of any third party.

  • the SaaS Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.

SaaS Service Licence

In consideration for payment of the Fees, the SaaS Provider grants to the Customer a non-exclusive, non-transferable (except as otherwise permitted under this Agreement), personal, revocable, licence to access and use the SaaS Services in accordance with the Service Provider’s intended purpose for the SaaS Services (SaaS Licence).

The Customer agrees that the SaaS Licence:

  • commences from the Effective Date or the day the Customer is granted access to the SaaS Services by the SaaS Provider, whichever occurs first;

  • permits the Customer to use the SaaS Services in accordance with the SaaS Services’ normal operating procedures; and

  • permits the Customer to provide access and use of the SaaS Services to Authorised Users by embedding the SaaS Services into Customer’s services to its customers, as applicable.

Licence Restrictions

The Customer must not access or use the SaaS Services except as permitted by the SaaS Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the SaaS Provider’s Intellectual Property Rights in the SaaS Services or Software. Without limiting the foregoing provisions, the Customer agrees and acknowledges that it must not and will not permit any person to:

  • resell, assign, transfer, distribute or provide others with access to the SaaS Services;

  • “frame”, “mirror” or serve any of the SaaS Services on any web server or other computer server over the Internet or any other network;

  • copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the SaaS Services or Software; or

  • alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the SaaS Services or Software.

The Customer must not use the SaaS Services in any way which is in breach of any statute, regulation, law or legal right of any person within Switzerland or the jurisdiction in which the Customer or its Personnel are located.

Data

The Customer grants to the SaaS Provider a limited licence to copy, transmit, store and back-up or otherwise access, use or make reference to any Intellectual Property Rights in the Data:

  • to supply the Services including to enable the Customer, its Personnel and any Authorised Users to access and use the Services;

  • to do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provide such Data is re-identified;

  • for diagnostic purposes;

  • to test, enhance and otherwise modify the Services whether requested by the Customer or not;

  • to develop other Services; and

  • as reasonably required for the performance of the SaaS Provider’s obligations under this Agreement.

The Customer represents and warrants that:

  • any and all Data supplied by the Customer or otherwise accessed by the SaaS Provider through the provision of the Services is the sole and exclusive property of the Customer or the Customer has secured any and all authorisations and rights to use the Data as applicable;

  • its Data does not breach any relevant laws, regulations or codes;

  • its Data does not infringe the Intellectual Property Rights of any third party;

  • it will comply with all applicable laws and regulations in the jurisdiction where the Customer accesses and publishes content using the SaaS Services; and

  • to the extent that the Data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this Data in accordance with applicable privacy and data protection laws.

The Customer acknowledges and agrees that:

  • any collation, conversion and analysis of Data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of Data. The SaaS Provider is not liable for any such errors, omissions, delays or losses. The Customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;

  • The SaaS Provider may relocate the Data to another jurisdiction. In each case, the SaaS Provider will give the Customer 15 Business Days’ notice and use all reasonable endeavours to minimise the effect of such change on the Customer’s access and use of the Services;

  • The SaaS Provider is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by the Customer, its Personnel, its Related Bodies Corporate or any Authorised Users; and

  • The SaaS Provider is not responsible for the integrity or existence of any Data on the Customer’s Environment, network or any device controlled by the Customer or its Personnel.

The Customer agrees to indemnify and hold the SaaS Provider harmless for the corruption or loss of any Data controlled or stored by the Customer or any Related Bodies Corporate, to extent the corruption or loss is not caused by the negligent act or omission of the SaaS Provider or its Personnel.

Support and Service Levels

During the Term, the SaaS Provider will provide the Support Services in accordance with the Service Levels during the Support Hours provided that:

  • the Customer provides the SaaS Provider with notice for applicable Services in accordance with any applicable system and processes as set out on the Site, as applicable; and

  • where required, the Customer assists with investigating and ascertaining the cause of the fault and provides to the SaaS Provider all necessary information relevant to the fault (including but not limited to what the Customer or their Personnel has done in relation to the fault).

SaaS Provider Additional Responsibilities and Obligations

The SaaS Provider must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorised access, use, copying or disclosure.

Customer Responsibilities and Obligations

The Customer will provide all required materials as required by the SaaS Provider from time to time for the SaaS Provider to perform the Services.

The Customer must, at the Customer’s own expense:

  • provide all reasonable assistance and cooperation to the SaaS Provider in order to enable the SaaS Provider to supply the Services in an efficient and timely manner including but not limited to obtaining from Authorised Users any consents necessary to allow the Customer and its Personnel to engage in the activities described in this Agreement and to allow the SaaS Provider to provide the Services;

  • use reasonable endeavours to ensure the integrity of the Data;

  • permit the SaaS Provider and its Personnel to have reasonable access to the Customer Environment for the purposes of supplying the Services;

  • ensure that only Customer Personnel and Authorised Users will access and use the SaaS Services and such use and access will be in accordance with the terms and conditions of the SaaS Licence; and

  • make any changes to its Customer Environment that may be required to support the delivery and operation of any Services.

The Customer is responsible for its use of the Services and must ensure that no person uses the Services:

  • to break any law or infringe any person’s rights including but not limited to Intellectual Property Rights;

  • to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or

  • in any way that damages, interferes with or interrupts the supply of the Services.

The Customer acknowledges and agrees that:

  • it is responsible for all users using the Services including its Personnel and any Authorised Users;

  • its use of the Services will be at its own risk;

  • it is responsible for maintaining the security of its account and password. The SaaS Provider cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;

  • the SaaS Provider may alter or update the Customer’s account logins and passwords and the logins and passwords of any Authorised Users at any time throughout the Term;

  • the Customer is responsible for all content posted and activity that occurs under their account. This includes content posted by others who have logins or accounts associated with the Customer’s account;

  • if they operate a shared Customer account, make (or allow any third party to make) material available by means of the Services (including shareable links), the Customer is entirely responsible for the content of, and any harm resulting from, that content. That is the case regardless of what form the content takes, which includes, but is not limited to text, photo, video, audio, or code;

  • the technical processing and transmission of the Service, including the Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;

  • if the SaaS Provider wishes to alter the delivery of the SaaS Services which requires a change to the Customer Environment (including reconfigurations or interface customisations the extent necessary to access or use the SaaS Services) the Customer will give any assistance to the SaaS Provider or make any such changes to the Customer Environment, that the SaaS Provider reasonably requires; and

  • the SaaS Provider may pursue any available equitable or other remedy against the Customer as a result of a breach by the Customer of any provision of this Agreement.

Prohibited Use

The Customer acknowledges and agrees that this Agreement incorporates by reference the terms of any acceptable use policy as set out on the SaaS Provider’s website or as provided to the Customer from time to time.

The Customer acknowledges and agrees that it must not, and will ensure each Authorised User does not:

  • use the SaaS Services to violate any legal rights of any person, the Customer or other entity in any jurisdiction;

  • use the SaaS Services in a way that causes prejudice or damages to other customers;

  • use the SaaS Services in a way that causes excessive load or disruption on the underlying infrastructure;

  • use the SaaS Services in relation to crimes such as theft and fraud;

  • use the Services in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;

  • make any unauthorised copy of any copyrighted material owned or licenced by the SaaS Provider;

  • introduce malicious programs into the SaaS Provider System (e.g. viruses, worms, trojan horses, e-mail bombs);

  • reveal the Customer’s account password to others or allow use of the Customer’s account the to those who are not the Customer’s Personnel or Authorised Users;

  • use the SaaS Services to make fraudulent offers of goods or services;

  • use the SaaS Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorised to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;

  • use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the SaaS Services;

  • send any unsolicited email messages through or to users of the SaaS Services in breach of the Spam Act 2003 (Cth) or to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages; use the SaaS Services in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited; and

  • use the SaaS Services to circumvent user authentication or security of any of the Customer’s hosts, networks or accounts or those of the Customer’s customers or suppliers.

Communication

Each Party will appoint and maintain at all times a relationship manager who will be responsible for the management of this Agreement.

Payment

The Customer must pay the SaaS Provider:

  • the Fee; and

  • any other amount payable to the Provider under this Agreement, without set off or delay using the Payment Method in accordance with the Payment Terms. All Fees are in CHF (Swiss Francs), and are payable in advance.

If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. The Customer acknowledges and agrees to the extent of any inconsistency between this Agreement and any terms and conditions attached to the Customer’s purchase order, the terms of this Agreement will prevail. The Parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to this Agreement.

If there is a Variation, the SaaS Provider will include the Variation Fees due and payable for the Variation performed in invoice(s) subsequent to the performance of any Variation.

If any payment has not been made in accordance with the Payment Terms, the SaaS Provider may (at its absolute discretion):

  • immediately cease providing the Services, and recover as a debt due and immediately payable from the Customer its Additional Costs of doing so;

  • charge interest at a rate equal to the Swiss Central Bank’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;

  • engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or

  • report the Customer to any independent credit data agencies.

Confidentiality

Each Party must (and must ensure that its Personnel do):

  • keep confidential any Confidential Information; and

  • not use or permit any unauthorised use of Confidential Information

Confidentiality does not apply when:

  • the information is in, or comes into, the public domain (other than by a breach of this clause 12 by the relevant Party);

  • the relevant Party has the prior written consent of the Party that disclosed the Confidential Information;

  • the disclosure is required by law;

  • the disclosure is required in order to comply with this Agreement, provided that the Party disclosing the Confidential Information ensures the recipient complies with the terms of this clause; and

  • the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the Party disclosing the Confidential Information ensures the adviser complies with the terms of this clause

Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause.

This clause will survive the termination or expiry of this Agreement.

Intellectual Property Rights

  • A Party’s ownership of, or any right, title or interest in, any Intellectual Property Rights in an item which exists prior to the Effective Date (Pre-Existing Material) will not be altered, transferred or assigned by virtue of this Agreement.

  • The Customer grants to the SaaS Provider a non-exclusive, royalty free, non-transferable and revocable licence to use any of the Customer’s Intellectual Property Rights including any Pre-Existing Material as reasonably required for the SaaS Provider to provide the Services to the Customer.

  • We do not screen content uploaded onto the SaaS Service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Service that we deem inappropriate, illegal, offensive, threatening, libellous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party’s Intellectual Property Rights or this Agreement.

  • We have the discretion (but not obligation) to terminate a Customer’s access to and use of the Services if, we determine that Customer or its Authorised Users are repeat infringer of the Intellectual Property Rights of us or third parties.

This clause will survive the termination or expiry of this Agreement.

Privacy

Each Party and its Personnel agrees to comply with its obligations under the Swiss privacy laws and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and this Agreement.

Details can be found on the Site.

The SaaS Provider reserves the right to amend its Privacy Policy as required from time to time.

This Agreement supplements and incorporates the Privacy Policy and, to the extent the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) applies to this Agreement, the GDPR Data Processing Schedule where we are a processor under the GDPR.

The SaaS Provider will take all reasonable steps to notify the Customer in writing if it becomes aware of any actual, threatened or suspected breach of Data where such breach involves personal information.

The Customer warrants that it has obtained each of its Personnel’s informed consent for the Service Provider, its related bodies corporate, and their respective Personnel to use, store, manipulate or otherwise deal with the personal information contained in the Data.

The Customer must ensure that any collection, processing, use, disclosure and transfer by the Customer and its Personnel of personal information in connection with the performance of its obligations under this Agreement complies with all applicable privacy law and the privacy policy of the Customer.

The Customer must take all necessary steps to ensure that the personal information held or accessed by it in connection with this Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure (Data Breach). The Customer will promptly give written notice to the Service Provider of any actual or suspected Data Breach and will provide information, assistance and other cooperation as requested by the Service Provider in respect of the Data Breach.

The Customer must co-operate with any reasonable requests or directions of the Service Provider relating to the security, use, disclosure, and transfer of personal information, the Service Provider’s legal obligations relating to the personal information, complaints relating to the personal information and the rights of individuals to access and correct the personal information or opt out of receiving any communications from or on behalf of the Customer.

The Service Provider will retain Customer’s information for as long as Customer account is active or as needed to provide Customer services. Service Provider will retain and use information as necessary to comply with legal obligations, resolve disputes, and enforce agreements.

This clause will survive the termination or expiry of this Agreement.

Representations and Warranties

Each Party represents and warrants to each other Party:

  • it has full legal capacity and power to enter into this Agreement, to perform its obligations under this Agreement to carry out the transactions contemplated by this Agreement, to own its property and assets and to carry on its business;

  • no Insolvency Event has occurred in respect of it;

  • this Agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and

  • the execution and performance by it of this Agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.

The SaaS Provider warrants that to the best of its knowledge the Services do not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the SaaS Services.

The SaaS Provider does not warrant that the Services will be error-free or will operate without interruption or that, except as set out in this Agreement, the Services will be performed in the manner intended by the Customer or the Services will meet the requirements of the Customer.

Commencement

The Term of this Agreement takes effect on and from the Effective Date and continues for the Initial Term, if specified, and any Renewal Term, or otherwise indefinitely, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.

Applicable to Initial Terms and any Renewal Term: At least 30 Business Days prior to the expiry of the current Contract Year, either Party may notify the other that it does not wish for the Term to be renewed and in such event, this Agreement will expire at the end of the then current Contract Year. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another 12-month period (Renewal Term).

Applicable to Initial Terms and any Renewal Term: If a Party wishes to vary any of the Terms of this Agreement, it must give at least 30 Business Days’ notice prior to the expiry of the current Contract Year to enable the Parties to meet to discuss any proposed variation.

Termination

Where there is no Initial Term or Renewal Term, Customer may terminate this Agreement by giving SaaS Provider at least 30 days prior written notice, such termination will take effect with at the expiry of the then-current billing cycle.

The Customer may terminate this Agreement by giving at least 30 Business Days’ notice to the SaaS Provider, or if the SaaS Provider is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the SaaS Provider has failed to remedy the breach within 30 Business Days’ of receipt of written notice from the Customer describing the breach and calling for it to be remedied.

The SaaS Provider may terminate this Agreement by giving at least 30 Business Days’ notice to the Customer if the Customer is in breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, the Customer has failed to remedy the breach within 30 Business Days of receipt of written notice from the SaaS Provider describing the breach and calling for it to be remedied.

The SaaS Provider may terminate this Agreement immediately by giving written notice to the Customer where:

  • the Customer undergoes a Change of Control to a competitor of the SaaS Provider as determined by the SaaS Provider;

  • an Insolvency Event occurs in relation to the Customer;

  • the Customer commits a breach of this Agreement not capable of remedy; or

  • breaches clause "Licence Restrictions" or clause "Prohibited Use".

The SaaS Provider may suspend overdue accounts without notice to the Customer. A CHF 300 reinstatement charge applies to reactivate any suspended account once full payment has been received.

In any case of early termination, no refund is due for a part or the entirety of remaining Fee.

Events Following Termination

Upon termination of this Agreement, the SaaS Provider will:

  • immediately stop performing the Services;

  • immediately stop placing orders for supplies or services required in connection with the performance of the Services; and

  • promptly return to the Customer or destroy all property, including Confidential Information, Intellectual Property and Data in its possession that belongs to the Customer.

Upon termination of this Agreement, the Customer will immediately:

  • cease and desist from any use of the Services;

  • return to the SaaS Provider all property, including Confidential Information and Intellectual Property, in its possession that belongs to the SaaS Provider;

  • pay the Fees for all Services completed

The expiry or termination of this Agreement for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of this Agreement.

This clause will survive the termination or expiry of this Agreement.

Notices

Any notices or other communications required or permitted hereunder shall be in writing and personally delivered at the principal business addresses designated at the beginning of this Agreement, or mailed by registered or certified mail, at the address set forth above, or to such other address or addresses as may be hereafter furnished by one party to the other party in compliance with the terms hereof, or sent using a fax machine or by e-mail addressed to a director.

Notwithstanding the foregoing, Loway may give notice of changes in Prices, Product descriptions, order procedures, delivery procedures and other routine events and procedures by way of electronic mail, printed materials or newsletter.

Force Majeure

Loway shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its control. Customer shall be required to accept any delayed shipment or delivery made within a reasonable time.

Disclaimer Of Warranties

EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE TO THE END USER IN THE APPLICABLE LOWAY END USER LICENSE AGREEMENT, LOWAY MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED. LOWAY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR THE MEDIA ON WHICH PRODUCTS ARE SUPPLIED. CUSTOMER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF LOWAY.

Limitation Of Liability

LOWAY’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE TOTAL FEES PAID BY BY THE CUSTOMER IN QUESTION WHICH GAVE RISE TO THE CLAIM, FOR A PERIOD OF SIX MONTHS PRIOR TO THE DATE ON WHICH ANY SUCH CLAIMS AROSE. IN NO EVENT WILL LOWAY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF LOWAY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

Governing Laws; Attorneys' Fees

This Agreement shall be governed by and construed and enforced in accordance with the laws of Canton Ticino and the Swiss Confederation. Venue for all disputes shall be Mendrisio, Ticino, Switzerland, and nowhere else. The parties agree that personal jurisdiction exists as to both of them in said location, and further agree not to contest such.

By execution and delivery of this Agreement, the parties submit to and accept with regard to any such action or proceeding the exclusive jurisdiction of such courts. If any legal action or proceeding is initiated, the prevailing party shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which such prevailing party may be entitled. THIS AGREEMENT WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS OR BY THE PROVISIONS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED.

Equitable Relief

CustomerCustomer acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or Loway intellectual property will result in irreparable harm to Loway for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Loway will be entitled to seek injunctive or other equitable relief, as appropriate, and Customer hereby waives the right to require Loway to post a bond. If Loway seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by Customer involving an unauthorized use of Confidential Information or Loway intellectual property, Customer agrees that it will not allege in any such proceeding that Loway’s remedy at law is adequate. If Loway seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will Loway be deemed to have made an election of remedies.

Previuos Agreements

This Agreement supersedes and replaces all previous oral or written agreements, memoranda, correspondence or other communications between the parties hereto relating to the subject matter hereof.

Subcontracting

The Parties agree the SaaS Provider may engage subcontractors to perform the Services on its behalf

General

Assignment

No Party may assign, transfer or otherwise deal with all or any of its rights or obligations under this Agreement without the prior written consent of the other Parties.

Further assurance

Each Party must promptly do all things and execute all further documents necessary to give full force and effect to this Agreement and their obligations under it. This subclause will survive the termination or expiry of this Agreement.

Relationship of Parties

This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties.

Nothing in this Agreement gives a Party authority to bind any other Party in any way.

Links to Third Parties

The Services may contain links to third-party web sites or services that are not owned or controlled by the SaaS Provider.

The SaaS Provider has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. The Customer further acknowledges and agree that the SaaS Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

Independent legal advice

Each Party acknowledges and agrees that it has had an opportunity to read this Agreement, it agrees to its terms and, prior to executing it, it has been provided with the opportunity to seek independent legal advice about its terms.

Severance

If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision must be read down as narrowly as necessary to allow it to be valid or enforceable.

If it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

Entire agreement

The Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

Amendment

This Agreement may only be amended by written document executed by all Parties.

Definitions and Interpretation

In this Agreement, unless the context otherwise requires:

Additional Costs means any additional costs, expenses, damages or losses suffered or incurred by the SaaS Provider.

Authorised User means the user(s) permitted to use the SaaS Services and the content, including Data, generated by, or the output of, the SaaS Services as a part of the Customer’s services to its customers.

Business Day means a day on which banks are open for general banking business in Canton Ticino, Switzerland), excluding Saturdays, Sundays and public holidays.

Business Hours means 9am to 5pm on a Business Day.

Change in Control occurs in respect of a Party if, after the Effective Date, a person acquires (directly or indirectly):

  • shares in that Party conferring alone or in aggregate 50% or more of the voting or economic interests in that Party on a fully diluted basis;

  • the power to control the appointment or dismissal of a majority of the directors of that Party; or

  • the capacity to control the financial and operating policies or management of that Party.

Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise.

Confidential Information includes information or documentation which:

  • is disclosed to the recipient in connection with this Agreement (whether before or after the Effective Date);

  • is prepared or produced under or in connection with this Agreement (whether before or after the Effective Date); or relates to:

  • the business, assets or affairs of a Party or any of its affiliates;

  • the business, assets or affairs of a company in a group of companies to which the Customer belongs, or any client of that company in the group; or

  • the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and whether it is disclosed to the recipient or received, acquired, overheard or learnt by the recipient in any way whatsoever.

Contract Year means a 12 month period commencing on: (i) the Effective Date; and (ii) each subsequent anniversary of the Effective Date, of this Agreement during the Term.

Customer Environment means the computing environment of the Customer including all hardware, software, information technology and telecommunications services and Systems.

Data means all of the information, documents and other data provided by the Customer or their Personnel to the SaaS Provider, any content uploaded by the Customer or Personnel to the SaaS Provider’s System, or otherwise accessed by the SaaS Provider in providing the Services.

Fee means the fee set out on the Site for the Customer account.

Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it: - would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and - results in a Party being unable to perform an obligation under this Agreement on time.

Initial Term means the initial term set out in the Customer account.

Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:

  • the Party is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;

  • an application or order is made for the winding up, bankruptcy or dissolution of the Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;

  • an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;

  • a controller is appointed in respect of any of the Party’s property;

  • the Party is deregistered or notice of its proposed deregistration is given to it;

  • a distress, attachment or execution is levied or becomes enforceable against the Party or any of its property;

  • the Party enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;

  • a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of the Party or its property;

  • a petition for the making of a sequestration order against the estate of the Party is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or the Party presents a petition against itself; or

  • anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Party.

Intellectual Property Rights means all present and future rights to:

  • copyright;

  • registered or unregistered designs, patents, trade marks;

  • trade, business, company or domain names;

  • know-how, inventions, processes, trade secrets;

  • circuit layouts, databases or source codes; and

  • any similar rights in any part of the world,

including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing. Liability means any expense, charge, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent. Page View means as any time Customer’s account loads a page (website) that has SaaS Services embedded in it. Party means a party to this Agreement from time to time, and Parties means all of them.

Payment Method is by credit card, Wire Transfers, or Bank Deposit.

Payment Terms means 15 days from the date of the invoice.

Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party.

Products means hardware or software.

Service Level means any service levels set out on the Site.

Services means the SaaS Services and Support Services, to be provided or licensed by the SaaS Provider to the Customer on the terms and conditions set out in this Agreement.

Site means the websites https://www.loway.ch and https://www.queuemetrics.com and https://www.queuemetrics-live.com

Software means the software used to provide the Services, and includes any instructions in hard copy or electronic form and any update, modification or release of any part of that software after this Agreement is entered into by the Parties.

Support Hours means:

  • the hours the SaaS Provider will provide the Support Services as set out on the Site; or

  • if such hours are not specified, Swiss Business Hours.

Support Services are set out on the Site.

System means a combination of Products or a combination of Products and services which are integrated and operate together, including a network.

Variation means a change to the SaaS Licence after the date of this Agreement.

Variation Fee means any variation to the Fee as a consequence of the Variation.