1. General Terms and Conditions of Business for PROVATIS SA
The sites "provatis.com" and “app.provatis.com/provalert” have been developed and are operated by PROVATIS SA (registered with the Commercial Register of the Canton of Vaud, Switzerland). The "Provabox" and "Provalert" trademarks are the exclusive property of the provider (i.e. PROVATIS SA or PROVATIS).
The provider reserves the right to alter these terms and conditions at any time. The amended terms and conditions shall come into force upon being published on the website, for new orders of equipment and for new subscriptions for services. The changes won’t affect the terms and conditions applicable for the equipment already ordered and for the services the Buyer already have a yearly subscription. PROVATIS SA shall make its best effort to send the Buyer the amended terms and conditions by e-mail or point them out on the website.
The Buyer has the option to save or print these terms and conditions, being specified that both the backup and the printing of this document are his sole responsibility.
2. General conditions for sale
These general conditions express the entirety of the obligations of the parties. In this sense, the Buyer is deemed to accept without reservation all the provisions of these terms and conditions.
These terms and conditions are intended to define the rights and obligations of the parties in connection with the sale of equipment and services offered by PROVATIS to the Buyer.
Provabox is the equipment and Provalert is the Software as a Service (SaaS) provided in the field of transport via the medium of the Internet.
For the duration of this agreement, PROVATIS SA shall provide the Buyer with the respective current version of the “Provalert” software solution for use, in return of a fee, over the Internet. To this end, PROVATIS SA shall install the software on a server accessible to the Buyer via the Internet.
PROVATIS SA shall perpetually enhance the software and shall improve it by means of ongoing updates and upgrades. The respective current range of functions can be seen from the specification of services on the Provider’s website (provatis.com).
The equipment property shall pass to the buyer upon full payment. However, the risk shall pass upon delivery.
The minimum license duration shall cover the entire lifetime of the equipment (guaranteed for 1 year), subject to full payment in time and yearly renewal by the Buyer.
2.3 Contractual Documents
This contract is formed by the following contractual documents, presented in descending hierarchical order: signed/accepted order / offer with the details of the selected equipment and services, these general terms and conditions.
2.4 Entry into force / duration
These terms and conditions come into force upon purchase or at the date of receipt of the signed/accepted order/offer. The present general terms and conditions are concluded for the duration necessary for the supply of the equipment and services subscribed, as set out in the offers and/or orders and invoices, except for situations when a longer period is necessary, in accordance with these General Terms and Conditions of Business or law (e.g. the situations referred to in article 3.2. warranty coverage, art. 3.5. liability, art. 5 confidentiality and art. 6.3. personal data).
3. Warranty and Liability
PROVATIS SA, Av. de Grandson 48, 1400 Yverdon-les-Bains (VD). The relationship between the guarantor and the holder of a Provabox is via the following address: email@example.com.
3.2. Provabox warranty Coverage
PROVATIS SA certifies that the equipment is warranted against errors, malfunctions, defects in workmanship or materials when used under normal conditions for one (1) year from the date on which the equipment was delivered.
During the warranty period, the equipment will be repaired or replaced, at the choice of PROVATIS SA without costs of parts or labour. This warranty covers only the replacement of the equipment. If the equipment is repaired after the expiration of the warranty period, the warranty period for the repair will expire six (6) months from the date of repair.
3.3. Provabox warranty exclusions
The warranty does not cover normal wear and misuse, does not apply when the equipment has been opened or repaired by a person not authorized by PROVATIS SA and does not cover the repair or replacement of all or part of the material damage resulting from: improper use, presence of moisture or liquids, proximity or exposure to a heat source, accident, misuse, use not in accordance with instructions delivered with material, negligence or improper use., provided that PROVATIS has supplied to the buyer the instructions of use at delivery of the equipment. The warranty does not cover physical damage to the surface of the equipment.
3.4. Provalert warranty/liability
1. PROVATIS SA shall provide a warranty for the functionalities and readiness for operation of the SaaS services, in accordance with the provisions laid down in these General Terms and Conditions.
2. The Buyer undertakes to free and relieve PROVATIS SA from any claims made by third parties that are based on the data stored by it and reimburse PROVATIS SA any costs which may be incurred by to the latter due to any infringements of rights.
3. PROVATIS SA shall be entitled to immediately block the storage space if there is a substantiated reason to suspect that the stored data is illegitimate in nature and/or infringes any rights of third parties. A substantiated suspicion in regard to illegality and/or an infringement of rights shall in particular exist if courts, authorities and/or other third parties make PROVATIS SA aware of the latter. PROVATIS SA shall without delay inform the Buyer about the removal and the reason for it. The block is to be removed once the suspicion has been fully refuted.
4. Within the scope of the statutory provisions, PROVATIS SA hereby excludes any liability vis-‐à-‐vis the Buyer (or any third party), and the loss of data and lost profits (including negligence for the loss of profits). This disclaimer shall also apply to any loss that is incurred, either directly or indirectly, through the use of the “Provalert” software.
5. In all cases, irrespective of the basis for liability, the mutual liability of the contracting parties shall be limited to the amount of the access fees received in the last six months prior to the damage occurring.
3.5. Provalert impairment of availability
1. Any adaptations, amendments or additions to the contractual SaaS services, as well as any measures which serve to establish and rectify malfunctions, shall only lead to a temporary interruption or impairment of the availability if the latter is necessary for technical reasons.
2. The basic functions of the SaaS services are monitored regularly. The maintenance of the SaaS services shall essentially be carried out between 8 a.m. and 5 p.m., Monday to Friday. In the case of serious malfunctions –i.e. if it is no longer possible to use the SaaS services or use is considerably restricted – the maintenance shall be carried quickly of becoming aware of such malfunctions or being informed about them by the Buyer. PROVATIS SA shall inform the Buyer about the maintenance work in good time and carry it out as quickly as possible and respecting a 99.9 % availability of the service.
This warranty is the only warranty granted to you and replaces any other warranty or similar obligation that may appear on the advertising, documentation, website, packaging or other communications. If any part of this warranty is declared invalid or unenforceable, the other clauses of this warranty will nevertheless retain all their force and effect. Apart from the warranty and within the limits permitted by law, PROVATIS SA offers its solution Provabox & Provalert AS IS WITH ALL DEFAULTS and disclaims, without limitation, by this warranty: any other warranty or express condition, implied warranties (if any), obligations or conditions of quality, reliability or availability, accuracy or completeness of responses, results, absence of viruses and lack of support or other services, related information and content. This warranty does not affect any rights granted by applicable law in relation to the sale of consumer goods. This warranty is not transferable.
3.7. Liability (Provabox)
Neither PROVATIS SA nor its suppliers are liable, in accordance with the applicable legal provisions, for direct, indirect, incidental, non-incidental or consequential damages or losses (including, but not limited to, damages or losses related to the inability to use of equipment, access to data, loss of data, loss of sales or profits, interruption of work or occupation) that you or others may suffer, and arising from use or inability to use the Provabox solution, in cases where such damages or losses are not a consequence of an unsatisfactory/inappropriate quality, for the type of ordered equipment.
To initiate an action under warranty, you must contact PROVATIS SA during the coverage period by email at firstname.lastname@example.org to explain the nature of the malfunction. A Problem Identification Number [PIN] is mandatory for returning the equipment or other type of product according to the instructions you have received from PROVATIS SA.
3.8. Intellectual Property and copyright Indemnification.
PROVATIS SA shall indemnify, defend and hold Buyer harmless from all costs and expenses related to any suit, claim or proceeding brought against Buyer or its Buyers based on a claim that any article or equipment, or any part thereof constituting equipment or services furnished under these Terms and Conditions, the Orders or Offers, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party. Buyer shall notify PROVATIS SA promptly of any such suit, claim or proceeding and give PROVATIS SA authority, information, and assistance (at PROVATIS SA expense) for the defence of same, and PROVATIS SA shall pay all damages and costs awarded therein. Notwithstanding the foregoing, any settlement of such suit, claim or proceeding shall be subject to Buyer’s consent, such consent not to be unreasonably withheld. If use of said article, equipment, part, device or process is enjoined, PROVATIS SA shall, at its own expense and at its option, either procure for Buyer the right to continue using said article or equipment, part, process or device, or replace the same with a non-infringing equivalent.
4. Buyer’s obligations
4.1. Obligations on the part of the Buyer
1. The Buyer shall be obliged to prevent unauthorised access of the software by third parties, by taking appropriate precautions. To this end, the Buyer shall, if necessary, instruct its employees on adherence to copyright. The Buyer shall in particular instruct its employees not to make any duplicates of the software or pass on access data to third parties.
2. The Buyer shall be personally responsible for entering and maintaining its data and information required in order to use the SaaS services ‐notwithstanding the Provider’s obligation to back up data.
3. The Buyer shall be obliged to check its data and information for viruses or any other damaging components prior to entering it and run state of the art anti-‐virus software to this end.
4. When using the SaaS services for the first time the Buyer needs to generate a user ID and a password, which are necessary in order to make use of the SaaS services. The Buyer shall be obliged to keep the user ID and password secret, and not make them available to third parties.
5. The Buyer shall be required to inform PROVATIS SA without delay about any unauthorised use of the user ID or password, or any other interventions in the security. In such cases, PROVATIS SA shall, in consultation with the Buyer, change the Buyer’s user ID and password.
6. The Buyer shall be required to take any steps which are, according to the Provider’s best judgement, necessary for preserving or improving the security of the data, the software and the network connections. The user undertakes to change the password regularly, however at least every 60 (sixty) days.
7. The Buyer is responsible for its equipment being in perfect technical conditions, serviceable and compatible with the PROVATIS Deliverable as well as the proper power supply and the connection. This shall apply in particular to the serviceableness and compatibility of data processing devices and communication equipment of the Buyer.
8. The Buyer shall support PROVATIS in the performance and management of the contract and, where applicable, in the Cure (rectifications of defects or replacement) if necessary. This shall include, but not limited to, the permission and facilitation to access to the Buyer’s equipment or its premise if necessary or access to the Buyer’s systems in the event of remote maintenance. During any of these interventions, remote maintenance, supports etc.., the Buyer shall tolerate limited or even no access to the service. The Buyer must also tolerate interruptions if PROVATIS performs maintenance services or other technically required actions. PROVATIS shall use its best efforts to organise and schedule such interventions to minimize Buyer’s operation interruption. PROVATIS shall notify the Buyer in advance in a timely fashion of a necessary service or intervention.
5. Terms of delivery
The equipment is delivered to the address indicated by the buyer on the order form. The buyer agrees to check the condition of the equipment at the time of receipt. He will inform the supplier of the defects found within 2 working days of delivery, by email at support@PROVATIS.com.
5.1. Return and exchange
Equipment delivered will not be taken back, except for situations where the equipment are properly installed and do not function, have defects or errors causing an unsatisfactory use or do not correspond to the technical specifications or the purpose presented by the seller, or in other exceptional situations decided at the discretion of PROVATIS. PROVATIS will be the only judge to determine whether a situation is exceptional or not. In any case, return is done only within 15 working days after the receipt and the concerned equipment must be in the original packaging, with all accessories delivered and in the condition they were received. The purchase receipt must be submitted. Once the equipment received, PROVATIS will resend a new equipment for replacement.
5.2. Important points concerning the return of equipment
Get in touch with us by e-mail at: email@example.com within 7 days of receipt of the equipment; • We will confirm the registration of your return and send you a return number; • Always use the original packaging and the original protections to return the package; • Return items with all accessories; • Attach a copy of your invoice to your shipment; • Keep the original invoice for further clarification; • Send your parcel sufficiently stamped to the following address: PROVATIS SA, Av. de Grandson 48, CH-1400 Yverdon-les-Bains (VD).
The parties shall not (except as required by law) either during the continuance of their commitments or at any time thereafter:
a) divulge or communicate to any person or knowingly permit or enable any person to acquire any professional or trade secret or other confidential information concerning the business, finances, dealings, transactions or affairs of the other party or of any entity affiliated or associated with the latter or of any agent, client or Buyer of any such entity or any details thereof which may have come to their knowledge prior, during or in the course of supplying the goods and services (the “Confidential Information”); or
b) use or attempt to use any of the Confidential Information for their own use in any manner which may injure and/or cause loss or disadvantage either directly or indirectly the other party or any affiliated or associated entity or any of their respective businesses or may be likely to do so or for any purpose other than in the discharge of their duties hereunder.
During the continuance of their commitments, the parties shall use their best endeavours to prevent the unauthorized publication or disclosure of the Confidential Information or any part thereof.
All notes and memoranda of the Confidential Information which shall be acquired, received or made by the parties during the course of their commitments hereunder or prior to the date of supplying the goods and services shall remain the property of the party that initially granted the information. Such information shall be surrendered by the parties to someone duly authorized in that behalf, or at the termination of their commitments or at the request of the other contracting party, during the course of their commitments.
The parties acknowledge that it is in their best interests to insist on the strict confidentiality of any Confidential Information and hereto confirm that covenants herein contained are reasonable and necessary to protect their proprietary interest. The parties undertake to immediately inform the other contracting party of any actual, suspected or threatened unauthorized disclosure or use of the Confidential Information.
The parties acknowledge and agree that Confidential Information shall remain the property of the party that initially granted the information and that nothing disclosed during the subsistence of the business relationship or emanating therefrom shall be construed as granting to the other party any right, entitlement, license, patent, copyright, design license or any other intellectual property rights that may now or hereafter exist in connection to the Confidential Information or that evolved from such information and nothing in this Agreement shall be deemed to be a waiver, transfer or entitlement to any such property rights by the other party.
For the purpose of this paragraph, the confidential information will mean information marked as confidential or with the sign © for copyright.
The provisions of this clause shall survive for 5 years after the supply of goods and services.
Our system is based on users controlled by a so called “customer” defined by the buyer. Each individual user has only access to his own information and cannot see those of others. Each user/customer has an individual access code (login) protected by a password.
You have the right to access information about you.
We permit each user/”customer” to delete, rectify and export information that have been imported/created in Provalert.
Furthermore, all the data used are physically stored in a data-centre located in Switzerland, this data-centre offers PCI-DSS safety and is going to be GDPR ready by May 2018.
7.2. GDPR compliance
PROVATIS SA will be GDPR ready by end of May 2018. In this respect, PROVATIS shall display on its website the Policy on the processing of personal data and/or the amended General Terms and Conditions of Business for PROVATIS SA, in the sense that the types of personal data that are to be collected and processed shall be expressly indicated, together with the modality of processing purpose and period, as well as the right and obligations of the parties.
7.3 Personal Data
1. PROVATIS undertakes to safely collect and process all personal data provided by the Buyer by virtue of his commitment, in accordance with the laws in force concerning the protection of natural persons on the processing of personal data and the free movement of such data.
2. PROVATIS ensures a strict protection of personal data by protecting the confidentiality of personal data (i.e. any information on an identified or identifiable person, an identifiable person being a person that may be directly or indirectly identified as well as other types of personal data, as defined by the applicable law), made available by the Buyer, during the performance of his commitment.
3. PROVATIS undertakes to use the information solely for the purpose of providing the equipment and services. PROVATIS shall not use the information for any other purpose or disclose personal data to any third party, in any way, or shall not sell, publish or reproduce, in whole or in part, the personal data without the prior written consent of the Buyer.
4. PROVATIS shall not contact the employees of the Buyer, in any way and under any circumstances, without the prior written consent of the Buyer and in accordance with the instructions of the Buyer. In order to avoid any doubt, PROVATIS shall be authorised to use only the buyers responsible with this contract personal data for marketing, promotion and distribution purposes of any newsletter or other communications which PROVATIS may wish to distribute. This must be done upon receiving formal authorisation form the buyer.
5. PROVATIS agrees to take all necessary and appropriate measures for the purpose of keeping confidentiality on and protecting personal data, including: (i) granting access to all personal data received from the Buyer only to its Employees that need to know and that are informed and agree to keep them confidential, in accordance with the confidentiality obligations provided in this Contract; and (ii) not to use, disclose or allow access to such personal data to any other third party, except on the basis of a written consent received from the Buyer. PROVATIS confirms that the personal data is confidential and constitutes the property of the Buyer. No use of such personal data shall be permitted except in accordance with the provisions of this contract. PROVATIS shall not use, copy, alter, modify, disclose, distribute in any way, wholly or partially, the personal data in his or any other third party’s interest.
6. Where any of the incidents referred to in point 5 above occur, concerning personal data provided by the Buyer, PROVATIS shall forthwith notify the incident, it has been aware of, to the Buyer within a maximum of 24h hours of the occurrence of the incident, together with all necessary information. PROVATIS shall also take all the measures imposed in these situations by the legislation on the protection of individuals with regard to the processing of personal data and the free movement of such data and shall compensate the Buyer for any damage caused.
8. Intellectual property rights
Intellectual property rights in the services, the “Provalert” software, the website and the documentation concerning the services shall remain the property of PROVATIS SA.
9. Force majeure, no claims of Buyer in the event of interruption not related to PROVATIS performance
1. For as long and to the extent that the delivery of equipment and service by PROVATIS are hindered due to force majeure (e.g. legal strikes, or lockouts, interruptions or operations, lack of labour, energy and raw materials, acts or omissions of governments, all thought no fault of PROVATIS, obstacles of PROVATIS suppliers to perform beyond PROVATIS and the suppliers control), the mutual contractual performance obligations shall be suspended.
2. If the hindrance due to force majeure is not only temporary in nature, both parties to the contract are entitled to rescind the contract or terminate it with immediate effect with regard to the performance affected by such hindrance.
3. The beginning and the end of force majeure shall be communicated by the party affected thereby without delay to the other party.
10. Place of jurisdiction/choice of law
1. The parties hereby agree upon the application of the law of the Swiss Confederation in regard to any legal relationships arising from the contractual relationship, subject to exclusion of the provisions of international private law (IPR), as well as of the uniform United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Lausanne is agreed upon as the exclusive place of jurisdiction for any disputes which may arise within the scope of executing this contractual relationship.