General Terms and Conditions

The T&Cs of Park-Local AG

General terms and conditions SaaS “Park-Local”

1. Scope of application and validity

1.1. These general terms and conditions (hereinafter referred to as T&Cs) shall apply to all business relationships between Park-Local AG and their clients. Other rules laid down in writing shall remain reserved. Such individual contracts, which may differ in nature and scope from these T&Cs, shall be concluded exclusively in writing.

1.2. These T&Cs shall apply unconditionally once a client uses one or more of Park-Local AG’s offerings. When booking a licence / licence extension, the client accepts these T&Cs.

2. Changes

2.1. As and when required, Park-Local AG may amend their T&Cs and may also expressly change the prices, nature and scope of their services / licence packages at their own discretion and at any time. Amended T&Cs shall come into effect the moment (date/time) they are published on Park-Local AG’s website.

2.2. Park-Local AG shall inform their clients electronically and/or on their website about changes to their T&Cs in a timely manner. The new T&Cs shall be regarded as accepted without reservation unless client objections are raised within ten days after publication.

3. Contract

3.1. Conclusion
The contractual relationship shall be established and commenced when a client logs in/registers for the services of Park-Local AG, and Park-Local AG electronically confirms their login/registration for the chosen SaaS service(s) (licence(s)).

3.2. Terms

3.2.1. “Fixed-term contracts”, in particular contracts that have just been concluded, shall be valid for a term of 365 days, starting with the date of registration, unless other agreements (laid down in writing) exist.

3.2.2. Unless the client requests its termination by written notice not later than 30 days prior to the expiry date, a “fixed-term contract” shall become a “permanent contract” and shall be extended by a further year.

3.3. Termination

3.3.1. A “permanent contract” can be terminated at the end of the contractual term. Notice of termination must be submitted in writing to Park-Local AG, not later than 30 days prior to the end date of the contract, on which the contract is to be terminated.

3.3.2. If Park-Local AG decides to discontinue a particular SaaS service (licence), they shall endeavour to communicate this information to affected clients as soon as possible. In this case, the client shall be entitled to cancel the contract regarding this service with immediate effect.

3.4. Cancellation

3.4.1. Park-Local AG’s right to immediately cancel the contract for cause shall remain unaffected. Cause for the immediate cancellation of a contract on the part of Park-Local AG includes scenarios in particular where the client has gone bankrupt or adjudication of bankruptcy in the absence of assets has ceased, if the client is in default with their payment obligations from the contractual relationship with Park-Local AG and has received a written reminder warning of a potential cancellation of the contract to no avail, if the client is in culpable breach of legal provisions when using the SaaS services of Park Local AG or infringes on the rights of third parties, or if the client uses the SaaS services of Park-Local AG as part of or with the intent to commit or encourage illegal acts or activities.

4. Services

4.1. Subject of the service
Park-Local AG provides their clients with a “software as a service” solution (“SaaS” for short) against payment of a licence fee for the agreed term of the contract; this is available via the Internet (Cloud solution) and can be used on your PC (web application) or your smartphone (app for iOS or Android) for a fee.

4.2. Rights of use for the service

4.2.1. Upon payment of the licence fee, the clients of Park-Local receive the simple, personal, non-exclusive and non-transferable right to use the SaaS solution provided by Park-Local AG for the term of the contract as intended.

4.2.2. The scope of the rights of use – namely regarding the number of locations and parking spaces – shall be determined by the respective licence model.

4.2.3. Clients may not copy or modify the software, and under no circumstances (even temporarily) are they permitted to store it on any data carriers (except for main memory of equipment used for intended purpose) or install it on any systems.

4.2.4. Clients may never provide third parties with the SaaS services supplied by Park-Local AG as part of their respective contract, regardless of whether this is done for payment or for free.

4.3. Scope of the service

4.3.1. The scope of the SaaS solutions (licences) and the corresponding prices are always published on Park-Local AG’s website in their current form.

4.4. Up-to-date nature of service and description of SaaS solutions (licences)

4.4.1. Park-Local AG endeavours to give you a service which is always current and provided under the best of conditions. They may therefore implement regular changes (e.g. updates/upgrades/enhancements) that are passed on to their clients.

4.4.2. The range of functions currently valid for a specific SaaS solution (licence) and the associated costs can be found in the service description located on Park-Local AG’s website.

5. Fees and terms of payment

5.1. The client shall pay Park-Local AG a fee in order to use the SaaS solution (licence) that they provide.

5.2. Park-Local AG shall invoice the client for this.

5.3. The amount invoiced shall be determined by the type of SaaS solution (licence) chosen by the client and by the price at the time the contract was concluded.

5.4. The price agreed at the time of concluding the contract shall be valid for the contract term of 12 months.

5.5. Park-Local AG can change their prices, e.g. because the scope of services has changed or for other, business-related reasons. If the client does not want to continue the contract at the changed rates after the term expires, they are entitled to request an extraordinary termination in writing, giving 14 days’ notice to the date on which the change is to take effect. The price that applied before the termination shall be charged for the notice period.

5.6. If a “fixed-term contract” becomes a “permanent contract” or if a new contract is concluded, Park-Local AG can charge the price that was valid at the start of the extended or new contract term for the service in question. If the price for an extended contract term increases by more than 5% compared with the price previously charged, the client can cancel the contractual relationship within 14 days. The price that applied before the termination shall be charged for the notice period.

5.7. If a client is in default of payment, they shall receive a reminder by mail. If the client fails to make the payment within the deadline specified in the reminder, Park Local AG may block their account until they have been paid. If there is still no sign of payment beyond the reminder period, the contract can be cancelled without notice. In such cases, Park-Local AG may explicitly pursue claims for damages.

5.8. If Park-Local AG discontinues a service, they shall reimburse the client for any fees already paid on a pro rata temporis basis.

5.9. Fees for special cost-based services shall be charged before they are used for the first time.

5.10. Swiss francs are used for invoicing and all payments.

6. Warranty and liability

6.1. Park-Local AG provides warranty for the operational capability and availability of their Cloud-based services in accordance with the provisions contained in these T&Cs.

6.2. Where possible, Park-Local AG aims to provide their services seven days a week, 24 hours a day trouble-free and without disruption.

6.3. Park-Local AG strives to ensure that the systems they use are always at state-of-the-art levels, for their own security and that of their clients.

6.4. Park-Local AG endeavours to adhere to the rules of data protection and data security in their sphere of influence. This also applies to their employees and freelancers.

6.5. In the event that issues arise with access to the agreed services, clients shall be entitled to a free-of-charge consultation.

6.6. Functional reliability and availability of the SaaS service

6.6.1. Park-Local AG continuously checks that their services are functioning properly via monitoring and ensures that the corresponding software is trouble-free in accordance with what is technically possible. Software shall be deemed to be not working correctly if it does not fulfil the functions in full or in part according to the current service description, or if it is not functioning properly in another way, meaning that the client’s use of the service is severely restricted or not at all possible.

6.6.2. Where possible, Park-Local AG shall carry out maintenance work on systems and make adjustments to services (e.g. updates/upgrades/enhancements), including all measures used to monitor functional reliability or to correct any errors/problems that have been detected, while at the same time ensuring that temporary interruptions or impairments are kept to a minimum.

6.6.3. For major work on systems that can be scheduled, Park-Local AG shall inform their clients of any upcoming interruptions in service in advance.

6.6.4. In the event of unforeseeable operational disruptions, which severely impact or in fact prevent Park-Local AG’s services from being used, clients shall be informed promptly, preferably as soon as Park-Local AG becomes aware of the issue.

6.6.5. Operational disruptions are remedied as quickly as possible.

6.6.6. There is no legal right to 24/7, 100% availability of the SaaS services.

6.7. Data hosting

6.7.1. Park-Local AG saves the data provided by clients, required for the smooth operation of services, and ensures that this client data can be retrieved via the Internet/Cloud as far as is technically possible.

6.7.2. The client may not make this storage space available for use to third parties partially or fully, for payment or without payment.

6.7.3. As far as is technically possible, Park-Local AG uses their own discretion in taking the necessary precautions to ensure that client data is protected against loss and unauthorised access by third parties (e.g. through regular backups, virus scans, firewalls).

6.7.4. The client shall undertake not to save any content on the storage space, the allocation, publication and use of which violates the law or agreements with third parties.

6.7.5. The client has, in any event, the sole right to the data records introduced by them into the system. They may, at any time during the contractual term of the licence, request that this data be returned. Data shall be returned against appropriate compensation and at Park-Local AG’s discretion using data carriers or via electronic transmission.

6.7.6. After a contract has been terminated, Park-Local AG shall save the client data up until the licence’s expiry date plus an additional 30 days. Only during this period can the client request that their data be returned. The client data still stored in Park-Local AG’s systems shall be irrevocably deleted 30 days after the licence expires. Following this, the client shall lose any right to have their data returned accordingly.

6.8. Liability and limitations of liability

6.8.1. The liability of Park-Local AG shall be limited to the damages caused by intentional breaches of the contract or gross and moderate negligence on the part of the company or their employees. Any disruptions or defects must be communicated to Park-Local AG by the client immediately once they become aware of such issues to ensure that these problems can be fixed as quickly as possible.

6.8.2. In particular, Park-Local AG shall assume no liability for disruptions or defects that occur for reasons outside of their control. This applies especially to security defects and operational breakdowns of third-party companies that they work with or are dependent on (with regard to the function of their services), as well as to defects, damage or disruptions caused by force majeure, extreme environmental influences, interference by clients or disruptions by third parties, e.g. malware attacks which cannot be prevented despite the necessary, current security precautions.

6.8.3. Park-Local AG is expressly not liable for the negative effects that other programmes may have on the computers of the client while using or accessing the Cloud.

6.8.4. Clients are aware that, despite the safest methods of software development and maintenance, errors can slip in, meaning that the provider – in this case Park-Local AG – cannot guarantee that all of their desired objectives will always be achieved.

6.8.5. Park-Local AG expressly draws their clients’ attention to the fact that, due to the current state of technology, data protection and data security in open networks like the Internet cannot be guaranteed for data transmission.

6.8.6. Park-Local AG shall inform clients on their website about privacy-related and other risks, and security measures that they have to observe.

6.8.7. Park-Local AG shall assume no liability for damages caused to the client by the content of the data stored by them on the Cloud or by the transfer of the information in question to the Internet or Intranet.

6.8.8. Park-Local AG shall not assume any liability if, while using the Cloud, a client finds themselves to be in serious breach of data protection and confidentiality obligations in respect of third parties or third-party companies. The clients shall not be relieved of personal responsibility by swapping out data and processes.

6.8.9. In the context of the legal provisions, Park-Local AG shall exclude all liability (including for negligence) towards the client (or any third party), in particular for the fulfilment of their contractual or non-contractual obligations, as well as for loss of data and loss of profits. This limitation of liability shall also apply to damages that result directly or indirectly from using Park-Local AG’s software.

6.8.10. In all cases, irrespective of the liability basis, the liability of either contracting party shall be limited to the amount of the licensing fees for the year (12 months) before the damage arose.

7. Communication

7.1. All messages from the client must be communicated in writing to the address specified on the home page of the provider, unless stipulated otherwise in these T&Cs or another form (e.g. registered mail) is required by law. Sending messages via fax or email satisfies the written form requirement.

7.2. Park-Local AG prefers to communicate with their clients by email to the address specified when they register. Such Park-Local AG messages to clients are regarded as messages sent in writing in any case.

7.3. Both contracting partners shall endeavour to communicate any address changes, in particular change of email address, to each other without delay.

7.4. Messages sent by one of the contracting parties to the email or postal address last specified in writing by the respective other contracting party shall be regarded as legally received.

7.5. Park-Local AG exchanges data via electronic communication means (email, Internet, Cloud etc.) with their clients. In this context, they explicitly point out that email messages sent without encryption may be read, modified, suppressed, delayed and senders may be falsified by unauthorised parties. Furthermore, third parties monitor data traffic on the Internet and may uncover usernames, passwords, addresses etc. accordingly. Park-Local AG has no influence on this matter and expressly rejects all liability in this regard.

8. Support

8.1. Park-Local AG shall support clients after they open their account (conclusion of contract) with any technical questions or issues relating to installation and application during the term of the contract.

8.2. Clients do not have to pay for the effort involved in correcting faults for which Park-Local AG is responsible or for the associated consulting.

8.3. They can find information on Park-Local AG’s website about how they should respond in the event of faults and how and where they can receive support. Special escalation agreements can be concluded with the client if desired.

8.4. Clients shall be charged on an hourly rate for services and consulting not included in the contract.

8.5. Queries (email, over the phone or via the website) submitted by clients shall be received, processed and answered during the business hours published on Park-Local AG’s website and according to the contractually agreed times within the service scope of the respective chosen SaaS solution (licence).

9. Client obligations

9.1. Clients shall purchase the equipment, at their own expense, that they themselves require to operate the SaaS solution of Park-Local AG (hardware, software).

9.2. The client shall endeavour to specify data essential for the execution of the contract and for the performance of the service accurately and in full, and to communicate any changes without delay. This applies in particular to the address data and email address. Clients shall communicate any address changes and other necessary information to Park-Local AG immediately.

9.3. Clients themselves are responsible for entering and maintaining data and information required in order to use the SaaS services, without prejudice to the obligation of the provider regarding data safeguarding.

9.4. The client shall endeavour to safeguard their own system in such a way that no risk to others can be posed from it. In particular, the client’s system – in terms of security, integrity and availability of infrastructure used by Park Local AG to provide their services – may not be impaired or damaged. If Park-Local AG suspects an issue in this regard, they may block their services in part or in full. The client shall be informed accordingly and may be allowed to access the services again at the earliest once they have resolved the threats/issues with their system.

9.5. The client is responsible for ensuring that the address names they choose, e.g. domain, email addresses etc. do not infringe upon third-party rights.

9.6. The client shall undertake to generate and use secure passwords, to keep these and all other access details safely, and in particular to change their password regularly (at least every 60 days).

9.7. The client must inform Park-Local AG immediately if they suspect or are sure that an unauthorised third party has (or could have) uncovered their password. In such an event, Park-Local AG will block access to the data of the affected client without delay and do so until changed passwords and access codes have been implemented. If the client fails to inform Park-Local AG about the loss or misuse of their passwords and/or other access details immediately, they shall assume full liability for the affected services and/or damages.

9.8. The client shall undertake to use the Cloud in a lawful manner and to observe the law that is currently applicable at all times.

9.9. The client is solely responsible for the data and information that they enter for the Park-Local AG services themselves.

9.10. Park-Local AG shall assume no liability for damages that occur because the client fails to fulfil the obligations specified in these T&Cs. By contrast, the client shall be liable towards Park-Local AG for all damages that result from a violation of their contractual obligations in accordance with these T&Cs or other unlawful actions.

9.11. Park-Local AG shall be entitled to block access to the Cloud immediately in particular if the client jeopardises its security through improper use or criminal activities, if the client accesses the data of other users without authorisation, or if Park Local AG becomes aware of criminal activities conducted by the client. Moreover, in the latter case, Park-Local AG shall be entitled to inform the responsible authorities if need be.

9.12. The client shall undertake to prevent unauthorised third parties from accessing the services of Park Local AG, to respect copyright law, and in particular to ensure that they do not pass on access data.

9.13. The client shall undertake to check their data for viruses and other harmful components before entry, and to use protection programmes according to the latest technology in this regard.

9.14. The client shall undertake to release Park-Local AG from all third-party claims attributable to data entered/stored by the client. They shall also endeavour to reimburse Park-Local AG for all costs resulting from potential legal breaches.

10. Confidentiality and data protection

10.1. Generally speaking, the contracting parties shall endeavour to treat as confidential all information that is not generally known or generally accessible, or required to properly meet the contractual obligations, especially information relating to expertise and programming.

10.2. This obligation to maintain confidentiality starts before the contract is concluded and extends beyond the term of the contract.

10.3. Park-Local AG reserves the right to publicly mention clients as a reference. If a client is not in favour of this, they can submit their objection in writing.

10.4. Park-Local AG saves and evaluates user data for operational purposes within the scope of the applicable statutory provisions. The client expressly declares their consent to this.

11. Relations with third parties

11.1. Park-Local AG fulfils all of their rights and obligations from this contract themselves, and does not pass these on to third parties. This excludes services that Park-Local AG receives from third parties out of necessity in order to provide their services. In the event that individual services need to be provided by third parties, Park-Local AG shall do their utmost to select a provider that is subject to Swiss or EU data protection law.

12. Copyright and intellectual property rights

12.1. All intellectual property rights regarding Park-Local’s services, software, website, and documentation shall remain the property of Park-Local AG. In particular, Park-Local AG has and retains all copyright and rights of use to the software they develop.

13. Closing provisions

13.1. Swiss law applies to this contract, excluding the regulations of private international law and the uniform UN sales law (CiSG).

13.2. Place of jurisdiction is the registered office of Park Local AG.

13.3. If a clause of these T&Cs proves to be invalid or unenforceable, the validity and enforceability of the remaining clauses shall not be affected. Where possible, the invalid or unenforceable clause shall be replaced by an equivalent, valid and enforceable clause that comes closest to fulfilling the purpose of its predecessor. The same shall apply to any loopholes found in these T&Cs.

 

Effretikon, September 2017