Terms of Service
These ToS govern the relationship between Phoenix Systems and the User regarding the access to and use of the Portal, including the purchase of services from Phoenix Systems via the Portal.
Please carefully read these ToS.
BY CLICKING THE “REGISTER”-BUTTON, CREATING AN ACCOUNT ON THE PORTAL AND/OR USING THE PORTAL, IN WHOLE OR IN PART, THE USER ACKNOWLEDGES HAVING READ, UNDERSTOOD AND ACCEPTED THESE TOS AND AGREES TO BE BOUND BY ITS TERMS, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO RESTRICTIONS OF USE, DISCLAIMER OF WARRANTY, EXCLUSION OF LIABILITY, CHOICE OF LAW AND CHOICE OF FORUM.
If a person enters into the Agreement on behalf of another person, such person represents and warrants that he/she/it has full authority to bind that other person to the Agreement.
1. Definitions
Unless defined otherwise herein, capitalized terms herein shall have the meaning ascribed to them in the GT&C.
"Account" means a User account on the Platform.
"Agreement" has the meaning set out in the GT&C.
"Confidential Information" means any proprietary and/or non-public knowledge, information or materials, including any intellectual property disclosed by the disclosing Party to the receiving Party. Knowledge, information and materials will be considered Confidential Information regardless of the form or manner of disclosure and whether or not marked as "confidential" or with words of similar import. Confidential Information shall also be deemed to include any information generated by a Party using Confidential Information. For the avoidance of doubt, Confidential Information displayed on the Portal that are not generally accessible, such as when access thereto requires to register/log in the Portal shall not be deemed in the public domain.
"Customer" has the meaning set out in the GT&C.
"DPA" means the data processing agreement available at https://kvant.cloud/en/terms/data-processing-agreement/
"GT&C" means the general terms and conditions available at https://kvant.cloud/en/terms/general-terms-and-conditions/
"Party" means either Phoenix Systems or the User individually.
"Parties" means Phoenix Systems and the User collectively.
"Phoenix Systems" means Phoenix Systems AG, Hardturmstrasse 103, 8005 Zürich, Switzerland.
"Portal" means Phoenix Systems website subscription portal available at https://console.kvant.cloud/
"Privacy Policy" means Phoenix Systems privacy policy available at https://kvant.cloud/en/privacy-policy/
"Order Form"means the order form or reseller order form (as applicable) for Services.
"Purpose" has the meaning set out in Section 2.
"Remuneration" means the fees and other costs as set out in the Order Form to be paid by the Customer in consideration for the Services.
"Services" means the services purchased, directly or indirectly via a reseller, by, or on behalf of, the Customer as set out in the Order Form and further described in the contractual documentation mentioned in the GT&C.
"SLA" means the service level agreement available at https://kvant.cloud/en/terms/service-level-agreement/
"SOW" means the statement of work attached to the Order Form, if any.
"Special Terms" means special terms governing certain services to be provided as part of the Services.
"Start Date" means the start date set out in the Order Form.
"ToS" means these terms of service.
"User" means the person of which the user of the Portal is a director, officer, manager, employee, agent and/or representative and the user of the Portal himself/herself.
"Vendor" means a third party providing services, products or other offerings to be provided as part of the Services.
"Vendor Products" means any services, products or other offerings to be provided by a Vendor to be provided as part of the Services.
"Vendor Terms" means third-party terms governing certain services, products or other offerings to be provided as part of the Services, as required by the Vendor.
2. SCOPE
Phoenix Systems makes the Portal available to the User in accordance with these ToS for the purpose of (i) accessing the Portal and (ii) using the Portal for purchasing services offered therein from Phoenix Systems and, as applicable, other options of the Portal purposely made available by Phoenix Systems for use by the User (the "Purpose").
The User shall use the Portal solely when registered on the User's personal Account for the Purpose, in accordance with these ToS and all applicable laws and regulations.
3. USER ACCOUNT AND PASSWORD SECURITY
The access and use of the Portal are subject to the discretionary approval of Phoenix Systems and require the creation of an Account by completing the Portal registration process. The User represents and warrants that any information provided for the purpose of creating the Account and/or accessing or using the Portal is true, complete, accurate and kept up to date by the User.
The User is solely responsible for the security and administration of the User's Account and the related passwords, as well as any use thereof, including any unauthorized use. The log-in data, including the passwords of the User's Account, is to be kept secret by the Customer at all times, as well as protected from unauthorized access and disclosure. The User shall use strong passwords and change them regularly. The User is encouraged to use multi-factor authentication if provided by Phoenix Systems. In the event that Phoenix Systems provide the User with a password, the User shall immediately change said password to password known only to the User.
In the event that the User becomes aware of a change in the information provided for the purpose of creating the Account and/or accessing or using the Portal and/or an unauthorized access to the User's Account and/or disclosure of the related passwords, the User shall immediately notify Phoenix Systems in writing.
4. PURCHASE OF SERVICES
The Portal enables the User to purchase Services from Phoenix Systems by submitting an Order Form by clicking the "Buy Subscription"-button.
As applicable, the provision of the Services to the User by Phoenix Systems will be exclusively governed by the following documents and annexes, which together form the Agreement between the Parties, as further detailed in the GT&C:
- the Order Form;
- the SOW (if any);
- the GT&C;
- the SLA;
- the DPA; and
- the Special Terms and/or Vendor Terms (as applicable).
Without prejudice to the User's obligations and Phoenix Systems' rights under the Agreement, Phoenix Systems shall have no obligation towards the User until Phoenix Systems has confirmed the order submitted by the User, via the Portal, to the User by electronic means.
The display of Services on the Portal for purchase is an invitation by Phoenix Systems to the User to submit an offer (invitatio ad offerendum) and Phoenix Systems shall have no obligation to enter into any agreement with the User in connection thereto.
5. REMUNERATION AND INVOICING
5.1 Remuneration
Phoenix System shall be entitled to a monetary compensation for any services it provides to the User, except for the access and/or use of the Portal which shall be free of charge. The right to such compensation is irrespective of whether the User has signed or submitted an Order Form.
In consideration for the Services supplied by Phoenix System to the Customer, the Customer shall pay the Remuneration. The Remuneration shall be paid upfront. The fees set out therein are based on Phoenix System's current prices at the Start Date. In the event that the amount of the fees and/or other costs are amended in accordance with this Section 5, the Remuneration to be paid under the Agreement shall be computed in accordance with the amended prices and/or costs.
Unless explicitly stipulated otherwise in the Order Form, the Remuneration and any amount due under the Agreement are exclusive of any export, transit and import clearance formalities, and related applicable duties, taxes and other costs, as well as value-added-taxes, stamp duties, levies, fees or equivalent taxes levied on account of sales in or upon exportation from Switzerland, which shall be paid additionally by the Customer.
Phoenix System is entitled to unilaterally adjust the prices set out in an Order Form at the beginning of a new calendar year with four months' notice. If (i) the price increase is larger than the changes in the Swiss consumer price index (reference: December 2020 = 100); (ii) the Customer does not agree with the price adjustment; and (iii) Phoenix System insists on the price adjustment larger than the changes in the Swiss consumer price index, the Customer has the right to terminate the Agreement prematurely at the time of the price adjustment, whereby the termination must be made in writing and with a notice period of three months for the end of a calendar month.
Furthermore, Phoenix System reserves the right to adjust the energy prices at any time if the electricity market prices changes.
5.2 Invoicing
All invoices are to be paid by the Customer net within 20 calendar days of the invoice date to the account specified by Phoenix System.
Invoices that are not objected to in writing within the payment period shall be deemed accepted.
Phoenix System is entitled to charge the statutory interest on arrears on all outstanding payments after expiry of the payment deadline without a reminder.
6. INTELLECTUAL PROPERTY
All intellectual property rights to the Portal and/or the services provided by Phoenix Systems via the Portal, as well as pertaining to any modifications, enhancements, improvements, updates, upgrades, and derivative works thereof (irrespective of whether they originate or have been learned or derived from the use of the Portal and/or said services or feedback, information or suggestion of the User) are the exclusive property of Phoenix Systems and/or the joint owners thereof or its licensors, as applicable.
The User shall remain the owner of the data and any intellectual property rights thereon uploaded/input in and/or used in connection with the Portal. The User hereby grants to Phoenix Systems a worldwide non-exclusive, non-transferable, sublicensable (including, without limitation, to any subcontractor and/or subprocessor of Phoenix Systems) and non-remunerated right to use such User's data for the Purpose.
The User represents and warrants to Phoenix Systems that the upload/input and/or use of data in connection with the Portal by the User does not breach any third party rights. The User shall indemnify and hold harmless Phoenix Systems and any of its affiliates, and its and their respective representatives, against any claims arising out of or in connection with any such breach. If any such data could be subject to governmental regulation or may require security measures beyond those specified by Phoenix Systems, as applicable, the User shall not upload/input such data for processing in the Portal or provide or allow access to Phoenix Systems (or its subcontractors or subprocessors) unless specifically permitted by Phoenix Systems in writing.
7. WARRANTY AND LIABILITY
7.1 Disclaimer of warranty
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PHOENIX SYSTEMS (AND ITS THIRD PARTY SUPPLIERS, INCLUDING THEIR AFFILIATES, CONTRACTORS AND SUPPLIERS) PROVIDES THE PORTAL "AS IS" WITHOUT REPRESENTATION AND WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, SECURITY, ABSENCE OF DEFECTS OR ERRORS, NONINFRINGEMENT, COMPATIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF OR IN RELATION TO THE USE OF THE PORTAL REMAINS WITH THE USER.
Phoenix Systems neither guarantees that the Portal is error-free or malware-free nor that it can be used without interruption. Phoenix Systems is entitled to suspend access to the Portal at any time, without any liability towards the User.
7.2 Exclusion of liability
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PHOENIX SYSTEMS OR ITS REPRESENTATIVES, THIRD PARTY SUPPLIERS, INCLUDING THEIR AFFILIATES, CONTRACTORS AND SUPPLIERS, AND THEIR RESPECTIVE REPRESENTATIVES, SHALL NOT BE LIABLE TO THE USER AND ANY OF ITS REPRESENTATIVES OR THIRD PARTY FOR ANY CLAIMS AND DAMAGES, IN PARTICULAR CLAIMS FOR COMPENSATION FOR INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST USE, UNREALIZED SAVINGS, LOSS OF EARNINGS, REVENUES, BUSINESS OR PRODUCTION, DAMAGE TO GOODWILL OR REPUTATION, AS WELL AS LOSS OR CORRUPTION OF DATA), AS WELL AS ANY DAMAGES ARISING OUT OR IN CONNECTION WITH A FORCE MAJEURE EVENT, EVEN IF PHOENIX SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Phoenix Systems (and its third party suppliers, including their affiliates, contractors and suppliers, and its and their respective representatives) is in no case liable for illegal content of the data stored with Phoenix Systems or the improper use of the Portal (including, without limitation, any use in breach of these ToS and/or any applicable law) by the User. The User shall indemnify and hold harmless Phoenix Systems and any of its affiliates as well as its third party suppliers (including their affiliates, contractors and suppliers), and its and their respective representatives, against any claims arising out of or in connection with any such improper use.
This exclusion of liability applies regardless of the legal basis of the liability (i.e., e.g., contract, tort, legal obligation). Any further mandatory legal liability, e.g. for fraud, gross negligence or unlawful intent, shall remain reserved.
8. CONFIDENTIALITY
8.1 Principle
The Parties may exchange Confidential Information. The receiving Party undertakes, unless specifically provided otherwise by the Agreement (i) to keep confidential at any time and not to disclose, in whole or in part, to any third party any Confidential Information of the disclosing Party; (ii) not to publish, disclose or divulge any Confidential Information of the disclosing Party; (iii) not to use any Confidential Information of the disclosing Party for any purpose other than fulfilling the Agreement; (iv) to take reasonable and appropriate measures to safeguard any Confidential Information of the disclosing Party from theft, loss or disclosure to others; and (v) not to copy or reverse engineer, reverse compile, nor attempt to derive the composition or underlying code or other information of any Confidential Information of the disclosing Party, including after the expiry or termination of the Agreement for whatever reason and indefinitely.
The receiving Party agrees that a breach of this Section 8 may cause the disclosing Party irreparable damage impossible of calculation and that, in addition to all other remedies, legal or contractual, the disclosing Party shall be entitled to obtain preliminary or permanent injunctions, or such other form of equitable relief as a court of competent jurisdiction might impose, to enjoin a breach or threatened breach of the Agreement.
8.2 Exceptions
The aforementioned obligations shall not apply to Confidential Information which the disclosing Party can demonstrate by documentary evidence: (i) was in the public domain at the time of its receipt by the receiving Party; (ii) was at the time of its receipt already in the receiving Party's possession, or known to the receiving Party, without restriction on use or disclosure; (iii) becomes part of the public domain after its receipt by the receiving Party, but not through a breach of the Agreement by the receiving Party and/or its representatives; (iv) is rightfully given to the receiving Party by a third party authorized to make such disclosure and on a non-confidential basis; (v) was independently developed by the receiving Party without reliance upon Confidential Information of the disclosing Party ; and/or (vi) is approved for release and/or use by prior written consent from the disclosing Party, solely to the extent of such approval.
The receiving Party shall have the right to disclose to the relevant authority any Confidential Information of the receiving Party which is required by law, a competent court or a governmental entity to be disclosed, provided however that receiving Party shall advise the disclosing Party in advance of such disclosure to the extent practicable and permissible by such law and afford the disclosing Party, where reasonably possible, to counter such disclosure and take action to obtain a protective order or other appropriate measures precluding or limiting the disclosure of said Confidential Information. The receiving Party shall exercise reasonable efforts to ensure that any Confidential Information so disclosed will be accorded confidential treatment. The Confidential Information that is disclosed pursuant to this paragraph shall remain Confidential Information of the disclosing Party for all other purposes.
Confidential Information shall always remain the property of the disclosing Party, and the receiving Party will not obtain any rights, express or implied, in such Confidential Information.
8.3 Return or destruction
Upon the end or termination of the contractual relationship between the Parties for whatever reason, or at the earlier request of the disclosing Party, the receiving Party shall, at the election of the disclosing Party, return or destroy all originals and copies of the Confidential Information of the disclosing Party, or, in case of Confidential Information of the disclosing Party stored in electronic, magnetic or digital media, shall erase or render unreadable all materials furnished (including working papers containing any such Confidential Information or extracts therefrom) which contain such Confidential Information.
9. DATA PROTECTION
The Parties are aware that access to and use of the Portal may lead to processing of personal data about the Parties, their employees, subcontractors, etc. In such cases, the Party receiving personal data shall ensure data protection in accordance with the applicable law through appropriate organizational, technical and contractual precautions.
Each Party shall comply with all applicable data protection laws in the performance of the Agreement, including, without limitation, as applicable, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as amended from time to time and the Federal Act on Data Protection (FADP) of 25 September 2020.
The Privacy Policy applies.
10. TERM AND TERMINATION
10.1 Term
The contractual relationship between the Parties governed by these ToS is effective as of the first the earlier of (i) the User clicking the "I accept"-button [Note: Phoenix to adapt the wording to the wording used on the website.], (ii) the User creating an Account on the Portal and (iii) the first use of the Portal by the User and shall remain in force as long as the User has an Account on the Portal and/or uses the Portal.
10.2 Termination
Phoenix Systems may terminate the contractual relationship between the Parties governed by these ToS at any time, without prior notice, for whatever reason, and without liability toward the User.
Phoenix Systems may restrict or suspend the User's access to and/or use of the Portal at any time, without prior notice, for whatever reason, and without liability toward the User.
10.3 Consequences of expiry or termination
In case of termination of the contractual relationship between the Parties governed by these ToS the User shall cease using the Portal.
10.4 Survival
The expiry or termination of the contractual relationship between the Parties governed by these ToS for whatever reason will not relieve the Parties of any obligation accrued prior to such expiry or termination. Sections 4, 6, 7, 8, 9, 10, 11 and 12, as well as any Section which by its nature shall survive the expiry or termination of the Agreement, shall remain in full force and effect after such expiry or termination for whatever reason.
11 MISCELLANEOUS
11.1 Entire agreement
These ToS conclusively regulate the relations between the Parties with regard to the subject matter of these ToS and replace the negotiations and correspondence conducted prior to the conclusion of the Agreement. For the avoidance of doubt, these ToS are without prejudice to the Agreement and the Privacy Policy.
11.2 Amendment
Phoenix Systems reserves the right to amend these ToS. In such case, and provided that Phoenix Systems has informed the User of such an amendment and Phoenix Systems has not received a written notice of objection within 30 calendar days of informing the User, the amended ToS shall be deemed approved by the User without reservation and apply between the Parties. In the event that the User has objected to the amendment, the contractual relationship governed by these ToS between the Parties already entered by the Parties at the date the ToS are amended shall remain subject to the version of the ToS that was in force at the date the relevant contractual relationship was entered into. Unless explicitly stipulated otherwise, all access to and use of the Portal by the User after said amendment shall be subject to the latest version of the ToS.
11.3 Communications
Notices intended for the exercise of rights and obligations under these ToS shall be given in writing, (i) if given by Phoenix Systems, by registered letter, special courier, email and/or the communication system set out on the Portal, as applicable, and (ii) if given by the User, by registered letter or by email followed by a confirmation by registered letter or special courier, to the address of Phoenix Systems set out in Section 1.
11.3 Severability
Should individual provisions or parts of these ToS prove to be void or ineffective, this shall not affect the validity of the remainder of these ToS. In such a case, the Parties shall adapt these ToS in such a way that the purpose intended by the void or ineffective part is achieved as far as possible.
11.4 Assignment and transfer
These ToS may be assigned or transferred to third parties only with the prior written consent of the other Party. In the event that the User assign or transfer these ToS, it shall be jointly and severally liable with the assignee or transferee for any obligation of the User under these ToS.
11.5 No waiver
The failure of Phoenix Systems to enforce any of the provisions of these ToS or any rights with respect thereto shall in no way be considered as a waiver of such provisions or rights or in any way affect the validity of these ToS or excuse the User from any of its obligations under these ToS. The waiver of any breach of these ToS by the Phoenix Systems shall not operate to be construed as a waiver of any other prior or subsequent breach. No single or partial exercise of any right, power, privilege or remedy by Phoenix Systems shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
12. APPLICABLE LAW AND DISPUTE RESOLUTION
12.1 Applicable law
These ToS, as well as the access to and use of the Portal, shall be governed by the laws of Switzerland, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 and excluding its conflict of law provisions.
12.2 Dispute resolution
Both Parties undertake to strive in good faith for an amicable settlement in the event of any disagreement in connection with these ToS, the access to and/or use of the Portal.
12.3 Place of jurisdiction
If, despite the efforts of the Parties, no agreement is reached by amicable means, the ordinary judge at Phoenix System's registered office shall be exclusively competent to decide all disputes arising from or in connection with these ToS, the access to and/or use of the Portal, subject to the Phoenix System's right to sue the User at the latter's registered office or domicile.
13 CONTACT
In case of questions or other enquiries in connection with these ToS and/or the Portal, Phoenix Systems can be contacted at the postal address set out in Section 1 and/or at the following email address: contact@phoenix-systems.ch