These Terms and Conditions of Use (the T&C) apply to the contractual relationship between Constructive Sàrl (the Provider) and the entity commissioning the use of the Provider’s services (the Client) with regards to the grant of license to use the software as a service “Constructible” (the Software) or the Software services (the Services) available at https://www.constructible.net (the Website) or on a third-party application via an API.

The agreement concluded between the Provider and the Client (the License Agreement) and its content form an integral part of the T&C. The T&C and the License Agreement and other conditions and contracts referred to in these T&C form the Agreement.

By concluding a License Agreement, the Client acknowledges having read, understood and accepted these T&C without reservation. The Client's General Terms and Conditions do not apply.

The Client and the Provider are collectively referred to the Parties.

 

1. 1.Conclusion of the License Agreement 

   1. 1.1.Only Clients who have reached the age of majority, are capable of discernment and are not subject to adult protection measures may enter into a License Agreement. 

   2. 1.2.The Provider reserves the right to refuse an offer at its own discretion and without having to give reasons. 

   3. 1.3.All information provided by the Client is the sole responsibility of the Client and any errors in this information cannot be held against the Provider in the event that the Provider is unable to perform the License Agreement. 

 

1. 2.Subject of the Agreement 

   1. 2.1.The subject of the Agreement is the use of the Software and/or its Services for a limited period of time as specified below. The Provider provides the Client with the Software and/or its Services as described in the License Agreement. 

   2. 2.2.Unless stipulated otherwise in the License Agreement, the Provider will provide support in accordance with Section 3. There are no further accountability obligations. 

   3. 2.3.The Provider may use subcontractors and other auxiliary persons to provide the services. 

 

1. 3.Availability and Support  

   1. 3.1.Unless stipulated otherwise in the License Agreement, the Provider will provide the Software and/or its Services with an availability of no less than 90% on an annual average (the Minimum Availability). 

   2. 3.2.The following will not be considered downtimes when determining whether the Minimum Availability has been achieved: 

      • • downtimes due to factors not under the Provider's reasonable control, including, without limitation, acts of God, war, acts of terrorism, riots, governmental actions, or general network infrastructure failures; 

      • •network or equipment failures at your site or between your site and the components used to provide the Software and/or its Services , and 

      • •scheduled maintenance.  

Technical support can be contacted by e-mail customer.service@constructible.net.

1. 1. 3.3.Unless stipulated otherwise in the License Agreement, the scope of support essentially comprises the following components: 

• •support of Client in the event of problems using the Software and/or its Services; 

• •acceptance, classification, and, if required, forwarding fault reports to downstream support levels; and 

• •isolating the cause of malfunctions, fault diagnosis as well as undertaking services aimed at rectifying the fault within a reasonable period of time. 

 

1. 4.Changes to the scope of services 

   1. 4.1.The Provider is entitled to update the Software or change it in another form, provided that the change is reasonable for the Client, taking into account the interests of the Provider. Reasonable modifications include, without limitation, modifications that do not affect the Software’s essential scope of performance or are required for reasons of IT security or due to changes in the regulatory framework. 

   2. 4.2.The Provider will give the Client reasonable advance notice of upcoming modifications affecting essential scope of performance of the Software. If a modification in an individual case has a detrimental effect on the Client's interests to such an extent that the Client cannot be reasonably expected to adhere to the Agreement, the Client will be entitled to terminate the Agreement with a written notice with effect from the announced implementation of the changed scope of services. 

   3. 4.3.If the Agreement is not terminated with due notice in writing pursuant to Section 4.2., the changed scope of services will become part of the Agreement. 

 

1. 5.Remuneration  

   1. 5.1.The applicable fee will depend on the scope of services contracted by the Client in the License Agreement. 

   2. 5.2.The fee will be payable within thirty (30) days of invoicing.  

   3. 5.3.Prices generally are exclusive of applicable taxes and similar charges, including sales, use, consumption, withholding and value added taxes. Where applicable law requires the Client to withhold any amount, the Client will be responsible for paying withholding tax. The fees will be deemed increased accordingly, with the effect that all fees agreed in the T&C or in the respective License Agreement are net payment amounts. 

 

1. 6.Registration and Client account  

   1. 6.1.During the registration process, the Client must provide complete and accurate information and keep it correct and up to date at all times. Information on the number and scope of use must be accurate. Any identification information received by the Provider in advance must be used accordingly in the registration process. 

   2. 6.2.The Client must not disclose its user name, password or other login information to unauthorised persons and must take reasonable steps to keep such information secret. 

   3. 6.3.The Client is responsible for all activities taking place in its account. This applies irrespective of whether such activities are carried out by the Client's employees or by a third party (including contractors or representatives). The Provider and its affiliated companies are not responsible for any unauthorised access to the Client account. The Client must contact the Provider without undue delay if the Client becomes aware of any indications of possible unauthorised activities on its account or if account information is lost or stolen.] 

 

1. 7.Third-party rights 

   1. 7.1.To the best of the Provider’s information, knowledge and belief, the Software and its Services are free from intellectual property third party rights (hereinafter referred to as "rights" in this Section 7) that would prevent contractual use. 

   2. 7.2.Should third parties be entitled to and assert own rights against the Client, the Provider will defend and hold the Client harmless against the asserted third-party claims. The Client shall notify the Provider without undue delay of any assertion of such third-party rights, at least in writing, and will issue all powers of attorney and authority to the Provider as necessary to defend and hold itself and the Client harmless. If the Client discontinues its use of the Software and/or its Services in order to mitigate potential damage, it must notify the third party that in so doing, the Client does not acknowledge any alleged infringement. Without the Provider's consent, the Client is not entitled to enter into any settlements for alleged infringements. 

   3. 7.3.Where conflicting third-party rights in fact exist, the Provider will be entitled, at its option, (i) to acquire at its own expense additionally required rights of use, (ii) modify or replace the Software and/or its Services in such a way that it no longer infringes third-party rights, without thereby significantly impairing the scope of services, (iii) to terminate the Software and/or its Services if they are not commercially or operationally viable with immediate effect and to reimburse the Client for the fees for the contract term thereby foregone. 

 

1. 8.Intellectual property  

   1. 8.1.Any and all intellectual property rights on the content of the Website, to the Software and its Services remain exclusively with the Provider and its partners. The Client may use the Software and/or its Services only to the extent expressly granted in these T&C or, if applicable, by additional mandatory statutory provisions.  

   2. 8.2.The Software and the Services may be protected by various intellectual property rights. By entering into a License Agreement and unless expressly agreed otherwise, the Client does not acquire any rights to the Provider’s intellectual property. The Client is granted a non-exclusive right to access and use the Software and/or its Services in accordance with the T&C and the License Agreement. This authorisation is limited in time to the respective agreed period in the License Agreement. 

   3. 8.3.No additional rights of use exist. In particular, the Client is not entitled to do any of the following in relation to the Website, the Software and/or the Services or components thereof: 

• • •make them available to third parties; 

  • •reproduce, sell, modify, alter, manipulate, repair or create derivative works of them; 

  • •reverse engineer, disassemble or decompile them, or use other methods to derive the source code of the software underlying the Service; 

  • •utilize or exploit them in such a way that no charges are incurred or usage restrictions or quotas are exceeded; 

  • •use them in connection with a fork or derivative work, or access them using automated means, unless stipulated in the Specification of Services;  

  • •by circumventing the security mechanisms used; or 

  • •use them to carry out any activity which is harmful to third parties or otherwise illegal. 

 

1. 9.Data protection  

   1. 9.1.Detailed rules regarding the Provider's data protection practices can be found in the Data Protection Policy, available on the Website. 

   2. 9.2.By accessing the Website and/or entering into the License Agreement, the Client declares that it is aware of the current version of the Provider’s data protection policy.  

   3. 9.3.Please note that the Federal Data Protection Act, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR) or any other relevant data protection legislation may apply to the processing of your personal data. 

   4. 9.4.The Client hereby agrees that the Provider may from time to time send advertising material or newsletters. The Client may unsubscribe from these newsletters at any time (via the link in each newsletter or by email to customer.service@constructible.net). 

 

1. 10.Amendments to the T&C 

The Provider reserves the right to modify these T&C at any time, without prior notice, by publishing the modified conditions on its Website. The modified T&C shall be deemed accepted as soon as the Client visit the Website or concludes a License Agreement.

 

1. 11.Severability clause 

If individual provisions of the T&C are or become invalid as a whole or in part, this will not affect the validity of the remaining provisions. In such case, the Parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in case of any unintentional gaps in the T&C.

 

1. 12.Applicable Law and Jurisdiction 

   1. 12.1.These T&C shall be governed by and construed in accordance with Swiss law, to the exclusion of conflict-of-laws rules. 

   2. 12.2.Any dispute arising out of or in connection with these GTC shall fall within the exclusive jurisdiction of the courts of the city of Lausanne. 

 

1. 13.Contact 

   1. 13.1.Constructible Sàrl is Swiss limited liability company, with its registered office c/o Walder Wyss SA, Avenue du Théâtre 1, 1005 Lausanne.  

   2. 13.2.The Client can contact the Provider by email at info@constructible.net. 

 

29/05/2024