Software as a Service Change4Win General Terms

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. By using, creating an account or logging in to use the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

This Agreement sets forth the terms and conditions under which Actino SARL (“Actino”) agrees to license to its clients (“Subscriber”) certain hosted software and provide other services tailored to their needs necessary for productive use of such software including customization / integration, data import / export, monitoring, technical support, maintenance, training, backup and recovery, and change management (the “Services“) as further set forth on an Exhibit A (sequentially numbered). The Agreement shall remain in effect unless terminated as provided for herein.

Article I. Definitions

"Subscriber Materials" all works and materials:

(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Subscriber or by any person or application or automated system using the Subscriber 's account; and
(b) otherwise provided by the Subscriber to Actino in connection with this Agreement;

“Defect” means a defect, error or bug having an adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

• an act or omission of the Subscriber , or an act or omission of one of the Subscriber 's employees, officers, agents, suppliers or sub-contractors; or
• an incompatibility between the Platform and any other system, application, program or software not specified as compatible in Schedule.

"Documentation" means the documentation produced by Actino and made available on the Platform to the Subscriber specifying how the Platform should be used;
“Platform” : means the software platform known as Change4Win that is owned and operated by Actino , and that will be made available to the Client as a service via the internet under this Agreement;
“Term” means the term of this Agreement;
“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

Article II. User Licence

Unless otherwise limited Actino SARL grants Subscriber a renewable, irrevocable nonexclusive, royalty-free, and worldwide right for any Subscriber employee, contractor, or agent, or any other individual or entity authorized by Subscriber, (each, an “Authorized User”) to access and use the Services. Other than those limitations expressly described Authorized Users will have no other limitations on their access or use of the Services.

The Services are provided on a tiered basis, such tiers as further described in the Exhibit A. Subscriber agrees to license the initial number of Authorized Users described in such Exhibit B (the “Minimum Commitment“). Subscriber is entitled to increase or decrease the number of Authorized Users on an as-requested basis; provided, however, that Subscriber shall maintain the Minimum Commitment unless the parties otherwise agree to adjust the Minimum Commitment. Should Subscriber elect to change the number of Authorized Users, Actino SARL shall reduce or increase Authorized Users to the corresponding tier described in the Exhibit B and adjust the prospective Services Fees accordingly no later than five (5) business days from Subscriber’s written request.

The method and means of providing the Services shall be under the exclusive control, management, and supervision of Actino, giving due consideration to the requests of Subscriber. Except as otherwise specified, the Services (including data storage), shall be provided solely from within Luxembourg and on computing and data storage devices residing therein.

2.01 Actino will make available the Platform to the Subscriber by setting up a new environment and an account for the Subscriber on the Platform, and providing to the Subscriber login details for that account within 10 Business Days following the Specific Conditions date of signature.

2.02 Subject to the limitations herein set out Actino hereby grants to Subscriber a non-exclusive license to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.

2.03 The Subscriber may choose and change the name of the users with its user administration page.

Article III. Support Services and Upgrades

3.01 Documentation. The documentation for the Services (the “Documentation”) available online will accurately and completely describe the functions and features of the Services, including all subsequent revisions thereto. The Documentation shall be understandable by a typical end user and shall provide Authorized Users with sufficient instruction such that an Authorized User can become self-reliant with respect to access and use of the Services.

3.02 Actino continuously works to improve the Services and may change the Services at any time. Actino shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure the functionality of the Services, as described in the Documentation ; Actino may release the Services or their features in a beta version, which may not work correctly or in the same way the final version may work. Actino will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Service. In all its Services Actino is bound by an obligation of mean.

3.03 Where Actino has improved the actual features and functionalities within the same described scope of the platform, Subscriber shall have an additional license and subscription right to use and access the new services, at no additional charge, with the same rights, obligations, and limitations as for the Services.

3.04 Customization / Integration Services. Actino shall provide the Customization / Integration Services, if any. The Services Fees shall be inclusive of the fees for the Customization / Integration Services.

3.05 Training Services: Actino SARL shall provide training services, if any. The Services Fees shall be inclusive of the fees for the Training Services.

Article IV. Fees

4.01 Subscriber shall pay to Actino SARL Fees in advance for the services referred in exhibit A and B, on a monthly basis or annual basis in the manner and according to the prices set out on our Site or separately agreed upon.

4.02 First period to be paid upon execution

4.03 The fees are exclusive of VAT and any other applicable sales or use taxes, duties, or other financial obligations, and you agree to indemnify us for any such fees which may be incurred during the delivery of our Service to you.

4.04 With the exception of a trial subscription or where a free plan applies, you may only access our Site by paying the applicable fees in advance, on a monthly basis or annual basis, as the case may be.

4.05 You may request cancellation of our Service at any time, at which point we will cease billing your credit card in case you have chosen credit card as payment method. In such a case, your subscription shall not be refundable, even on a pro rata basis, and you shall instead be able to use our Service until the expiry of their paid subscription period.

Article V. Warranties

5.01 Actino warrants to Subscriber :
(a) the Services are fit for the ordinary purposes for which they will be used;
(b) it is possessed of superior knowledge with respect to the Services;
(c) it is the lawful licensee or owner of the Services (excluding any Subscriber Data therein) and has all the necessary rights in the Services to grant the use of the Services to Subscriber;
(d) it knows the particular purpose for which the Services are required by Subscriber;
that it will perform its obligations under this Agreement with reasonable care and skill being bound by an obligation of mean only; (e) the Platform (excluding for the avoidance of doubt the Subscriber Materials) will not infringe any person's Intellectual Property Rights ;
(f) the Platform is and will remain free from viruses and other malicious software programs.

5.02 The Subscriber acknowledges that the services being developed as a
(a) complex software is never wholly free from defects, errors and bugs, and Actino gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
(b) Actino does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in Schedule [1]; and

Article VI. Limitations and exclusions of liability

6.01 Actino strives to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and The client expressly understand and agree that Actino shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from:
(a) the use or the inability to use the service;
(b) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service;
(c) unauthorized access to or alteration of your transmissions or data;
(d) statements or conduct of any third party on the service;
(e) or any other matter relating to the service.

6.02 The liability of a party, whether based on an action or claim in contract, equity, negligence, tort, or otherwise for all events, acts, or omissions under this agreement shall not exceed the quarterly fees paid or payable on a yearly basis under this agreement, and provided, further, that the foregoing limitation shall not apply to :
(a) party's obligations of indemnification, as further described in this agreement;
(b) damages caused by a party's gross negligence or willful misconduct ; or,
(c) a party's breach of its obligations of confidentiality, as further described in this agreement. This section shall survive the termination of this agreement.

Article VII. Data protection

7.01 Ownership. Subscriber’s data (“Subscriber Data,” which shall also be known and treated by Actino as Confidential Information) . Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber. This Section shall survive the termination of this Agreement.

7.02 The subscriber and all users are responsible for safeguarding the password that he use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.

7.03 The subscriber and all users are responsible for maintaining the confidentiality of, and protecting your account information (including your password). The subscriber and all users are responsible for all activity on your account. The subscriber and all users must notify Actino immediately upon becoming aware of any breach of security or unauthorized use of their account.

7.04 Actino Use of Subscriber Data. Actino has entrusted the hosting of the application and the databases to a company based in Luxembourg. This company stated in exhibit B is provided a limited license to Subscriber Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Subscriber Data only to the extent necessary in providing the Services.

7.05 Actino and the hosting company shall keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; Article VIII. Confidentiality

8.01 Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section shall survive the termination of this Agreement.

8.02 The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

Article IX. Data Privacy and Information Security.

9.01 Undertaking by Service Actino SARL. Without limiting Service Actino SARL ’s obligation of confidentiality as further described herein, Actino SARL shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of Service Actino , if any, comply with all of the foregoing. In no case shall the safeguards of Service Actino’s data privacy and information security program be less stringent than the safeguards used by Subscriber.

Article X. Proprietary Rights.

10.01 Pre-existing Materials. Subscriber acknowledges that, in the course of performing the Services, Actino SARL may use software and related processes, instructions, methods, and techniques that have been previously developed by Actino SARL (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Actino SARL .

10.02 No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.

Article XI. Term and Termination; Renewals

11.01 This Agreement is legally binding as of the Effective Date and shall continue until terminated as provided for herein. Unless this Agreement or Exhibit B is terminated earlier in accordance with the terms set forth herein, the term of an Exhibit B (the “Initial Term“) shall commence on the Start Date and continue until the End Date. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, an Exhibit B shall automatically renew for successive one (1) year terms (each, a “Renewal Term“) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then-current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term.

11.02 Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement or an Exhibit B for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non breaching party may terminate this Agreement or an Exhibit B for cause as of a date specified in such notice.

11.03 Payments upon Termination. Upon the termination of this Agreement or an Exhibit B, Subscriber shall pay to Actino SARL all undisputed amounts due and payable hereunder, if any, and Actino SARL shall pay to Subscriber all amounts due and payable hereunder, such as Performance Credits and prepaid fees, if any.

11.04 The services provided shall start at the effective date for a minimum 1 month period. The Agreement shall be automatically renewed for a one month period upon renewal.