General Terms and conditions

Updated on January 17 2022

General Terms and Conditions. This document is a translation of our French GTCU. This translation is for information only. In case of mistranslation or  misinterpretation, the original document is regarded as valid.

By completing the sign-up process on the homepage of WeCount SA (the “Provider”), the customer (the “Customer”) unconditionally agrees to these General Terms and Conditions of Use (“GTCU”). The Provider reserves the right to change these Terms and Conditions of Use at any time. The amended Terms and Conditions of Use shall become effective upon their publication on the Website.

I. Software as a Service (SaaS) Contract

  1. The Provider provides SaaS services via the Internet for its customers in the field of business software.

  2. The purpose of this contract is :
    • the provision of software by the Provider for use via the Internet, and
    • the backup of the customer’s data (data hosting).

II. Provision of software

  1. The Provider shall make the software solution “WeCount” in its latest version available to the customer for the duration of the contract via the Internet against payment. For this purpose, the Provider shall store the software on a server accessible to the customer via Internet.
  2. The Provider shall continue to improve the software and shall make these improvements available to the customer by means of regular updates and upgrades. All current features can be found in the description of services on the provider’s website (wecount.swiss).
  3. The Provider continuously checks the software for correct functioning and eliminates software errors if this is technically possible. In particular, an error occurs when the software does not fulfill its functions as described in the service description and delivers incorrect results or does not function properly in general, so that the use of the software becomes impossible or significantly reduced.

III. Rights to use the software

  1. The Provider grants the customer the non-exclusive and non-transferable right to use the “WeCount” software for the duration of the contract within the framework of the SaaS services and in accordance with the description.
  2. The customer is not allowed to reproduce or edit the software, if this authorization is not clearly mentioned in the description of the services updated on the website. In particular, the customer is not allowed to temporarily install or save the software on data carriers (hard disks or similar media) of his own hardware (apart from the RAM).
  3. The customer is not entitled to make the software available to third parties, either free of charge or against payment. The customer is expressly prohibited from making the software available to third parties in any form.
  4. The customer undertakes to inform such third parties that, in accordance with his contractual obligations, unpaid use of the software by third parties is excluded.
  5. In addition to the “WeCount” software, the customer may have the option of ordering various add-ons from the supplier. Such add-ons may allow the integration of third-party suppliers into the software. If access rights are required to use such an add-on, the customer expressly agrees to grant all necessary access rights when ordering the add-on.
  6. The Supplier shall provide the Customer with an interface (API) for communication with the software of third-party suppliers. Regardless of any guarantees to the contrary, the Provider reserves the right to restrict access to this interface in whole or in part at any time for good cause. The Provider understands good cause to include incidents such as competitors of the Provider wanting to damage the Provider by causing data migration on the interface, or the infrastructure being overloaded with requests on this interface.

IV. Data hosting

  1. The provider reserves a certain amount of storage space on a server for the customer to store his data. If the storage space for the customer’s data is not sufficient, the Provider will inform the customer in good time. If the customer does not order additional storage space in return for payment, the data that exceeds the available storage space will not be saved.
  2. The Provider shall ensure that the data saved via the Internet can be accessed, if technically possible.
  3. The customer is not entitled to make this storage space available to third parties, neither in part nor in full, neither for a fee nor free of charge.
  4. The customer agrees not to store any content on the memory space, the distribution, publication and use of which would be contrary to applicable law or in violation of agreements with third parties.
  5. The Provider is obliged, within the scope of technical possibilities, to take appropriate and reasonable measures against the loss of data and to prevent unauthorized access to the customer’s data by third parties. To this end, the Provider shall make regular backups, protect the customer’s data against viruses and install firewalls.
  6. The customer is in any case the only person entitled to access the data and can therefore demand that the Provider return some or all of the data during the term of the contract, without the Provider being able to exercise a right of retention. The return of data shall be effected at the option of the customer either by the transmission of a data carrier or by sending the data via a data network. The customer has no rights to the software used to create the data.
  7. After termination of the contract, the customer may still demand the return of his data for a period of one month (from the date of termination) in accordance with the terms and conditions set out in point 6 above. The Provider is not obliged to continue to store the customer’s data beyond this period of time. If a customer requests the return of his data after the one-month period has expired, and if the data is still available at the Provider, the Provider shall return the data to the customer against payment of the costs actually incurred for this purpose.

V. Technical support and customer service

  1. The Provider shall answer the customer’s questions and requests (by e-mail or telephone) in connection with the “WeCount” software and other SaaS services by telephone or in writing during the opening hours as published on the wecount.swiss website as soon as possible after receipt of each message.

VI. Accessibility deficiencies

  1. Adaptations, changes and additions to the SaaS services that are part of the contract, as well as measures to diagnose and repair malfunctions, will only lead to a temporary interruption or a temporary impairment of accessibility if this is necessary for technical reasons.
  2. The basic functions of the SaaS services are checked daily. The maintenance of the SaaS Services is normally carried out from Monday to Friday, from 8:00 a.m. to 7:00 p.m. In the event of a severe failure – the use of the SaaS services is no longer possible or is severely limited – the maintenance will normally be carried out within 2 hours after the customer has informed us or notified us. The Provider will notify the customer of the maintenance work in good time and will carry out the maintenance work as quickly as possible.
  3. The availability of the SaaS service alone is 99.5% on average per year.

VII. Obligations of the Customer

  1. The customer is obliged to take precautionary measures to prevent unauthorized third-party access to the software. If necessary, the customer shall inform his employees of the need to observe copyright. In particular, the customer shall instruct his employees not to copy the software or pass on access data to third parties.
  2. The customer is personally responsible for the collection and processing of the data and information required for the use of the SaaS services – without prejudice to the provider’s obligation to ensure data security.
  3. The customer undertakes to test his or her data and information against viruses and other malicious programs before downloading them and to install up-to-date virus protection programs for this purpose.
  4. When using the SaaS Services for the first time, the customer must generate a user ID and a password in order to be able to use the SaaS Services. The customer is obliged to keep the user ID and password secret and not to allow third parties to access them.
  5. The customer must immediately inform the Provider of any unauthorized use of his or her User ID and password or any other breach of security. If necessary, the Provider shall change the Customer’s User ID and password in consultation with the Customer.
  6. The customer shall take all measures necessary to safeguard or improve the security of data, software and network connections, as determined by the provider. In particular, the user undertakes to change his password regularly, at least once every sixty (60) days.

VIII. Remuneration

  1. The customer undertakes to pay the Provider the agreed remuneration for the provision of the software and the data hosting according to the subscription, including the statutory value added tax.
  2. The Provider shall send the customer an invoice showing the contractual amount charged.
  3. The Provider shall be entitled to adjust the price and the content of the service in writing to the customer or by the next termination date. The reasons for a change in service are mainly technical progress and the continuous development of the software. If the customer does not wish to continue the contract as a result of a change in the price, he/she may, in exceptional cases, terminate the contract within 14 days of the change.

IX. Warranty/Liability

  1. The Provider guarantees the proper functioning and availability of the SaaS services in accordance with the provisions of these GTC.
  2. The customer undertakes to indemnify the Provider from all claims of third parties based on the data stored by the Provider and to reimburse the Provider for all costs incurred by the Provider in the event of any legal violations.
  3. The Provider is entitled to immediately block the storage space if there are well-founded reasons to believe that the stored data is illegal and/or infringes on the rights of third parties. Reasonable grounds for illegality and/or infringement of third-party rights shall include, in particular, steps taken by the courts, authorities and/or various third parties to inform the Provider. The Provider shall immediately inform the customer of this restriction and the reason for it. The blocking must be lifted as soon as the suspicions are fully refuted.
  4. Within the scope of the statutory provisions, the Provider shall not be liable to the customer (or any third party), in particular for the fulfilment of contractual and non-contractual obligations and for loss of data and loss of profit (including negligence). This exclusion of liability also applies to damages resulting directly or indirectly from the use of the “WeCount” software.
  5. In all cases, irrespective of the basis of liability, the mutual liability of the parties to the contract is limited to the amount of the monthly access fees for the last twelve months prior to the occurrence of the damage.

X. Duration/Cancellation

  1. The contractual relationship begins with the application and registration by the customer. At present, the customer has the option of choosing between a monthly and an annual subscription
  2. Monthly subscriptions are concluded for an indefinite period of time and can be terminated by both parties by giving one month’s notice at the end of the month mentioned.
  3. Annual subscriptions are concluded for a period of one year. If the customer does not terminate the subscription at the latest 30 days before the end of the year, the subscription is automatically extended for another year. The invoice for the annual subscription is issued in advance, once a year.
  4. Cancellation procedure: The termination of the contract must be initiated online, from the customer’s WeCount account. Once the termination request is made, WeCount sends an email with a confirmation link to the customer. Once the termination is confirmed, the customer’s account is closed after the notice period has expired.
  5. The parties are free to invoke the immediate termination of the contract for good cause. The supplier essentially recognizes the following circumstances as “just cause” for immediate termination of this contract:
    1. if the customer becomes bankrupt or a petition for bankruptcy for lack of assets is filed against him;
    2. if the customer has been summoned to meet its payment obligations under its contractual obligations and is in default of payment of at least one monthly fee and has been given an additional two weeks to pay and is under threat of termination of the contract, all steps being in vain;
    3. if, by using the contracted services, the customer culpably violates applicable legal regulations or infringes upon the rights of third parties with regard to copyrights, intellectual property or naming rights;
    4. eif the customer uses the services provided for criminal, illegal or ethically questionable purposes.

XI. Confidentiality

  1. The Supplier agrees not to disclose to third parties any confidential processes or information which may have come to its knowledge in the course of preparing, executing and fulfilling its contractual obligations, in particular trade or business secrets of the Purchaser, without the Purchaser’s consent. This applies to all unauthorized third parties, unless the transfer of information is necessary for the proper fulfillment of the contractual obligations of the Supplier.
  2. The Supplier shall be entitled to make official and general references to the Customer – unless the Customer expressly objects in writing – in an appropriate manner with reference to the contract concluded, for marketing and sales purposes.

XII. Data Protection

  1.  By accepting these General Terms and Conditions, the customer also accepts the Personal Data Processing Policy in its currently applicable version. The latter is available at any time on the homepage of WeCount. The customer declares that he/she is aware of both documents.

XIII. Intellectual property rights

  1. All intellectual property rights to the services, the “WeCount” software, the website and the documentation relating to the services remain the property of the provider.

XIV. Communications

  1. All communications shall be sent in writing to the addresses given by the Customer upon registration and by the Provider on its homepage, except where a stricter and more binding method of communication is provided for in the contract or by law. Transmissions via fax or e-mail shall comply with the requirements of written form. Communications from the Provider sent to the e-mail address indicated by the Customer at the time of registration shall in any case be valid as written communication.
  2. Each of the contractual partners is obliged to inform the other partner immediately of any change of address (including e-mail address), otherwise communications sent in writing to the last known address shall be deemed to have been validly transmitted.

XV. Safeguard clause

In the event that individual provisions of this Agreement are invalid in whole or in part, the invalid provisions may have to be reinterpreted, supplemented or replaced in such a way that the economic objective pursued by the invalid provision is ultimately achieved. The same principle applies in the event that there are regulatory gaps in this agreement.

XVI. Jurisdiction and choice of law

  1. For all legal relationships arising from this contractual relationship, the parties agree to apply the law of the Swiss Confederation, to the exclusion of the provisions of private international law (PIL) and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  2. The courts of Lausanne shall have exclusive jurisdiction over any disputes that may arise in connection with the execution of this contractual relationship.