1. General
By (i) accessing and registering at Levuro.com (ii) or registering an account in the Apps, (iii) signing the Order Form, or (iv) agreeing to the Online Purchase Plan the client declares that accepts these terms and conditions (“Terms of Service” or “Agreement”).
They agree to comply with these Terms of Service or otherwise to refrain from accessing the website and Apps.
1.1 These Terms of Use shall apply to the services on levuro.com, the Apps and the other services provided in the plan purchased.
1.2 The service provided on levuro.com or in the Apps (hereinafter: “Service”) is offered by Levuro AG, Torgasse 4, 8001 Zurich, Switzerland (hereinafter: “Provider”).
1.3 In the event of any conflict between any of these Terms of Service, the Order Form or Online Purchase Plan, any SOW and Attachment, such documents will be interpreted in accordance with the following order of precedence:
1.3.1 In relation to the Services:
(a) the Order Form or Online Purchase Plan; then
(b) these Terms of Service; then
(c) the Attachments in the order of their numbering; and
1.3.2 in relation to Professional Services:
(a) the SOW; then
(b) the Order Form or Online Purchase Plan; then
(c) these Terms of Service; then
(d) the Attachments in the order of their numbering.
2. Definitions
For the purposes of these Terms of Service, the following capitalized words and expressions shall, unless expressly stated otherwise, have the meanings stated below:
“Acceptance Phase”: you can find it in sec. 4.7.
“App”: the mobile applications “Levuro engage” and other applications listed on https://itunes.apple.com/us/app/levuro-engage/id1308178619?mt=8 and
https://play.google.com/store/apps/details?id=com.levuro.engage2
“Client”: the legal entity which has entered into this Agreement as indicated in the Order Form or Online Purchase Plan.
“Client Content”: as defined in sec. 6.1.
“Commencement Date”: means the date set out in of the Order Form that is the starting date for Levuro to provide the Service and/or Professional Services and for Client to pay the Fees.
“Confidential Information”: as defined in sec. 9 of the Terms of Service;
“Deliverables”: to be provided by Levuro as part of any Professional Service as identified as such in any SOW.
“Feature”: describes a new functionality which will be added to the Services, it may also be custom development for one or more specific clients only.
“Fees”: the fees and prices agreed between the Parties in the Order Form or Online Purchase Plan.
“Initial Terms”: the initial fixed duration of the Agreement starting with the Commencement Date.
“Internal User”: as defined in sec. 6.1. of the Terms of Service.
“Levuro AG” or “Levuro”: the Supplier entity with whom the Client has entered into this Agreement as indicated in section 2 of the Order Form.
“Order Form”: as defined in the document “ORDER FORM LEVURO SERVICE”.
“Online Purchase Plan”: as defined in sec. 5.1.
“Partie(s)”: mean(s) Client and Levuro that are parties to the Agreement.
“Personal Data”: means personal data as defined under applicable data protection laws.
“Professional Services”: means development, customization, programming and consulting services that are ordered by the Client under a SOW.
“Reserved IP”: as defined in sec. 4.5 of the Terms of Service.
“Request”: is any request made to a Levuro server for the loading of a resource, making an ad call, logging a tracking event.
“Services”: this Agreement between the Parties which is comprised of (a) the Order Form, (b) the Attachments to the Order Form (including these Terms of Service), and (c) where Services are provided, any SOW.
“SOW”: the additional agreement, if any, between the Parties in respect of the provision of Professional Services under this Agreement.
“SOW IP”: as defined in sec. 4.6 of the Terms of Service.
“Taxes”: as defined in sec. 5.4 of the Terms of Service.
“Term”: duration of the Agreement starting with the Commencement Date and ending as set out under sec. 8 of these Terms.
3. Services
Levuro’s “Service” includes the services offered on the website and the App and the other services provided to you trough levuro.com based on the Online Purchase Plan or the Order Form.
If and to the extent agreed in the Online Purchase Plan or in the Order Form, this Agreement grants Client the right to use the Services as follows:
3.1 Access to Services: Immediately after the Commencement Date, Levuro shall provide to Client in a sufficiently secured manner the necessary information and access details to allow Client to access and use the Services as set out in the Online Purchase Plan or Order Form.
3.2 Right to Use the Services: Levuro grants Client a non-exclusive, non-sublicencable, and non-transferable worldwide right during the Term to use the Services as set out in this Agreement and the applicable Order Form or Online Purchase Plan.
3.3 Conditions: Client’s use of the Services is subject to Client’s payment of the Fees and Client’s compliance with the terms and conditions of this Agreement.
3.4 Restrictions: Unless otherwise explicitly agreed herein, Client shall not resell, copy, modify, distribute, publish, sublicense, make publicly available, reproduce, rent, lease, share or transfer the Service or Client’s right to use the Services to any third party or website. Client may not use the Services or parts or results thereof to develop or provide a service that is competitive to the Service.
3.5 No reverse engineering: In no event may Client reverse engineer, disassemble, decompile the Service or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms, or (ii) to derive the source code of the underlying ideas, algorithms, structure or organization from, the Service, except to the extent permitted by law and then only after unsuccessful request to Levuro for information necessary to achieve interoperability.
3.6 Retention of rights: Levuro retain all rights, title, and interest in and to the Service, including all intellectual property rights therein anywhere in the world. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted under the Agreement.
3.7 Availability of the Service: Levuro makes every effort to ensure the proper operation of the services at all times; nevertheless, Levuro does not guarantee the continuous availability and accessibility of the platform. Levuro is not responsible for technical transmission delays or failures. Interruption of Levuro’s Service can occur due to interruption at third parties like Facebook, Twitter, etc. Any warranty rights – implied or explicit – with regard to the Service or the support services are excluded.
4. Professional Services
4.1 Performance of Professional Service: Levuro shall, subject to the terms and conditions set forth in this Agreement, use commercially reasonable efforts to perform the Professional Services as agreed in the respective SOW in a professional manner in accordance with industry standards.
4.2 Request of Professional Services: Upon a specific and detailed request of the Client, Levuro shall prepare an offer in the form of a draft SOW. Any such draft SOW shall specify the Professional Services to be provided, the terms and conditions for such provision, and the fees, costs and expenses payable by the Client to Levuro. The Client’s acceptance of this offer must be declared within ten (10) Business Days after receipt of the same otherwise the offer shall be considered rejected, unless otherwise stated therein. Until acceptance in writing of the offered SOW, Levuro shall have no obligation to perform the offered Professional Services.
4.3 Request of modifications: Client may at any time request a modification to the Professional Services under any particular SOW by written request to Levuro specifying the desired modifications. Levuro shall, within a reasonable time following receipt of such request, inform the Client whether the modification can be performed and, if it can be performed, submit an estimate of the costs for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the SOW. The Client’s acceptance of this offer must be declared within five (5) Business Days after receipt of the same otherwise the offer shall be deemed rejected.
4.4 Delivery date: Delivery dates or other deadlines for Levuro regarding Professional Services shall be non-binding unless explicitly agreed otherwise in the applicable SOW.
4.5 Reserved IP: As between the Client and Levuro, Levuro or its licensors shall own and hold all right, title and interest in and to all intellectual property that is property of Levuro or its licensors and that may be used as basis for or in fulfillment of the Professional Services (“Reserved IP”).
4.6 SOW IP: Unless otherwise agreed in the applicable SOW and contingent upon full payment of the fees for the respective Professional Services, the Parties agree that title to all intellectual property created for Client in the performance of Professional Services under a specific SOW that is no Reserved IP (“SOW IP”) will be vested in and be the exclusive property of Client. Levuro will, upon full payment of the agreed fees, assign and transfer in the further course of performance of this Agreement and the applicable SOW to the Client full ownership in any and all such SOW IP and the Client hereby accepts such assignment and transfer.
If and to the extent such assignment and/ or transfer of SOW IP is legally impossible under the applicable law, Levuro, upon full payment of the agreed fees, shall grant Client an exclusive, worldwide, perpetual, irrevocable, transferable right to use the respective SOW IP.
Whether expressly specified in the relevant SOW, this license also extends to the source code of such Deliverable, if any.
If and to the extent necessary in order to use SOW IP, Levuro will, against payment of a fee agreed in the SOW or, in lack of such agreement, under the current licensing rates, grant Client a non-exclusive, transferable, worldwide right to use the Reserved IP together with the SOW IP during the Term.
4.7 Acceptance Procedure: For Deliverables the following acceptance procedure applies:
4.7.1 Levuro shall inform Client in writing that the relevant Deliverables or part of Deliverables are ready for acceptance and shall provide access to the Deliverables.
4.7.2 Without delay, however at the latest within a period of seven (7) Business Days after receipt of this notification, Client shall review and test the Deliverables (“Acceptance Phase”).
4.7.3 After the Acceptance Phase has been successfully completed Client must declare within the time period agreed for the Acceptance Phase its acceptance in writing. Client shall be obliged to accept Deliverables or part of Deliverables substantially produced in conformity with the description in the applicable SOW. Acceptance may solely be refused by Client due to material defects in the Deliverables. All other defects shall not prevent Client from declaring acceptance of the Deliverables, but shall be remedied as set forth in these Terms of Service.
4.7.4 At the end of the Acceptance Phase, a written acceptance report shall be prepared and signed by both Parties. Any defects determined by Client during Acceptance Phase shall be described in the acceptance report and the reasons for any refusal of acceptance shall be stated.
4.7.5 If acceptance is refused due to a material defect, then Levuro shall remedy the acceptance inhibiting defect(s) without undue delay and present the relevant Deliverables or part of Deliverables under the above listed rules for acceptance under the procedure described herein again.
4.7.6 The Deliverable(s) shall be deemed accepted, (i) if Client does not declare acceptance within the Acceptance Phase or as otherwise agreed, provided that Client is obliged to declare acceptance of the respective Deliverable; or (ii) if Client after the Acceptance Review (a) commercially exploits or otherwise makes use of the Deliverable or (b) puts the Deliverable or parts thereof in productive use.
4.7.7 In case material defects are not remedied within the period under sec. 4.7.5 above, Client is entitled to claim reduction of the fee. In the case of a fee reduction, the fee is to be reduced in the proportion in which the value of the Deliverable free of defects would have had compared to the actual value. Additionally, statutory rights to claim damages in case of defective Deliverables apply. Any additional warranty rights – implied or explicit – with regard to the Deliverables or the professional services are excluded. Warranty rights under and in connection with this Agreement and expire after twelve (12) months.
5. Payment
5.1 Levuro will invoice Client at the beginning of each month for the use of the Services.
5.2 Online Purchase Plan: Where the Client selects a service and purchases the selected service with his credit card in accordance with the Fees set out on the respective subsite or App online (“Online Purchase Plan”), payment is due on receipt of the invoice. The Client acknowledges that the amount charged on the Client’s credit card can vary due exchange rates to the price shown, depending on the country the Client’s payment method was issued, the type of payment used or the country the client processes the payment.
If the payment method or credit card expires within the payment plan and the Client doesn’t update the credit card information, you authorize that Levuro can charge the billing amount to your credit card and the Client remains responsible for the amount.
5.3 Purchased by Order Form: Levuro will invoice and Client shall pay the Fees as agreed in the Order Form and Description of the Services. 30 days after the receipt of the invoice all Fees are due and payable in the currency set out in the Order Form. Any portion of any amount payable by Client that is not paid when due will accrue interest at a rate of 18% per annum or the highest rate permitted by applicable law, whichever is less, from the due date until paid. Client will reimburse Levuro for actually accrued expenses incurred in collecting any overdue payments.
5.4 Expenses for Exploitation: It is understood and agreed that the Agreement is intended to be a net service agreement and, unless otherwise specifically provided herein, as between Levuro and Client, Client will be responsible for all costs, expenses, charges and liabilities of any nature related to the marketing, broadcasting, or other exploitation or use of the Services throughout the Term.
5.5 Taxes: Without limiting the foregoing, Client will be responsible for and pay any applicable taxes, levies or similar charges (collectively, “Taxes”) (other than Swiss income taxes owed by Levuro) that may be levied upon the Services where it is made available or used, may be incurred in connection with the exploitation of the Services, or may become applicable to any payments to Levuro hereunder, including, but not limited to VAT. If any such Taxes are required to be withheld by Client under applicable law (“Withholding Taxes”), Client shall withhold and make the required tax payment to the applicable taxing authority but shall increase the applicable payment to Levuro such that the aggregate amount actually paid to Levuro (net of any amounts withheld) is equal to the amount that would have been paid to Levuro in the absence of any such withholding requirement. The above shall apply respectively to any payments by Levuro to Client under the revenue sharing model (see Order Form).
5.6 Withholding Taxes: If any Withholding Taxes become applicable to any payments to Levuro hereunder, the Parties hereto shall cooperate and shall notify each other and use commercially reasonable efforts to provide each other with all necessary documents and fulfill all necessary requirements to obtain or qualify for an exemption or reimbursement, or otherwise handle such imposition or application of such Taxes in a commercially reasonable manner. However, (i) if and to the extent liability for Taxes is imposed on Client for which it is responsible pursuant to this Section and client has made a payment to the competent authority and (ii) if to the extent Levuro has received a tax credit or rebate because of such Tax, Client shall be permitted to recover any such Taxes to the extent and in the amount such credit or rebate is actually received by Levuro, from any subsequent payments by Client to Levuro pursuant to this Agreement. The above shall apply respectively to any payments by Levuro to Client under the revenue sharing model (see Order Form).
6. Client Responsibilities
6.1 Client Content: the Client is solely responsible for any and all activities or omissions under the Levuro accounts and/or in connection with the Agreement by a Client employee, staff client or contractor (“Internal Users”), whether or not authorized by Client, including Internal Users’ compliance with all applicable data privacy and other laws. They shall oblige their Internal Users adequately to ensure the protection of Levuro rights and interests as provided in this Agreement.
They are solely responsible for the customer content that the Client or internal users of the Client upload, publish, link or display using Levuro’s Service (“Client Content”). Levuro has the authority to remove any Client Content uploaded that is in violence with this agreement or the Data privacy statement.
6.2 Responsibility with regard to external factors: Client shall be solely responsible for any inability to access or to use, or any failure of the Services caused by the defectiveness or incompatibility of infrastructure, software or hardware used by Client or End Users to access or to use the Service.
7. End User and Client Content; user data
7.1 Rights in Client Content: Client or its third-party advertisers and licensors will retain ownership of and all rights in and to all Client Content, Usage Data and User Data. Client hereby grants to Levuro a non-exclusive, sublicensable, worldwide, royalty-free license to use Client Content as necessary for Levuro to provide the Services. This includes, but is not limited to, the right to store, edit, modify, make publicly available, redistribute and technically translate the Client Content, convert it to a different format or to make the Client Content accessible and available to Internal and End Users. Client hereby represents and warrants that it owns or otherwise has sufficient rights to grant Levuro these rights.
7.2 Storage and Backup of Client Content: Other than with respect to operation of the Levuro Services under these Terms of Service, Levuro will have no responsibility or liability for maintaining Client Content on its servers, and Client is solely responsible for backing up its Client Content. Levuro shall maintain User Data and Usage Data data throughout the term of the Agreement and for a period of no longer than ten seven (7) calendar days. Client may against additional fees, based on Levuros’s current price list, request storage of User Data and Usage Data for up to sixty (60) days following termination of the Agreement.
7.3 Changes in Client Content: Client shall be responsible for all changes to, blockings of and/or deletions of Client Content. Client will be solely responsible for the accuracy and completeness of the Client Content. Client shall be responsible for, and assumes the risk of, any problems resulting from, the Client Content, accuracy, completeness and consistency of all such Client Content, materials and information supplied by Client.
7.4 Compliance with laws and Non-Infringement: Client will be solely responsible that Client Content does not violate applicable laws or infringe third party rights, including, but not limited to, intellectual property rights, personal or proprietary rights of third parties. Client further represents and warrants that the Client Content (i) is not connected in any way to theft, deceit, drug trafficking, or other illegal activity; (ii) does not contain material relating to prostitution or pedophilia; (iii) does not contain any defamatory, pornographic, obscene, or threatening materials; (iv) is not known, intended or reasonably suspected of being infected with viruses; does not interfere with or disrupt the integrity or performance of the Services or the data contained therein, and is not used to send unsolicited e-mails or text messages.
7.5 Responsibility: Client covenants that its use of the Services and all Client Content will comply with all applicable laws, statutes, regulations or rules, including but not limited to export control rules and optional standards such as PCI, and does not violate any third party rights. Client will remove all infringing content from the Client Site as required under applicable law. Client is responsible to obtain any End User or Internal User consent or meet other requirements in order to offer and use the Services in compliance with applicable laws.
7.6 Use of ideas: Client acknowledges and agrees that Levuro may freely use any comments, ideas, analytics data and/or error reports provided by Client to Levuro or stored by Levuro in context of the operation of the Services in non-personalized form and such comments, ideas, data and/or error reports shall not be considered proprietary to Client.
7.7 Use of Usage Data and User Data: Client hereby grants to Levuro a non-exclusive, sublicensable, worldwide, royalty-free license to use Usage Data and User Data only as necessary for Levuro to provide the Services. If and to the extent Usage Data and User Data contain Personal Data, sec. 14 below applies.
7.8 Anonymized Usage Data: Levuro is permitted to anonymize Usage Data and shall obtain ownership in such anonymized Usage Data (sorted by uniqueid and segments, e.g. interests or age group). Levuro will use such anonymized Usage Data to improve the Service for all customers of Levuro, the ad sales and ad delivery through the Levuro Ad module and Ad network.
8. Term and Termination
8.1 Term (“Term”)
For Online Purchase Plans: This Agreement commences on the Commencement Date and continues for the Initial Term. If the Client has chosen monthly payment the Initial Term is one (1) month. If the Client has chosen yearly payment, the Initial Term is twelve (12) months. Following the Initial Term, this Agreement will automatically renew for an additional period of one (1) month if the Initial Term was one month and twelve (12) months if the Initial Term was one year, if the Client has not cancelled Services in the online user account before the end of the Term.
For Services purchased with the Order Form: This Agreement commences on the Commencement Date and continues for the Initial Term. Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year unless either Party terminates in writing the Agreement, at least sixty (60) days prior to the end of the Initial Term or the end of any renewal period.
8.2 Termination by either Party for cause: Either Party may terminate the Agreement upon written notice with immediate effect if the other Party (i) is in material breach of this Agreement, which breach remains uncured for thirty (30) days after written notice of the breach is received by the breaching Party, or (ii) enters into compulsory or voluntary liquidation proceedings.
8.3 Termination by Levuro: Levuro is also entitled to terminate or at its option suspend the Agreement for cause if Client (i) is in default with payment of the respective invoice more than one month and does not pay the overdue amount within ten (10) Business Days of receipt of a written notice or (ii) in is material breach of the licensing restrictions in section 3 and 4 or of section 7 above on End User and Client Content.
8.4 Following Termination: Upon expiration or termination of this Agreement for any reason, each Party shall return to the other Party, or destroy and certify the destruction of, all copies of the other Party’s Confidential Services. The Client is not entitled to use the Services or permit others to use the Services after the end of the Term. The rights and obligations of the Parties under Sections 6 through 14, 16 and 18 will survive the termination or expiration of this Agreement.
8.5 Relation SOW and Agreement: A termination of an SOW shall have no effect on the term of any other SOW and/or the Term of this Agreement. A termination of this Agreement automatically terminates all SOWs. The Client must pay in full any Deliverables or Professional Services under a SOW; section 8.4 above does not apply to SOWs.
8.6 Suspension of Service: Levuro may suspend its performance under this Agreement and suspend the Client’s access to the Services in whole or in part, in the event that (i) Levuro reasonably believes on the basis of sufficient grounds that Service are being used by the Client in material breach of Sections 3, 4 or 7 of these Terms of Service; or (ii) any amount due under the Agreement is not received by Levuro within fifteen (15) days after Client was in default of payment, or (iii) Levuro is required by law or a final decision of a regulatory or government body to suspend the Services, until such event is cured or resolved.
9. Confidentiality
9.1 “Confidential Information” means: (i) any information of a Party related to its business operations, which is disclosed in writing. oral or in any other form in or under or in connection with the Agreement and is conspicuously designated as “Confidential” at the time of disclosure or any information that is to be reasonably considered as “Confidential” by the nature of the circumstances surrounding the disclosure; (ii) all data or session keys obtained through use of the Service; and (iii) the specific terms and the content of this Agreement.
9.2 Obligation: Each Party shall not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, the Services and the Professional Services hereunder, and shall not disclose Confidential Information to any third-party, except to those of its employees and contractors that need to know such Confidential Information for the performance of this Agreement, the Services and the Professional Services hereunder and who are subject to a written confidentiality agreement at least as protective as the terms set forth herein. Each Party shall use all reasonable efforts to maintain the confidentiality of all of the other Party’s Confidential Information in its possession or control. Each Party shall return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of the Agreement.
9.3 Exclusions: Each Party’s confidentiality obligations shall not apply to information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) was rightfully in the receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) is rightfully obtained by the receiving Party from a third party without restriction on use or disclosure. However, either Party may disclose the other Party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that (a) the Party required to make such a disclosure gives reasonable notice to the other Party to enable it, to contest such order or requirement and (b) the Party required to make such disclosure has directed the third party to obtain the relevant information from the other Party; (ii) as required under applicable securities regulations; or (iii) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party. In any case of such disclosure only such Confidential Information shall be disclosed to the extent necessary to comply with the aforementioned requests.
10. Indemnification
10.1 Mutual Indemnification: Each Party shall indemnify and hold the other Party harmless from and against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with any third-party claim alleging that the Services (Levuro) or the Client Content (Client), as applicable, infringes or violates any third-party right, including without limitation, any copyright, patent, trademark or other intellectual property right, or publicity, confidentiality, property or privacy right.
10.2 Indemnification Procedure: Each Party’s indemnification obligation in Section 10.1is subject in each instance to the indemnified Party (i) promptly giving notice of the claim to the indemnifying Party; (ii) giving the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle such claim unless such settlement unconditionally releases the indemnified Party of all liability and does not adversely affect the indemnified Party’s business); and (iii) providing to the indemnifying Party all available and necessary information and reasonable assistance
11. Limitations and Disclaimers
11.1 Services Limitation: Levuro does not have any obligation to monitor, screen, or restrict use of the Services by individual Internal Users or End Users, or to monitor, review or take any other action regarding any Client Content or any other content uploaded by Client to the Services. Levuro does not endorse any Client Content or any opinion, recommendation or advice expressed therein. Levuro disclaims any responsibility or liability to Client or any third party for any use of the Services by any Internal User or End User, or for the accuracy, completeness, appropriateness, legality or applicability of any Client Content, and Client hereby waives any rights or remedies Client may have against Levuro with respect thereto.
11.2 Disclaimer of warranties: Except as explicitly provided under the terms and conditions of this Agreement, Levuro expressly disclaims all warranties, express or implied, regarding the Services and Levuro content, including any implied warranty of quality, availability, merchantability, fitness for a particular purpose or non-infringement. In addition, Levuro makes no representation or warranty that the Services or Levuro content will be error free or that all errors will be corrected. Client’s sole remedy for Levuro’s failure to provide any service is provided in Attachment B (Service Level Agreement). Section 10 and 12 of these Terms of Service remains unaffected.
12. Limitation of Liability
12.1 Limitation of liability: Except for liability arising out of payment, confidentiality or indemnification obligations, in no event shall Levuro be liable to the Client for any indirect or consequential damage (including, but not limited to, loss of data, revenue, profits, use or other economic advantage), irrespective of the legal ground arising out of, or in any way connected with this Agreement.
12.2 Agreed Liability Cap: The Parties agree that any liability of Levuro under or in connection with this Agreement shall be limited to an amount that equals one hundred (100) % of the Fees paid by Client under the applicable SOW in the twelve months preceding the damaging event, or – in case the damaging event does not relate to a specific SOW – one hundred (100) % of the Fees paid by Client under the entire Agreement in the twelve (12) months preceding the damaging event.
12.3 Unlimited Liability: The aforesaid limitations of liability shall not apply to Levuro’s liability for intentional or fraudulent acts or omissions, or any mandatory statutory liability, in particular to liability under the applicable Product Liability Act (Produkthaftungsgesetz). In addition, such limitations of liability shall not apply if and to the extent Levuro has assumed a specific guarantee.
12.4 Duty to Mitigate: Client must take adequate measures to avert and reduce damages.
13. Force Majeure
Neither Party will be liable to the other Party by reason of any failure or delay in performance because of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, fires, flood, storm, explosions, acts of god, war, terrorism, governmental action, earthquakes, or internet connectivity or failure issues experienced by major telecommunications providers or a Levuro co-location facility.
14. Data Protection
With respect to processing of Personal Data under the Agreement, the Parties agree to comply with the provisions of applicable local country data protection law.
14.2 If Client chooses certain settings or implements certain functionality of the service, Levuro may collect or otherwise process Personal Data. Except for processing of Usage Data as explained in sec. 7.7 of these Terms of Service, the Parties acknowledge and agree that Levuro receives Personal Data solely as a data processor acting on behalf of Client. In such case, Client is solely responsible to comply with applicable data protection laws and is responsible for obtaining any legally required consents, approvals and authorizations.
14.3 Client shall be solely responsible to respond to any request of an End User or an Internal User, or of Client employees, related to the Services.
15. Marketing
Client grants Levuro the right to use Client’s name and logo on Levuro’s website and/or in marketing materials during the Term, solely to identify Client as a Services user.
For public relations purposes Levuro can use Client’s name, logo and test case in order to promote Levuro’s business and can ask for testimonials which Levuro will present and share with third parties.
Client must pre-approve any other use of Client’s name or logo in writing. Client will not unreasonably withhold such approval.
16. Notice
All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service or by electronic mail as described below to the other Party at the address set forth herein.
All notices shall be deemed to have been given upon receipt or, if earlier, two (2) Business Days after being deposited in the mail as required above.
Either Party may change its address by giving timely notice of the new address to the other Party pursuant to this Section.
17. Assignment
Neither Party may assign this Agreement or any rights or obligations resulting therefrom to any third-party except upon prior written consent, not to be unreasonably withheld.
Notwithstanding the foregoing, Levuro may assign this Agreement or any rights or obligations resulting therefrom without such consent to a parent or subsidiary.
Any purported assignment in violation of this Section shall be void.
18. General
18.1 Independent Contractors: Notwithstanding any provision hereof, for all purposes of this Agreement each Party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract.
18.2 Effectiveness / Salvatorian Clause: The invalidity of individual provisions of this Agreement shall not affect the validity of the remaining provisions.
18.3 Severability: In the event that any provision in this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a Party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
18.4 No Third Party Beneficiaries: The Parties acknowledge that, unless expressly provided otherwise in the Agreement, the covenants set forth in the Agreements are intended solely for the benefit of the Parties. Nothing herein, whether express or implied, will confer upon any third party, person or entity, other than the Parties, any right whatsoever to enforce any provision of the Agreement.
18.5 Governing Law: This Agreement will be governed by and interpreted in accordance with the laws of Switzerland, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement shall be brought exclusively in courts located in Zurich, Switzerland and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
18.6 Entire Agreement: This Agreement comprises the entire agreement between Client and Levuro regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. Any modification or amendment of this Agreement shall be in writing by the parties including this requirement of writing. In the event of any conflict between the Terms of Service posted on the Levuro website and this Agreement, the latter shall govern.
3rd Party attributions
Open source and third party licenses and attributions are kept up to date at https://levuro.com/thirdparty/
youtube API
By agreeing this terms the client agrees to the YouTube Terms of Service https://www.youtube.com/t/terms
Levuro, November 2021