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GENERAL TERMS & CONDITIONS

tomsfive AG

 

1. Scope
a) The existing terms and conditions of tomsfive AG regulate the contractual agreement between tomsfive AG (hereafter «tomsfive») and the customer for the standard software solution «tomsfive», which is produced by tomsfive and provided as a Software-as-a-Service (SaaS) over the internet.
b) The general terms and conditions of tomsifive apply to all sales to our customers.
c) tomsfive retains the right to make changes to the General Terms and Conditions at any time. Any changes to the General Terms and Conditions will be published on the website and go into full effect at that point in time.

2. Software «tomsfive» – Contract
a) tomsfive provides it’s customers with SaaS-Services over the Internet in the area of human resources/business administration/recruiting using the «tomsfive» software.
b) The subject matter of the agreement is:
1. The granted right to use «tomsfive» via the Internet
2. The storage of customer data (Data-Hosting).

3. Right to use «tomsfive» software
a) tomsfive grants the right for customers to use the most updated version of «tomsfive» software via the internet for the given duration of the contract. For this purpose, tomsfive stores «tomsfive» software on a an external server that is accesible to customers over the internet.
b) tomsfive continuously develops its software and will provide regular updates and upgrades to improve it. The scope of features and functions is listed in the performance description on the tomsfive website (www.tomsfive.com)
c) tomsfive continuously monitors the functional ability of the software «tomsfive» and solves software failures and difficulties according to the technical possibilities at hand.
d) Failures with «tomsfive» will be divided into the usual categories of prio 1, prio 2 and prio 3. Prio 1 failures will be repaired and released as quickly as possible. Prio 2 and Prio 3 failures will be fixed and released in timed cycles.

4. Right of use for the software «tomsfive»
a) tomsfive grants the customer the non-exlusive and non-transferable right to use the software «tomsfive» for the duration of the contract, within the context of the intended SaaS services.
b) The customer is not allowed to reproduce, distribute or modify the software «tomsfive», so far as it is not expressly stated and allowed within the current General Terms and Conditions. Any long-term or even temporary installation or storage of the software «tomsfive» on discs (hardrives etc.) of hardware used by the customer (excluding Random Access Memory during use) is not allowed.
c) The customer is not authorized to make the software «tomsfive» available to third parties, weather for monetary payment or for free. Every form of making the software «tomsfive» available to any third parties is expressly prohibited for all customers.
d) The customer is obligated to design its contractual relations with third parties, in such a way that an unathorized use of the software «tomsfive» by a third party is prevented effectively.

e) tomsfive offers its customer an interface (API) for the «tomsfive» system to communicate with third party softwares. Regardless of assurances to the contrary, Tomsifve retains the right to partially or entirely restrict the access to the interface for an important reason, in every case and at any time. Such an important reason exists particularly when harmful data is transferred or too much strain is placed on the infrastructure through requests via the interface.

5. Data Hosting
a) tomsfive leaves a predetermined amount of storage space on a server for the customer to save data.
tomsifve secures this stored data for a duration of 12 months. Retrospective data anlysis is possible within the given time period. The storage capacity is defined within the context of the «tomsfive» scope of functions and can be expanded through an increase in the scope of services.
b) tomsfive is responsible for ensuring that the saved data is available over the internet within the context of the technical possibilities.
c) The customer is not authorized to allow partial or complete use of this data storage space to any third party.
d) The customer is obligated not to store any data on the servers whereby its provision, publication or use could violate applicable laws or agreements made with a third party.
e) tomsfive is obligated to take appropriate and reasonable precautions, within the context of the technical possibilities, to prevent data loss and unauthorized access tot he customer’s data by a third party. To this end, tomsifve will regularly perform data backups, scan the customer data for viruses and install appropriate firewalls.
f) The customer remains the sole proprietor of the the data at all times and can therefore make individual or entire data requests throughout the duration of the contract, without any right to withhold on behalf of tomsfive. The manner in which this data is issued is at the discrection of the customer, this can occur either through a transfer of data storage discs or through digital transmission through a data network. The customer has no rights to access or use the data of the software itself.
g) After termination of the contract, the customer is authorized to make data issuance requests within 1 month of the date of termination under the conditions of Ziff. 11).
tomsfive is not obligated to save customer data beyond this period of time. In the event that a customer makes a data issuance request after the expiration of this 1 month period and the data is still available, tomsfive will issue the data request after payment is completed for the additional costs that are incurred.

6. Support & Customer Service
a) tomsifive support is available to customers from Monday through Friday from 8:00AM to 5:00PM (CET) either via telefon (contact person on the contract) or email (contact person on the contract or support@tomsfive.com). Individual contract modifications (service level agreements) can be agreed upon for additional support outside of these hours.

7. Support Accessibility
a) Adjustments, changes and additions to the contractual agreement for the SaaS services and provisions that serve the purpose of detecting and correcting malfuntions, will only lead to a temporary interruption or impairment to accessibility when it is necessary for technical reasons.
b) The basic functions of the SaaS services occurs on a daily basis. The maintenance of SaaS services generally occurs from Monday through Friday from 8:00AM – 5:00PM (CET). The maintenance windows are scheduled for every Thursday from 7:00PM – 10:00PM (CET).
c) In the event of severe errors (Prio 1) – the use of the SaaS services is no longer possiblie i.e. severely impaired – maintenance generally occurs as quickly as possible after notification.tTomsive will inform the customer regarding maintenance in a timely fashion and the perform the mainenance as quickly as possible.
d) On average, the individual SaaS services are available 99.5% of the year, excluding maintenance times.
e) The customer is aware, however, that the SaaS services and further components from third parties, of which the functionality cannot be influenced by tomsfive, comprise a technically complex system. For this reason, tomsfive cannot provide a guarantee for the continuous and complete availaibility of these components.

8. Customer Obligations
a) The customer is obligated to take appropriate precautions to prevent unathorized third parties from accessing the software «tomsfive». To this end, the customer must communicate the importance of compliance with and protection of this copyright, so far as necessary. In particular, the customer must instruct the employees to not make copies of the software «tomsfive» or provide access data to a third party.
b) The customer is personally responsible for entering and maintiaining the data and information necassary to use the SaaS services, despite the obligation for tomsfive to secure this data.
c) The customer is obligated to monitor for viruses and other harmful components before entering sensitive data or information by using state of the art virus protection software.
d) During the first use of the SaaS services, the customer must generate a „User ID“ and password themselves, which is necessary for further use of the SaaS services. The custumer is obligated to keep the „User ID“ and password a secret and ensure it is not accessible for third parties.
e) The customer must inform the provider (tomsfive) of any unauthorized use of the „User ID“ and password or other attacks on the customer’s security. In these cases, tomsfive will change the „User ID“ and password that the customer agrees to.
f) The customer must take all the measures deemed necessary within reasonable discretion by tomsfive, in order to safeguard and improve the security of the data, the software «tomsfive» and the network connection. For example, the user is obligated to change the password on a regular basis, at least every 60 days.

9. Payment
a) The customer is obligated to complete payment to tomsfive for access to the software and the data hosting in the amount agreed upon in the contract (plus sales tax).
b) tomsfibe will send an invoice to the customer, indicating the contractually agreed upon payment due. The payment is due within 30 days of the date of invoice to the tomsfive bank account, for which all the necessary information will be included in the invoice.
c) After the expiration of the 30 day payment period, without additional reminders, the customer will be liable for the payment of interest on the amount due at a customary rate, at minimum 3% above the discount rate of the Swiss National Bank.
d) tomsifive retains the right to make any adjustments to fees or the scope of services at the next possible date of termination through a written notification. Reasons for such a change in the scope of services in most cases are technological advancement and further development of the software «tomsfive». In the event that the customer does not wish to continue the contract with the renewed terms, the customer may terminate the contract within a 14 day period of the date of change.

10. Warranty/Liability
a) tomsfive guarantees the functional and operational readiness of the SaaS services in accordance with the provisions of these General Terms and Conditions.
b) The customer is obligated to indemnify tomsfive of any claims by third parties that are based on data stored by the customer and to compensate tomsfive for all costs incurred due to possible legal violations.
c) tomsfive is authorized to immediately block the customer’s data storage space if there is reasonable suspicion that the data is illegal and/or infringes on the rights of third parties. A well-founded suspiciom of illegality and/or infirngement on third party rights exists in particular, when courts, authorities and/or other third parties inform tomsfive of such actvitiy. tomsifve will immediately inform the customer of their data storage removal and the reasoning behind it. The suspension can be lifted as soon as the suspicions have been completely invalidated beyond reasonable doubt.
d) Within the scope of legal provisions, tomsfive disclaims all liability towards the customer (or any third party), particularly for the execution of its contractual and on-contractual obligations as well as for the loss of data or profits (including negligence). This exemption of liability also applies to and direct or indirect damage arising from the use of the software «tomsfive».
e) In every case, regardless of the basis of liability, the mutual liability between the parties is limited to the amount of the monthly access fees in last twelve months prior to the damage.

11. Duration/Termination/Dissolution
a) The contractual relationship begins with the first registration by the customer.
b) The contract is completed for the duration of one or multiple years. If the customer does not elect to cancel at least 3 months prior to the termination deadline, the current contract will automatically be extended by another year. This contract is invoiced in advance on an annual basis.
c) Form of termination: The termination must be completed in writing. Following the termination, tomsifve will send a confirmation by email. After the period of notice has expired, the customer account will be blocked.
d) The parties retain the right to immediately terminate and dissolve the contract for an important reason. An important reason for the immediate termination of the contract exists for tomsfive especially when
I. The customer is bankrupt or the process of insolvency has been discontinued due to lack of assets.
II. The customer is in default with payment obligations from the contractual agreement to the extent of at least one quarterly fee and they have been warned with the threat of contract termination without the success of setting a 2 week grace period.
III. The customer violated the contractual agreement, the law, infringes on intellectual property rights or the copyright of third parties when using the services.
IV. The distributed services are used for the purpose of promoting criminal, illegal or unethical actions by the customer.

12. Confidentiality
a) tomsfive is obligated to maintain confidentiality of all the customer’s business processes and trade secrets that tomsfive has become aware of through the preperation, implementation and execution of this contract, and not to disclose this information to third parties without explicit consent by the customer. This applies to all unuathorized third parties, provided that the disclosure of the information is not necessary for the proper fulfillment of tomsfive’s contractual and legal obligations.
b) The customer hereby authorizes tomsfive to use the customer’s name as a public reference and to use general information about the agreed upon contract for appropriate marketing and sales purposes.

13. Data Security
a) By accepting these General Terms and Conditions, the customer simultaneously agrees to the tomsfive privacy policy, in the form of its most recent valid version. This policy is permanently available for reference on the tomsfive homepage. The customer hereby declares to know of and agree to this policy.

14. Intellectual Property Rights
a) All intellectual property rights related to services, the software «tomsfive», the website, and the documentation relating to the services remain the property of tomsfive.

15. Announcements
a) All communications are to be sent in writing to the according addresses indicated at the time of customer registration, i.e the addresses listed on the tomsfive homepage, unless otherwise stipulated by law or this contract. Notices sent via email satisfy the written communication requirement. All notices from tomsfive to the email address provided by the customer at the time of registration will be deemed as a written notices in all cases.
b) The contracting parties are obligated to communicate changes in address (incl. Email) without delay. If one of the partners fails to do so, any messages or inquiries that are sent to the last address officially communicated in writing will still take legal effect.

16. Severability Clause
a) In the event that the entirety or part of a clause proves to be ineffective, any of these provisions will be modified, supplemented or replaced in such a way that the economic purpose of an ineffective provision is achieved. The same rules apply in the event that any regulatory loopholes may be present.

17. Jusrisdiction & Choice of Law
a) The parties hereby agree to the application of the law of the Swiss Confederation and to the exlusion of provisions by International Private Law (IPR) and the UN convention on contracts for the international sale of goods (CiSG). This applies with regard to all legal arrangements arising from this contractual agreement.
b) For all disputes arising from the settlement of this contracual agreement, it is agreed that St.Gallen (Kanton of St.Gallen, Switzerland) will be the exclusive place of jurisdiction.

All rights reserved – tomsfive AG – April 2020