SaaS Terms of use

SaaS (Software-as-a-Service) TERMS OF USE (v19/01/2023)

PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT

THESE SOFTWARE-AS-A-SERVICE TERMS AND CONDITIONS (“SaaS-TC“) CONSTITUTE A BINDING AGREEMENT BETWEEN AQUAVISION ENGINEERING (“AVE”) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY “YOU” or the “CUSTOMER“). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES. THIS AGREEMENT IS DEEMED CONCLUDED BY THE RECEIVAL OF A CONFIRMATION E-MAIL AFTER SUBSCRIBING ON-LINE.

1. Scope

These Software-as-a-Service Terms and Conditions (“SAAS-TC” or “AGREEMENT”) govern the contractual framework conditions between AquaVision Engineering Sàrl (“AVE“) and a contractual partner of AVE (“Customer“) in connection with the provision of software for use via the Internet (Software-as a-Service).

The Customer recognizes the respective valid version of AVE’s SAAS-TC as an integral part of all existing and/or future contractual arrangements between the Customer and AVE in connection with the provision of software for use via the Internet. They shall also apply irrespective of whether they are or are not expressly referred to.

A detailed description of the services to be provided by AVE arises from the respective Subscription Plan as described on our website www.rocscor.com and to be chosen by the Customer.

Any deviations and/or supplements to these SAAS-TC require the express written approval of AVE for their validity. Such deviating agreements shall only apply to the agreement that contains the deviating agreement and shall not have any prejudicial effect for other agreements between the contractual parties.

Any General Terms and Conditions of the Customer are herewith expressly objected to. Their application to the contractual relationship between AVE and the Customer is excluded.

2. Modifications to this Agreement

You agree that AVE may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the rocscor Website http://www.rocscor.com. The revised terms shall be effective as follows:

if the revised terms are for a new Service which AVE is adding at the time of the revision, then the revised terms shall be effective upon posting (unless AVE expressly states otherwise at the time of posting);
if the revised terms are for a then-existing Service, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if AVE provides a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button.

By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the rocscor Website pages regularly for changes to this Agreement or the Additional Policies, as applicable. AVE last modified this Agreement on the date set forth at the top of this Agreement.

3. Services Provided by AVE

3.1 Right of use

AVE shall provide the software product named and described in the Subscription Plan on our website (“Software“) to the Customer for use via the Internet (“Service“). The Customer is not entitled to further rights associated with the Software, such as ownership, copyright, patent, trademark, or usage, teaching or promotion rights.

The Software shall be operated on computers/servers of a Swiss-based data center used by AVE. For the duration of this Agreement, the Customer is given the non-exclusive, non-transferable and non-sublicensable right to access the Software by means of its personal email address, a browser and an Internet connection and to use same for its own business purposes exclusively for the exercise of its commercial or independent professional activity. Any other use of the Software, such as for example the organization of free or remunerated teaching services (MOOC’s, etc.), any type of public use or promotion to third parties, any subscription transmission to third parties, etc., is prohibited.

Specific educational subscriptions related to regular teaching courses programmed at Universities or equivalent academic institutes, destined to University students and given by Professors or academic personnel, may be envisaged and are subject to prior written consent of AVE. In such as case, a course number and description are needed and the establishment of an Educational Subscription Agreement with AVE is mandatory. AVE reserves the right to modify the related subscription conditions at any time and without reason.

Specific academic subscriptions related to thesis works (Master, PhD, Post-Doc, etc.) organized by Universities or equivalent academic institutes, destined to University students and PhD or Post-Doc candidates, may be envisaged and are subject to prior written consent of AVE. In such as case, the establishment of an Academic Subscription Agreement with AVE is mandatory. AVE reserves the right to modify the related subscription conditions at any time and without reason.

The Customer is responsible for the Internet connection between the Customer and the data center and the hardware and software required for this purpose (e.g. PC, network connection, browser).

The right of use is limited to the number of User units booked by the Customer in accordance with the respective Subscription Plan on our website. Any sub-licensing or further licensing of the Software is prohibited.

The Customer has no right to a copy and thus also no right to a backup copy of the Software. All rights in the Software or the Service over and above the right of use defined in these SAAS-TC remain fully with AVE.

3.2 Restrictions

3.2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by AVE or authorized within the Services); or remove any proprietary notices or labels.

3.2.2 You may not install third party software on your SaaS Hardware, or pilot the rocscor Software via any type of distant or local connection, whether it is for preprocessing or post-processing of input/output data for the rocscor software, or for any other type of use.

3.2.3 You may not remove, obscure, or alter any notice of any TradeMark, or other intellectual property or proprietary right designation appearing on or contained within the Services or on any AVE Properties.

3.2.4 Subject to the terms and conditions of this Agreement, you may generally publicise your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without AVE’s prior written consent.

3.3 Operation

AVE shall take appropriate measures to make it possible for the Customer to use the Service as interruption-free as possible. AVE cannot guarantee availability of the Service at all times and absence of any other disruptions and interruptions to the functioning.

The Customer shall notify AVE of any disruptions to the Service without delay and provide information regarding the details of the circumstances of the issue. AVE shall remedy the disruption to the Service within an appropriate period of time. AVE is entitled to circumvent the disruption to the Service by means of a workaround solution if the cause of the disruption itself is only to be remedied with inappropriate expense and the usability of the Service is not significantly negatively affected.

3.4 Training/Support

In support of use of the Software as a Service, AVE provides an on-line available User’s Guide and a Technical Manual (after log-in) that allows the user to correctly use the Software. These documents are protected by copyright. All rights are reserved. Copying or other reproduction of this manual or the related programs, as well as any other use or transmission of it involving third parties, is strictly prohibited without prior written consent of AquaVision Engineering (AVE). This restriction also holds in case of educational or academic subscriptions granted by AVE through an Educational or Academic Subscription Agreement.

AVE provides on-line or live subscription packages to multiple-days Training Courses, covering both theory and practice of rock scour and its computational methods, as well as a significant number of explanations and/or answers on questions on how to correctly use the Software. A Microsoft Teams account is needed for on-line courses. AVE provides Training course documents (PDF). These documents are protected by copyright. All rights are reserved. Copying or other reproduction of this manual or the related programs, as well as any other use or transmission of it involving third parties, is strictly prohibited without prior written consent of AquaVision Engineering (AVE). This restriction also holds in case of educational or academic subscriptions granted by AVE through an Educational or Academic Subscription Agreement.

AVE does not provide any other technical support, specific project assistance, configuration implementation or customer-specific documentation or modification of the Software. Project assistance covers advice on how to use the Software in order to solve the specific needs of your own project.

User transmission of bugs or malfunctioning shall solely be carried out by email to support@rocscor.com. AVE shall provide its best possible services to check and potentially confirm and solve these bugs and malfunctionings within reasonable time delays, and only during working hours from Monday to Friday between 8.30 am and 5.00 pm CET. Legal holidays are excluded. Inquiries received outside of these support times shall be regarded as received on the following working day.

3.5 Changes to services

AVE may modify the Software (Service, including its system requirements) for the purposes of adapting to technical or commercial market changes and for good cause. In particular, such shall be deemed to exist if the modification is required due to

a) a necessary adaptation to a new legal situation or case law;
b) changed technical framework conditions (new browser versions of technical standards);
c) protection of system security, or;
d) further development of the Software (disabling old functions that are largely replaced by new ones, add additional functions, etc.).

4. Involvement of Third Parties

AVE is entitled to involve third parties for the purpose of meeting its contractual obligations. This shall, in particular, apply to hosting services.

AVE shall not accept any liability for the services of third parties involved to the extent legally permissible.

5. Remuneration and Payment Terms

5.1 Fee structure

For the use of the Software during the contractual term, the Customer shall owe AVE the subscription fees according to the respective Subscription Plan as detailed on our website and/or on the rocsc@r cloud.

5.2 Payment

A valid credit card is required for Customers of paying accounts. Customers of trial accounts are not required to provide a credit card number. An upgrade from the free trial plan to any paying plan will end the free trial. The Customer will be billed pertaining to the chosen Subscription Plan, i.e. per Basic Period of 3 months or 1 year, immediately upon upgrading from the Free DEMO version. The Service for the Basic Period is billed in advance. If Customer does not terminate the agreement ordinary or extraordinary, the Customer will be informed in advance by email to renew its Basic Period. Service will be billed for the Extension Period in advance at the end of the 3-monthly or yearly invoice cycle and is non-refundable. There will be no refunds or credits for partial months or years of service, upgrade/downgrade refunds, or refunds for months unused with an open account.

5.3 Net prices

All prices exclude any respectively applicable statutory sales tax (Switzerland: value added tax). The Customer is solely responsible for any sales taxes due.

5.4 Measures in the event of payment default

If the Customer defaults on the payment of fees, after relevant warning by email or letter, AVE is entitled to block access to the Service or extraordinarily terminate the contractual relationship. The Customer shall have no access to the data saved by it in the Service during the block. In the event of a termination, Section 9.2 shall apply.

6. Customer Data, Data Protection and References

6.1 Customer data (Intellectual Property Rights)

The Customer is exclusively entitled to the data input, generated thereby and allocatable to the Customer and the end users of Customer in the context of the use of the Software (“Customer Data”).

Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.

AVE shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

The provisions of this Section shall survive any termination of this Agreement.

6.2 Data protection

The Customer is aware that the use and processing of personal data within the meaning of the applicable domestic and/or foreign data protection legislation, in particular and as far as applicable the EU General Data Protection Regulation (“EU-GDPR“) and the Swiss Data Protection Act (Schweizerisches Datenschutzgesetz (“DSG“)) may require the prior consent of the affected persons and/or the registration of the relevant database with a domestic or foreign authority. AVE is, as far as applicable, fully compliant with the regulations of the EU-GDPR (rocscor.com/gdpr) and the DSG.

If AVE acts as the data processor, AVE shall process the customer data solely on behalf of and/or according to the instructions of the Customer. The processed data is used to provide the Software and is handled in accordance with AVE‘s Privacy Policy (rocscor.com/privacy-policy). The Customer remains responsible for the lawfulness of the collection, processing and use of the Customer data in accordance with the applicable legal regulations, in particular pursuant to EU-GDPR and DSG. Therefore, AVE provides the Customer with the opportunity to sign a Data Processing Addendum (“DPA”), which then forms an integral part of the contractual relationship between AVE and the Customer.

6.3 References

In the context of its marketing activities and in the preparation of its offers for projects of other customers, AVE is entitled to refer to the projects realized by it for the Customer and to document same, subject to the justified confidentiality interests and consent of the Customer.

In particular, AVE is entitled, subject to the consent of Customer, to publish the orders placed with same in the context of marketing activities, in particular refer to the business relationship on AVE’s website with the name and corporate logo of the Customer.

7. Release

The Customer shall release AVE and involved third parties of all third-party claims that may arise from (a) unlawful use of the Software by the Customer and/or, with the consent of the Customer, by third parties, (b) disputes arising from data protection laws, copyright laws or other legal disputes associated with the use of the Software by the Customer.

Customer hereby agrees to indemnify and hold harmless AVE against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.

In the assertion of relevant claims, the Customer is obligated to notify AVE thereof in writing without delay. In this case, AVE is entitled to block the Service for the Customer without delay and without providing a grace period. Any compensation claim asserted by the Customer based on the blocking of the Service is excluded.

8. Liability

All risks arising out of use of the rocsc@r software and its results remain with the Customer. In no event shall AVE be liable towards the Customer, or any third party, for any direct, consequential, incidental, special, punitive or other damages whatsoever (including, without limitation, damages to structures or installations, damages for loss of business profits or income, business interruption, or loss of business information), even if AVE has been advised of the possibility of such damages.

Furthermore, AVE shall not accept any liability whatsoever to the extent legally permissible, in particular, without limitations, for:

a) Any damages, direct or indirect, caused by:

• An incorrect interpretation (action or abstention), by Customer or third parties, based on the data or information provided using the software and that creates a damage.
• Any improper use of the software, in particular contrarily to the user’s and other manuals or other instructions for use, incorrect interpretation of the obtained results, lack of maintenance of it or the necessary interfaces for its use.
• Force majeure
• Erroneous functioning of the software
• Violation of contractual conditions by Customer
• Viruses, hackers or malware
• Operating system errors
• Interruptions generated by error corrections, maintenance, infrastructure modifications or also introduction of new technologies and add-ons
• Malfunctioning of service pack provided by third parties
• Loss of data
• Data provided by Customer are incorrect or incomplete
• Customer makes use of the results of the study in a partial manner, or for objectives different than the ones defined during the study
• Another entity than Customer makes use of the results of the study or makes any decision based on the work achieved by AVE
• Arising from the Customer’s violation of the contractual obligations;
• Caused by AVE’s involved third parties or support persons;

b) any indirect or subsequent damages such as, without limitations, business profits foregone, savings not realized or third-party claims.

9. No Warranties

All documents and related graphics and software are provided “as is” without warranty of any kind and are subject to change without notice. Although AVE commits itself to particular care for the correct content of the software, the information provided can be incomplete or contain errors. No assurance or guarantee, explicit or implicit, can be given by AVE concerning the accuracy and reliability of the information and data from the software and related Services.

AVE disclaims and excludes all warranties and conditions with regard to the software, including, without limitations, all implied warranties and conditions of merchantability, compatibility or interoperability with any hardware, software, systems or data, fitness for a particular purpose, title and noninfringement of any third party’s intellectual property rights, freedom from interruption or error, to the maximum extent permitted by applicable law, even if AVE has been advised of the possibility of such damages. This includes, without limitation, any damages arising out of the subscription, provision or use of the software, maintenance services or the results hereof.

AVE does not warrant that the software is free of inaccuracies, errors, bugs, viruses, interruptions or other harmful components or program limitations. AVE also does not warrant that the software will protect against all possible threats or that the software or any equipment, system or network on which the software is used, will be free of vulnerability to intrusion or attack. AVE is not responsible for any delays, failures or any loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the software and documentation may be subject to limitations, delays and other problems inherent in the use of such communication facilities.

10. Term and Termination

10.1 Term

The Subscription Plan is concluded for a particular term (3-monthly or yearly) depending on the Customer’s order (“Basic Period“). For yearly subscriptions, it shall thereafter extend automatically by the same period (“Extension Period“) if the contractual relationship is not ordinarily or extraordinarily terminated pursuant to Section 9.2 below by one of the contractual parties.

The provisions of Section 9.2 shall apply as aforesaid with respect to a reduction in usage units during the term.

10.2 Termination by You for Convenience

You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) providing AVE written notice of termination and (ii) closing your account for your rocsc@r SaaS service.

10.3 Suspension/Termination

We may suspend your right and subscription to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:

a) Ordinary termination: The contractual relationship may be terminated by any of the contractual parties at the end of the Basic Period or an Extension Period.
b) Extraordinary termination: AVE may extraordinarily terminate the contractual relationship for good cause at any time and with immediate effect. Good cause entitling AVE to extraordinary termination shall include, in particular:

if the Customer violates its contractual obligations insofar as this defect was not or cannot be remedied by the Customer within 10 days despite prior written warning by AVE.
if the Customer defaults on the payment of fees or if any payment mechanism you have provided to AVE is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within a 15 day period.
if insolvency proceedings are instituted against the Customer.
if you attempt a denial of service attack on any of the Services.
if you seek to hack or break any security mechanism on any of the Services or AVE otherwise determines that your use of the Services poses a security or service risk to AVE, to any user of services offered by AVE or any third party to liability, damages or danger.
if you otherwise use the Services in a way that disrupts or threatens the Services.
Ii you are in default of your payment obligations and there is an unusual spike or increase in your use of the Services.
if AVE determines, in AVE’s sole discretion, there is evidence of fraud with respect to your account.
if you use any of the Services other than as expressly permitted herein.
if AVE receives notice or AVE otherwise determines, in AVE’s sole discretion, that you may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
if AVE determines, in AVE’s sole discretion, that AVE’s provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
if subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

c) Termination or Suspension by AVE Other Than for Cause: AVE may suspend your right and subscription to use any or all Services covered by this Agreement for any reason or for no reason, at AVE’s discretion at any time by providing you sixty (60) days’ advance notice.

10.4 Effect of Suspension/Termination

10.4.1 Suspension

Upon AVE’s suspension of your use of any Services, in whole or in part, for any reason,

(i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension (including your continued storage of data during the period of suspension);

(ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and

(iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.

10.4.2 Termination

Upon termination of this Agreement for any reason:

(i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services;

(ii) all of your rights under this Agreement shall immediately terminate.

10.4.3 Survival

In the event this Agreement is terminated for any reason, Sections 6 to 13 will survive such termination.

10.5 Customer’s data after termination

At the end of the contractual relationship and upon written request by the Customer, AVE shall provide a copy of the Customer’s data saved on its servers as of the date of the end of the contractual relationship on a customary data carrier or by electronic transfer and in a customary format.

At the end of the 60 days from the end of the contractual relationship or upon request by the Customer already prior to this period, AVE shall delete the data of the Customer saved on its servers finally and in full. This action shall be subject to mandatory legal retention obligations.

AVE is not obligated to surrender its data to the Customer in deviation to these provisions (in particular relating to time, format or migration). Any deviating surrender of the Customer’s data shall require the prior written consent of AVE as well as separate remuneration by the Customer.

11. Confidentiality

The contractual partners obligate themselves and their employees and involved support persons reciprocally to maintain the confidentiality of all documents and information not generally known that relate to the business sphere of the other contractual party and, which become accessible in the preparations for and execution of this contractual relationship.

The confidentiality obligation shall continue to endure even after termination of the contractual relationship to the extent there is justified interest therein.

12. Notice

12.1 To You

Except as otherwise set forth herein, notices made by AVE to you under this Agreement that affect AVE’s customers generally (e.g., notices of amended Agreements, updated fees, etc.) will be posted on the rocscor website. Notices made by AVE under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to AVE in your registration for the Services or in any updated email address you provide to AVE in accordance with standard account information update procedures AVE may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon AVE’s sending of the email, whether or not you actually receive the email.

12.2 To Us

For notices made by you to AVE under this Agreement and for questions regarding this Agreement or the Services, you may contact AVE as follows: support@rocscor.com

and/or

AquaVision Engineering Sàrl

Chemin des Champs-Courbes 1

CH-1024 Ecublens

SWITZERLAND

12.3 Language

All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

13. Final Provisions

13.1 Amendments to these SAAS-TC

AVE shall notify the Customer of any amendments to these SAAS-TC. Any amendments to the SAAS-TC shall enter into force for the contractual relationship between AVE and the Customer insofar as the Customer does not object to the amended SAAS-TC within a period of 10 days in writing.

13.2 Successors and Assigns

These SAAS-TC will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

13.3 Entire Agreement

These SAAS-TC incorporate by reference all policies and guidelines posted on the rocscor Website and/or SaaS portal, including all Additional Policies, and constitutes the entire agreement between you and AVE regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.

13.4 Offsetting and assignment of claims

The offsetting of any claims of AVE against counterclaims of the Customer shall require the prior written consent of AVE. The Customer is not entitled to assign any claims from the contractual relationship with AVE to third parties, in whole or in part, including not to any Group or subsidiary companies.

13.5 Place of performance

The place of performance shall be the registered offices of AVE.

13.6 Severability clause

Should individual provisions of these SAAS-TC be invalid or incomplete or should performance be impossible, this shall not negatively affect the validity of the remaining provisions of these SAAS-TC. Invalid provisions shall be replaced by an admissible, valid provision that is as close as possible to the content of the original in terms of its intent, and the rest of these SAAS-TC will remain in full force and effect.

13.7 Waivers

The failure by AVE to enforce any provision of these SAAS-TC shall in no way be construed to be a present or future waiver of such provision nor in any way affect AVE’s right to enforce such provision thereafter. All waivers by AVE must be in writing to be effective.

13.8 Date of contract conclusion

The contract is deemed concluded by the receival of a confirmation e-mail after subscribing.

13.9 Relationship

Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and AVE (or any of AVE’s affiliates).

13.10 Read and understand

You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions.

14. Applicable Law and Place of Jurisdiction

The contractual relationship between AVE and the Customer, including the Subscription Plan and its potential Appendices, are subject to Swiss law, under exclusion of any national or international treaties or agreements legally valid at the time of entry into force or a dispute (e.g. United Nations Convention on Contracts for the International Sale of Goods (CISG) or the Hague Convention on Purchases).

In the event of any differences of opinion in connection with the contractual relationship, the contractual parties undertake to attempt to agree to a mutually agreed regulation in good faith. If, despite the efforts of the contractual parties, no agreement can be made by amicable means, the place of jurisdiction for all disputes, differences of opinion or claims arising from or in connection with the contractual relationship between AVE and the Customer, including the Subscription Plan and its potential Appendices, including their validity, invalidity, violation or dissolution, shall be Lausanne, Switzerland. Irrespective thereof, AVE is entitled to sue the Customer at its general place of jurisdiction.