Terms and Conditions
App End-User License and Terms and Conditions of Use of
Tell Us About It Sarl (“TellUs” )
1.1 This License to use and these Terms and Conditions of Use (as amended) (“LTCS”) govern the use of the GyRate Application (the “App”) as featured on the GyRate website (https://gyrateapp.com), App Store and Google Play and apply to all persons or entities having accepted these LTCS and being registered to use the App (“User” or “registrant”) at any time.
1.2 a) Where the User of the App is a legal entity, (“Company”), its acceptance and registration as a User shall be made on its behalf by a duly authorised officer of the Company. The registrant shall produce the consents and authorisations necessary for the Company’s registration, in particular, the Company’s unconditional agreement to be bound by these LTCS as well as the registrant’s authority to register the Company on the latter’s behalf.
b) The registrant shall disclose it is applying for and acting on behalf of a Company and shall provide TellUs with such consents, authorisations and agreement before proceeding to the acceptance and registration formalities at cls.1.3 &1.4.
c) The registrant shall be deemed to be the lead contact person for the Company as per cl.10 and shall be registered as an Employee User upon their acceptance of these LTCS.
1.3a) Access to the App is strictly subject to a registrant’s express and unreserved acceptance of these LTCS in full which is given by ticking the “I accept” box appearing on the screen.
b) A registrant’s acceptance will be recorded. If a registrant disagrees with the whole or any part of these LTCS, does not have authorisation or the capacity or does not wish to be registered as a User, the registrant should not proceed further and access to the App will not be granted.
1.4 a) Following acceptance and agreement to these LTCS as above, TellUs will enter into contact with the registrant to proceed to their registration.
b) TellUs reserves the right to require any other form of acceptance it deems appropriate from the registrant and to refuse registration in TellUs’s absolute discretion and without having to provide a reason.
1.5 a) Upon completion of registration, access to the App is given through a User specific code issued by TellUs, which is personal to the User and these LTCS then become immediately applicable and in force.
b) A Company may at any time designate employees to be registered as a User (“Employee User”) subject to their express acceptance of these LTCS by their ticking of the “I accept” box.
c) Employee User’s shall not be issued a User specific code upon registration and may be de-registered at any time by the Company upon TellUs receiving the Company’s written notice to that effect and immediately upon an Employee User ceasing to be an employee of the Company.
1.6 a) A User is responsible for maintaining the confidentiality of its User code, when issued, and must not allow any other person to use the User code to access the App. Any loss of confidentiality or unauthorised use should be immediately reported to TellUs and may give grounds for suspension of use of the App by TellUs.
b) Unless attributable to TellUs´s gross negligence, wilful or fraudulent default, the consequences of access to the App by a person other than a registered User shall be borne exclusively by the User who will indemnify and hold harmless TellUs for the consequences of any unauthorised, improper or illegal access/use of the App, including a breach of these LTCS.
1.7a) These LTCS apply to the App and any of the services accessible through the App (“Services”) including any updates or supplements to the App or any Service.
b) These LTCS apply to all the dealings and relations of TellUs and are binding upon all Users, including Employee Users, and third parties, including any offers made by TellUs or a User/third party and all agreements, written, oral, express or implied, with TellUs.
1.8 Terms and conditions of a User /third party shall not apply, even in addition to these LTCS, and any applicability is expressly excluded unless otherwise agreed in writing.
1.9 The present LTCS cancel and replace any previous LTCS, unless otherwise agreed in writing. Any departure from and/or addition to these LTCS shall not be deemed accepted unless previously and expressly agreed by TellUs in writing.
1.10 TellUs may revise these LTCS from time to time. The new LTCS will appear on the GyRate website and a notification displayed on screen. Users will be required to read and accept them to continue their access to the App and use of the Services.
1.11 Updates to the App may be issued from time to time by the store from which the App has been downloaded (“Appstore”) and may require a User to accept any new terms for their continued use of the App or the Services. This may also apply to any changes in the rules and policies (“Appstore Rules”) of the respective Appstore.
1.12 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2. CONSENT TO COLLECT USER DATA. OPERATING REQUIREMENTS
2.2 The User is responsible for ensuring the devices upon which it intends to download and use the App are at all times compatible with the applicable operating requirements of the App and respective Appstore and Appstore Rules.
3. GRANT AND SCOPE OF LICENCE
3.1 In consideration of the User’s agreement and acceptance of these LTCS and any Appstore Rules and subject to TellUs issuing a User code to the User or, upon registration in the case of Employee Users, TellUs grants the User a revocable, non-transferable, non-exclusive licence to use the App until such license is terminated or suspended in accordance with the provisions of these LTCS.
4. RESTRICTIONS ON USE
4.1 Save as may be expressly set out in herein, the User shall not, and shall not cause or permit, directly or indirectly;
a) the App to be copied (in part or in whole) except where such copying is incidental to a normal and authorised use of the App or, where it is necessary, for the purpose of back-up or operational security;
b) the App to be sold, rented, leased, sub-licensed, assigned, distributed, hosted, loaned, translated, transmitted, outsourced, disclosed, merged, adapted, varied or modified, commercially exploited or made available to any third party;
c) the App to be altered, modified in whole or in part or permitted to be or any part of it, to be combined with, or become incorporated in, any other programs;
d) the App to be disassembled, decompiled, reverse-engineered or create derivative works based on the whole or any part of the App or attempt to do any such thing to the fullest extent permitted by applicable law.
e) to refer to the App, TellUs or GyRate in any communication with third parties without TellUs’s prior written consent;
f) provide or otherwise make available the App in whole or in part in any form to any person without TellUs’s prior written consent.
g) The User shall, and shall cause, to:
i) keep all copies of the App secure, and maintain accurate and up-to-date records of the number and locations of all copies of the App,
ii) include TellUs’s copyright notice on all entire and partial copies made of the App on any medium and,
iii) comply with all applicable technology control, laws, directives or regulations, including those relating to Data Privacy and the gathering, use and storage of data as may apply to the use of the App or to the technology used or supported by the App.
5. ACCEPTABLE USE RESTRICTIONS
5.1 The User shall not, and shall not cause or permit, directly or indirectly any other person to:
a) use the App in any unlawful manner, for or in any connection with any unlawful, illegal or harmful purpose, in any manner inconsistent with these LTCS or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App or any operating system;
b) infringe TellUs´s intellectual property rights or those of any third party in relation to the User’s use of the App;
c) transmit via the App any material that is defamatory, offensive or otherwise objectionable in relation to the use of the App, be libellous or maliciously false, infringe any right of confidence including, any right of privacy or right under data protection legislation, be anti-social, injurious or cause offense, unnecessary distress or vexation to any person;
d) use the App in a way that could damage, disable, overburden, impair or compromise TellUs’s systems or security or interfere with other Users or service providers; and
e) collect or gather any information or data to TellUs’s systems transmitted in connection with TellUs’s maintenance or evaluation of the performance of the App.
5.2 A Company shall be responsible for ensuring, at all times:
a) compliance with these LTCS by its Employee Users as of their acceptance and registration and following their de-registration and shall indemnify and hold TellUs harmless from any breach, misuse or abuse of these LTCS by an Employee User, provided such breach, misuse or abuse is not exclusively attributable to the wilful or fraudulent default of TellUs;
b) it has obtained permission from an Employee User to be registered as a User and to download the App on the Employee User’s mobile telephone or handheld device, with all costs for Internet access to be borne by the Company or the Employee User;
c) it has taken all necessary measures to ensure the use of the App by the Employee’s Users and on the devices upon which the App has been downloaded shall, at all times, comply with all applicable Company Rules, Regulations, Directives, internal policies including Codes of Conduct etc., as well as all applicable laws and Appstore Rules.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The User acknowledges that all intellectual property rights in the App, (including modifications, developments and up-dates), the GyRate name or logos, belong to TellUs and that rights in the App are licensed (not sold) to the User and that the User has no rights in, or to, the App, the GyRate name or logos other than as expressly provided for within these LTCS.
6.2 The User accepts and recognises that TellUs is the owner of all the legal and moral rights in the contents, design and artistic work of all material, irrespective of its form, bearing the name of TellUs and/or presented by TellUs, including on its internet site (https://gyrateapp.com) and all the content thereof as well as the GyRate name and logo and the GyRate Application.
6.3 The User acknowledges it has no right to have access to the App in source-code form.
6.4 Any further customisation of the App shall be done in concertation between the User and TellUs in consideration for a fee for TellUs and such other conditions to be negotiated between the parties at the time. The rights over any further customisation of the App shall belong to TellUs unless expressly agreed otherwise between the parties.
7. NO WARRANTY OR SUPPORT
7.1 The User expressly acknowledges and agrees that use of the App is provided at its sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is borne by the User. TellUs will provide reasonable maintenance services in respect of the App in accordance with available resources. Any such services as may be supplied shall be by persons having industry standard professional skills but TellUs shall incur no liability with respect thereto.
7.2 a) To the maximum extent permitted by applicable law, the App is provided “as is” and “as available”, without warranty of any kind, and TellUs hereby disclaims all warranties and conditions with respect to the App, either express, implied or statutory, including, but not limited to, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. TellUs does not warrant against interference with the User’s usage of the App, that the functions or features contained in the App will meet with the User’s requirements, that the operation of the App will be uninterrupted or error-free, or that defects in the App will be corrected. The User recognizes that should it elect to continue use of the App after expiry of the Free Trial Period (“Trial Period”) referred to at cl.9, below, it will have had the opportunity to test the App and its accompanying features and they are acceptable to the User.
b) Any further User customization shall be done in accordance with cl.6.4 above.
7.3 No oral or written information or advice given by TellUs or its authorised agents, representatives shall create a warranty or representation.
8. LIMITATION OF LIABILITY
8.1 The User expressly acknowledges that by its continued use of the App after expiry of the Trial Period, the App and its facilities, features and functions, meet its requirements.
8.2 Other than for wilful or fraudulent default exclusively attributable to it, TellUs shall not be liable to the User or any third party claiming against it whatsoever including, for any loss of profit, loss of business, business interruption, loss of business or commercial opportunity, or any other direct, special, indirect or consequential loss or damage, including to goodwill, loss or corruption of any data, software or database, howsoever arising out of or in connection with the App, these LTCS or under applicable law.
8.3 In any event, TellUs’s maximum aggregate liability arising under or in connection with the App and/or these LTCS whether in contract, tort (including negligence) including for breach of any statutory duty or otherwise), shall in all circumstances be limited to the amount of the one-time access fee referred to at cl.12.1.
8.4 To the fullest extent provided by Swiss or other applicable law, TellUs shall not be in any way liable for personal injury or death arising out of or in connection with the App and the User warrants that it has and will maintain adequate and sufficient insurance coverage in such respect and to cover any damage or loss referred to at cl.8.2 and this cl.8.4.
8.5 These LTCS are solely for the benefit of TellUs and the User and not intended to be for the benefit or enforceable by any third party. The User shall indemnify and hold harmless TellUs from any third party claiming against TellUs, or through the User, on account of any breach by the User of these LTCS or applicable law.
8.6 Any time frames agreed upon by TellUs shall represent its good faith estimates at the time of their making. TellUs shall not be responsible in any manner whatsoever for the consequences of any act, omission or delay, of defective workmanship or materials, attributable to any third-party supplier, (sub)- contractor of goods or services to TellUs.
9. TRIAL PERIOD. SUBSEQUENT USE. SUSPENSION AND TERMINATION OF USE
9.1 TellUs grants the User a free Trial Period to assess the App, expiring thirty (30) days from the date TellUs has supplied the User code to the User at cl.1.5a). TellUs reserves the right to terminate or suspend the User’s access to the App at any time during the Trial Period without incurring any liability.
9.2 Upon expiry of the Trial Period, the User’s access to the App and the license granted under cl.3, shall be automatically terminated and the User’s access code revoked unless the User confirms to TellUs and TellUs receives from the User the one time access fee and administrative fee as referred to at cl.12.1, no later than three (3) working days before the date of expiry of the Trial Period.
9.3 Expiry of the Trial Period shall not affect the continued application of the provisions of these LTCS as per cl.13.10.
9.4 Continued use of the App by the User after the expiry of the Trial Period, in particular, the license granted to the User under cl.3, is subject to the User’s continued compliance with these LTCS which shall continue in force until terminated as follows:
a) by either TellUs or the User with at least fifteen (15) days advance written notification of termination, effective the last day of the month of notification;
b) by TellUs immediately by written notice to the User, if:
i) the User commits, or TellUs reasonably suspects the User has committed, a material or persistent breach of these LTCS which it fails to remedy (if remediable) within three (3) working days after the date of notification requiring the User to do so or,
ii) the User breaches any of cls.4,5 or 6 or, as may otherwise be provided for in these LTCS, in particular, at cl. 11.2 b).
9.5 TellUs may nevertheless and without prejudice to its rights at cl.9.4, in the event of the User breaching, or TellUs reasonably suspecting the User has breached these LTCS, temporarily suspend, (without compensation), User’s access to the App and/or prohibit it from future access to the App.
9.6 TellUs´s termination of the licence granted at cl.3 or its suspension of User access, shall be without prejudice to TellUs´s other rights under these LTCS or any applicable law.
9.7 On expiry of the Trial Period or termination for whatever reason of these LTCS and the license granted herein:
a) all rights granted to the User under these LTCS shall cease. Upon a Company ceasing to be a User, all Employee Users shall also immediately cease to be Users and de-registered;
b) the User shall immediately cease all activities authorised hereunder and pay all outstanding amounts due to TellUs;
c) the User must immediately delete or remove the App from any and all devices upon which it has been downloaded and immediately destroy all copies of the App all and any supports then in the User’s possession, custody or control and certify to TellUs that the User has done so as well as providing such other information in respect of the User’s use of the App to the time of expiry or termination as TellUs may reasonably request;
d) A Company shall cause all its Employee Users to continue to comply with all post-termination surviving provisions of these LTCS.
10.1 At the time of User registration, TellUs and the User will ( and in all cases where the User is a Company) each nominate their respective lead contact person who shall be the preferred source of contact between them in respect of matters arising out of or in connection with these terms and conditions and exchange their contact details.
11. EVENTS OUTSIDE TELLUS’S CONTROL (“EOTUC”)
11.1 TellUs will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by any act or event beyond its reasonable control, including failure of public or private telecommunications networks (“EVENTS OUTSIDE TELLUS’S CONTROL (“EOTUC”).
11.2 If an EOTUC occurs that affects the performance of TellUs’s obligations under this Agreement:
a) TellUs´s obligations hereunder will be suspended and the time for performance of its obligations will be extended for the duration of the EOTUC; and
b) TellUs will use its reasonable endeavours in accordance with its available resources to find a solution by which its obligations hereunder may be performed despite the EOTUC but, should such reasonable efforts not resolve the EOTUC and the EOTUC continues for a period of three (3) consecutive days, TellUs shall have the right to terminate the license granted hereunder with immediate effect without the right for the User to claim for any kind of loss, damage or penalty of whatsoever nature.
12. USER FEE.TERMS OF PAYMENT
12.1 a) An administration fee and one time access fee (each a “User Fee”) shall be paid by the User to TellUs in accordance with cl.9.2. for continued access to the App for any part of the period from the date of expiry of the Trial Period to the last day of the calendar month in which expiry occurred. The administration fee shall be calculated as per sub-clause c), below.
b) No later than the end of each subsequent calendar month, TellUs will issue an administration fee invoice to the User based solely on the User being recorded by TellUs as a registered User at any time and for any length of time during the course of the relevant month.
c) The administrative fee is not subject to any “pro-rating” by TellUs. For example, notwithstanding a User’s only occasional use of the App during the invoiced period.
d) The administrative fee invoice will be based on the ‘per capita” amount appearing in the User Fee Schedule, ( or as otherwise agreed ), multiplied by the number of individual Users recorded by TellUs as registered to use the App during the course of the month to which the invoice relates.
e) Invoices shall be paid in full by the User without set-off or deduction and be received by TellUs within seven (7) working days from the date of the invoice to the bank account detailed on the invoice or by other means of payment agreed between the User and TellUs at the time of User registration at cl.1.3.
12.2 a) User Fees are exclusive of VAT or any other Sales Tax or duty, which shall be added to the invoice at the applicable rate.
b) The User Fees are each subject to change with at least one (1) month’s prior written notice before any change enters into effect.
c) The Schedule of User Fees in force at the date of this version of these LTCS and applicable up to a maximum of ten (10) Users, are set out below.
12.3 Failure to pay an invoice on time and/or in full may result in TellUs terminating or suspending the User’s right of use of the App, as per cls.9.4b) i) or 9.5.
12.4 TellUs shall be under no obligation to reduce “pro-rata” the amount of any administrative fee invoice, irrespective of the circumstances. However, should it elect to do so, it shall be at TellUs’s absolute discretion and in settlement of all and any claims a User may have at any time against TellUs.
12.5 Any fees and costs other than User Fees, for example, those incurred through developing or maintaining customised features of the App for the User or the provision of agreed additional Services to the User, shall be invoiced to the User and paid to TellUs in accordance with this cl.12.
13. FURTHER TERMS AND CONDITIONS. LAW AND JURISDICTION. COSTS. SURVIVORSHIP
13.1 TellUs may transfer its rights and obligations hereunder to another entity under its control or management, but this will not affect the User’s rights under this Agreement.
13.2 The User may only transfer its rights or obligations hereunder to another legal entity or physical person if TellUs agrees in writing beforehand and it shall always be a condition of any such transfer that the original User remains jointly and severally liable with the new User for the performance of their obligations.
13.3 TellUs may refer to the User in TellUs´s advertising /publicity purposes, provided a copy of the proposed advertising/publicity is submitted to the User prior to publication for consent. Such consent shall not be unreasonably withheld.
13.4 If TellUs fails to insist that the User performs any of its obligations hereunder, or if TellUs does not enforce its rights against the User, or if TellUs delays in doing so, that does not constitute a waiver of TellUs´s rights against the User and does not mean that the User does not have to comply with and perform those obligations. If TellUs does waive a default or breach by the User, TellUs will only do so in writing, and that will not mean that TellUs will automatically waive any subsequent default or breach by the User.
13.5 Each of the terms and conditions hereunder operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining terms and conditions will remain in full force and effect. Any deleted part of a term or condition shall be deemed deleted and the rest of the term and condition will continue in effect.
13.6 THESE LTCS THEIR SUBJECT MATTER, IN PARTICULAR, THE LICENSE GRANTED HEREUNDER, LIMITATIONS AND EXCLUSIONS OF LIABILITY, ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH SWISS LAW.
13.7 a) In the event of a dispute between the User and TellUs arising out of or in connection with these LTCS, the parties will use their best efforts to amicably resolve it through the lead contact persons at cl.10.1, with a written request to convene within ten (10) working days and particularising the nature of the dispute.
b) Should no resolution be achieved within three (3) working days from the date of the meeting, either party to the dispute may, within a further ten (10) working days, request mediation in accordance with the Swiss Rules of Commercial Mediation of the Swiss Chamber’ Arbitration Institution in force on the date when the request for mediation was submitted in accordance with these Rules.
c) The seat of the mediation shall be Fribourg, Switzerland.
d) The mediation proceedings shall be conducted in English.
e) If such dispute, controversy or claim has not been fully resolved by Mediation within sixty (60) days from the date when the Mediator has been confirmed or appointed,, the dispute shall be referred to the EXCLUSIVE JURISDICTION OF THE ORDINARY COURTS OF FRIBOURG, CANTON FRIBOURG, SWITZERLAND, without prejudice to recourse to the Swiss Supreme Court and subject however, to TellUs’s right to submit the dispute to any other court of competent jurisdiction and to accord preference, if it elects, to the law applicable in such jurisdiction.
13.8 In the event the User fails to comply with any of its obligations hereunder, all costs incurred by TellUs in obtaining settlement out of court, in mediation or in legal proceedings where judgment is mainly given against the User, shall be for the account of the User, including the fees of third party experts, bailiffs, attorneys, translators, stenographers, meeting rooms, travel, lodging, etc, even if such costs exceed those awarded by the court or conciliator, as the case may be.
13.10 Clauses 2,4,5,6,8,9,10,11,12,13 of these LTCS and this cl.13.10 shall survive expiry of the Trial Period or termination, for whatsoever reason, and remain in full force and effect.
SCHEDULE OF USER FEES AS PER CL.12.
1) One Time Accession Fee: CHF 250.00 (two hundred and fifty).
2) Administrative Fee of CHF 10.00 (ten) per each User registered during the invoiced period.
The One Time Accession Fee and Administrative Fee gives access to the App and are valid for up to a maximum of ten (10) authorised registered Users, beyond which special User Fee rates shall apply.
Corporate Rate One Time Accession Fee and Administrative Fees are available upon request and shall be agreed prior to registration and grant of User code.
Tell Us About It Sarl
Avenue C.-F. Ramuz 92
RC Vaud. Ref: CH-550.1.188.015-1
VAT No: CHE-422.926.244
LTCS v. 2020/01.Tell Us About It Sarl 2020 All Rights Reserved