General terms and conditions
1. What Looping is
Looping is a web-based platform that offers companies the opportunity to build and expand a closed community. Information (especially prototypes, designs, documents, further ideas, all following: "contents") can be uploaded to the platform and feedback can be obtained quickly and easily.
2. Contracting parties
Creaholic SA, Zentralstrasse 115, CH-2503 Biel/Bienne, UID CHE-103.710.386 (hereinafter: "Creaholic"), makes the platform / software (both hereinafter: "Looping") available to the customer under www.looping.com/en/ (hereinafter: "website") and operates the platform. Creaholic is a contractual partner of the company (hereinafter: "customer") which wishes to make Looping available to its employees and - if desired by the customer and to a reduced extent - to external persons (hereinafter: "authorized persons").
3. Subject of the contract
The subject of the contract is the granting of a license for the use of the Looping software on the Looping platform in accordance with the following terms and conditions and in accordance with the specific contract concluded between Creaholic and the customer.
The functionalities of Looping are made available via SaaS (Software as a service) in a cloud. It is not possible to install the software locally at the customer's site.
Creaholic reserves the right to provide additional functionalities with which external persons can also be invited by the customer and gain access to the platform.
4. Conclusion of contract
4.1 General information
The presentation of Looping on the website is a non-binding request from Creaholic. The binding request to conclude a contract is submitted by the customer, who accepts these general terms and conditions and the price plan at the time of application.
The general terms and conditions and the price plan form an integral part of the contract. The former regardless of whether the customer concludes a contract for the time-limited and free trial version or for the paid full version. Creaholic is entitled to rely on the legality of the signatures provided, but reserves the right at any time to request further details regarding the identity of the customer or the signature authority of the responsible persons, but is not obliged to do so.
If the customer wishes a personal offer from Creaholic, this will be sent to him together with these general terms and conditions. In this case, the contract is concluded with the countersignature of the offer and the associated acceptance of the general terms and conditions and the price plan.
Creaholic is free to reject an application by the customer to conclude a contract without giving reasons.
4.2 Free trial version
The contract for the free trial version ends upon completion of the specified trial period without cancellation. There is no automatic conversion into a paid subscription. After the free trial period has expired and in the event of a follow-up contract not being concluded, the customer shall no longer be entitled to the data accumulated during the trial period.
4.3 Chargeable version
If you are interested in a paid subscription, either Creaholic submits a personal offer to the customer, or the customer submits his offer for a subscription listed on the website. The contract is then concluded with the acceptance of the other party.
Looping is available to the customer immediately after conclusion of the contract. In the absence of any provision to the contrary in the contract, the fee-based contracts are concluded for an indefinite period of time. The period of cancellation is one month for the customer and three months for Creaholic at the end of the one-month billing period. The cancellation must be made in writing (letter or e-mail) or - if provided by Creaholic - via an online function designed for this purpose.
Creaholic expressly reserves the right to cancel the contract with immediate effect for important reasons, in particular as a result of the breach of contractual obligations by the customer.
5. Obligations of the customer
5.1 Creating the corporate community
The customer creates his company community in which an employee of the customer registers with his company e-mail. Creaholic reserves the right, but is not obliged, to request further information at any time regarding the identity of the customer or the signature authority of the responsible persons.
The customer's employees can register with their company e-mail address and thereby become community members. Persons who are not part of the company cannot become community members and therefore do not see any contents of the Looping platform. However, the customer may invite external persons to provide feedback on individual prototypes. In this case, these prototypes are visible to persons outside the company.
The customer is responsible for ensuring that the persons authorized by him keep the access data secure and secret. If the customer suspects that unauthorized access has taken place, he must inform Creaholic immediately.
5.2 Authorization of authorized persons
The customer is responsible for ensuring that only persons authorized by him have access to the Community.
If the e-mail address of the community members changes or is no longer active, they must update their account accordingly.
5.3 Protection of IP rights / confidentiality obligations
The customer is solely responsible for ensuring that the publication of information on the platform does not infringe his own or third party industrial property rights and / or his own or third party rights (e.g. to patent application, etc.). He is obliged to inform the persons authorised by him accordingly and is responsible for the behaviour of his employees / authorised persons. The same applies to legal or contractual confidentiality obligations which may prevent publication on the platform.
5.4 No inadmissible use
The customer is responsible for ensuring that the use of the platform by him and the persons authorized by him is made only for lawful purposes and that, in particular, the upload of the following content or the performance of the following actions is not permitted:
- Honour-violating, pornographic, violence-glorifying contents as well as illegal and immoral contents in general
- Unauthorized use and distribution of content in violation of better rights of third parties or of Creaholic, in particular intellectual property rights (copyrights, trademark rights, design rights and patent rights)
- Violations of data protection legislation, personal rights and legal or contractual confidentiality obligations
- Acts which are to be qualified as anti-competitive in the sense of the Federal Act on Unfair Competition ("Bundesgesetzes über den unlauteren Wettbewerb")
- Use of files and / or programs which serve to impair and / or destroy software and hardware (in particular virus programs, Trojans, etc.) and / or which may impair the availability of the platform
- Illegal use of the Looping Software
5.5 Indemnification / blocking of access
If a third party asserts claims against Creaholic in connection with breaches of the customer's obligations, the customer shall indemnify Creaholic in full.
Creaholic has the right to (temporarily) block the customer's access to Looping on suspicion of inadmissible actions and / or breach of further contractual obligations. However, Creaholic is under no obligation to search for such content and to monitor it accordingly.
6. Licensing of the Looping software / rights
Creaholic is the owner of the intellectual property rights or has the necessary rights to provide the Looping software as SaaS to the customer. The customer receives a non-exclusive, non-transferable and non-sublicensable license, limited to the duration of the contract, to use the software on the platform or to make it available for use by authorized persons.
7. Operation and use of the Looping service
Creaholic operates Looping and aims for a continuous operating time (7x24h) subject to the scheduled maintenance windows. Longer maintenance windows (expected duration of more than one day) will be communicated to the customer in advance and operational disturbances will be repaired as soon as possible. However, permanent, trouble-free operation is not guaranteed.
The operating services also include the performance of a daily data backup. In the event of data loss on the part of the customer, Creaholic will restore the data on request in accordance with the data backup of the previous day. The customer is responsible for further data backups.
If the loss of data is due to the fault of the customer (including persons authorised by the customer), third party fault or force majeure, Creaholic will charge the customer for the restoration on a time and material basis at its current hourly rates. Further damage to the customer in the event of data loss caused by Looping cannot be claimed. The restoration of a back-up of the information can be requested and delivered at the request of the customer against compensation.
Creaholic is expressly entitled to engage third parties in the provision of its services (in particular regarding the operation of Looping in the Cloud).
Creaholic provides e-mail support at the following e-mail address: [email protected] Creaholic will do its best to answer your questions as soon as possible. As a rule, a reply is sent within one business day.
Creaholic warrants that the Looping software can be used to upload content and obtain feedback, provided that the conditions described herein are met. Creaholic is not responsible for third-party software (in particular software required locally by the customer, such as the operating system or browser).
The customer is responsible for the careful and proper use of Looping and for checking the results issued. Creaholic does not assume any warranty in this respect.
For the use of Looping, costs (license fees and operating costs) are incurred on the basis of the maximum possible number of users. The prices are stated on www.looping.com/en/pricing/ and are in Swiss francs excluding VAT. The fees will be invoiced for the previous month, with a payment period of 30 days. After this period has expired, Creaholic is entitled, after setting a short grace period, to block the Looping Service for the customer at any time in the event of non-payment and to delete the already existing data. For billing purposes, the Creaholic checks the number of users.
The maximum number of community members on the Looping platform can be increased or decreased by the customer at any time. If there is a change, the account will be adjusted accordingly from the following month. The customer can add or remove users in order to maintain the specified size of the Looping platform. If the number of users specified in the contract is exceeded, Creaholic will inform the customer and the monthly costs will be increased in accordance with the price plan (as shown on www.looping.com/en/pricing/).
Creaholic reserves the right to adjust fees in the future or to switch to another price plan for the use of Looping. In this case, customers will be informed in advance. Unless otherwise reported by the customer within 30 days of receipt, the new fees for future services will be deemed approved.
11. Confidentiality / information security / data protection
Creaholic is obliged to comply with Swiss data protection legislation and, if applicable, European data protection legislation. If the customer allows authorized persons access to Looping from abroad, he is solely responsible for this process and any consequences. Furthermore, the customer is responsible for the obligations according to section 5.
Contents uploaded by the customer and authorized persons (prototypes) may be personal data within the meaning of the Data Protection Act. Creaholic protects this personal data and all other data against unauthorized processing by means of appropriate technical and organizational measures. The Looping software is operated by Creaholic in a secure Swisscom data centre in Switzerland, which is certified in accordance with ISO 9001, ISO 14001, ISO/IEC 20000 and ISO/IEC 27001.
Creaholic processes the data (profile data) and content provided by the customer and the authorised person solely for the purpose of fulfilling the contract. Furthermore, Creaholic does not take any notice of the data and contents of the customer. There are the following exceptions to these two principles:
- Inspection of the data and content is necessary for the fulfilment of the contract, e.g. within the scope of support.
- The customer explicitly wishes Creaholic to have access to the data and contents or to process them in order to support the customer in working with Looping.
- Creaholic may use data about the way in which Looping is used for the further development of the Looping software.
Creaholic expressly warrants that the data and content will be kept confidential and adequately protected. It will not be made accessible to third parties, with the exception of third parties engaged by Creaholic. However, these third parties are bound by the present obligations.
During the duration and after expiration of the contract, Creaholic is entitled to include the project or mandate in its reference list, taking into account the applicable contract and the business interests of the customer. Each party may publish the project in relevant journals and subject-specific magazines and use the results of the project to participate in technological competitions, provided that such publication does not endanger the registration of any intellectual property rights.
The authorised persons will be informed about the handling of their data and their rights by means of data protection guidelines. So that they can use Looping, they are requested to give their explicit consent to the handling of their data at the beginning of the use (registration).
12. Rights to uploaded contents
The rights to the uploaded contents remain with the customer. He is responsible for ensuring that the upload of such contents is permitted. However, the customer grants Creaholic the right to store such contents and make them available to the members of the customer's community within the scope of Looping.
Within the context of development work, data backups can be created in individual cases, which can also be temporarily stored outside Swisscom's computer centres.
According to the basic EU data protection regulation, authorized persons have the right to have their data and contents deleted by Creaholic. Creaholic fulfils this obligation at the request of the authorised person without having the obligation to inform the customer.
The liability of Creaholic is limited to gross negligence and intentional damage. In particular, Creaholic assumes no liability for direct or indirect pecuniary loss that could be caused by the use of the Looping Software. Creaholic shall not be liable for the auxiliary personnel deployed by it.
The customer is responsible for ensuring that the persons authorized by him do not make any unauthorized use of the software, that they do not violate the rights of third parties or the rights of Creaholic (cf. in particular section 5) and that they do not share any confidential documents on Looping. Creaholic is not liable for any resulting damage.
If Creaholic is directly confronted with third-party claims, the customer shall indemnify Creaholic immediately and in full. In this case Creaholic will immediately block the customer's access to the platform.
14. Consequences of the termination of the contract
The customer and / or his authorized persons can download the data stored on Looping via the normal Looping platform functions during the period of notice and up to 3 months after the end of the contract. Creaholic is not obliged to make the data available to the customer in any other form. Unless otherwise agreed with the customer, the data will be stored at Creaholic for 12 months after expiry of the contract and can be delivered for a fee upon request. The data will be deleted at the end of these 12 months. Legal archiving obligations remain reserved.
After termination of the contract, the customer is no longer entitled to use the platform.
15. General conditions
Should one or more provisions of these general terms and conditions prove to be invalid, it shall be deemed agreed that what corresponds lawfully to the intended purpose or comes as close as possible to it. The same applies in the case of a gap. The remaining provisions of the general terms and conditions shall remain valid.
The customer will be notified in writing (i.e. by letter or e-mail) of any changes to these general terms and conditions and shall be deemed to have accepted them unless the customer rejects them within 30 days of receipt.
The assignment of rights and obligations of the customer from this contract require the prior written consent of Creaholic. However, Creaholic is entitled to assign the rights and obligations without the user's consent.
Creaholic reserves the right to send the members of the customer's community information about the product directly by e-mail. These newsletters can be cancelled individually by the recipients.
16. Applicable law, jurisdiction, miscellaneous
The exclusive place of jurisdiction for any disputes arising from or on the basis of the general terms and conditions or the contract is Biel/Bienne. Only Swiss law is applicable, excluding conflict of laws provisions.
Version 1.1, May 2018