Article 1. Purpose
The purpose of these general terms and conditions is to regulate the contractual conditions according to which the limited liability company EFOLIX S.à.r.l., established and having its registered office at 5, rue Dr.Herr, L – 9048 Ettelbruck (hereinafter «EFOLIX»), provides its services to Users.
EFOLIX provides a digital solution for professionals consisting of a Software Application.
Article 2. Definitions
In these General Terms, capitalized terms and expressions shall, unless otherwise stated, have the following meaning.
User: natural person and/or legal entity having the quality of a professional and using the Software Application.
General Terms: The present document which constitutes the framework contractual conditions applicable to the Software Application.
Confidential information: means in relation to a Party, confidential and proprietary information (whether in written, oral, or electronic form) that: (a) is by its nature confidential; and/or (b) is designated by that Party as confidential; or (c) the other Party knows or ought to know is confidential; and includes, but is not limited to, trade secrets, know-how, inventions, techniques, processes, software programs and other information technology (IT) related information, documentation, schematics, procedures, contracts, Customer databases, financial information, budgets, sales, marketing, insurance secrets, anti-money laundering and compliance data, ideas, strategies, designs, projections, business plans, unpublished information relating to the Intellectual Property Rights of either party, Personal Data, and all communications between the parties;
Contract: all the contractual documents including General Terms and annexes governing the relationship between the User and EFOLIX within the framework of the Software Application provided by EFOLIX.
Force majeure: means the actual occurrence of any act/event which is unforeseeable, insurmountable and beyond the control of the Party invoking it and which prevents the said Party from performing all or part of its obligations. Force majeure does not include events such as the insolvency of a Party, events involving prior, concurrent or subsequent fault, strikes or other labour disputes. The Parties shall refer to Luxembourg case law for the interpretation of a possible case of force majeure.
Installation: generic term for the implementation and testing of Hardware and/or Software. Installation of Software consists exclusively of loading the Software modules onto the Hardware in accordance with the Installation instructions provided by the Software publisher.
Software Application: means the software, databases, websites, programs, and/or any other applications owned and hosted by EFOLIX, including all upgrades thereto, as further described in Annex 1 (Description of Software Application);
Parties: EFOLIX and the User.
Article 3. Software Application
EFOLIX shall provide the Software Application on a secure, remote and fully operational basis, as detailed in Annex 1 (Description of Software Application).
Article 4. License
EFOLIX hereby grants to the User a non-exclusive license to use the Software Application through any number of supported web-browsers in any location, in accordance with the terms of this General Terms.
The Software Applications shall be used by the User in accordance with the terms of these General Terms and in accordance with any specifications laid down by EFOLIX in its documentation, provided that such documentation is provided to the User.
The User shall not be entitled to sub-license the Software Application to contractors, clients or any third party.
The User shall not have the right to reverse engineer, decompile, modify or in any manner whatsoever manipulate the source code of the Software Application or any part thereof. The license is free of charge for the User.
Article 5. Obligations and liabilities of the Parties
EFOLIX undertakes to take all the care and diligence necessary to provide a quality service in accordance with the practices of the profession and the state of the art, to have the services performed by qualified and experienced personnel, and to take all reasonable precautions in the performance of the services throughout the contractual relationship. EFOLIX is only responsible for an obligation of means.
The User assumes full responsibility for the operation, proper functioning and availability of the Software Application.
The User warrants that the hardware installations and all other rules and conditions required for any implementation of the Software Application are carried out in a professional manner and in accordance with the legal provisions and standards to which the User is subject.
It is the User’s responsibility to ensure a backup of its data files, application software and operating systems, including all configuration files, before any intervention by EFOLIX and without being expressly invited to do so by EFOLIX. If the User does not comply with this obligation, the User waives EFOLIX’s liability in the event of destruction, impossibility of use or loss of data files, application software, operating systems or any parameter setting file or other damage resulting from unintentional manipulation by EFOLIX, except in the event of gross negligence or willful misconduct from EFOLIX.
EFOLIX shall inform the User of any known operational risks and arising from its intervention on the Software Application provided before any intervention.
In the event of gross negligence or willful misconduct from EFOLIX with regard to the Software Application provided by EFOLIX to the User, the liability of EFOLIX shall be limited to the damage of which its gross negligence is the direct cause, and EFOLIX shall in no case be liable for indirect damage.
The User undertakes to comply with the specifications of EFOLIX with regard to the installation, use, configuration and environment of the Software Application provided by EFOLIX.
In the event of an accident occurring during the provision of the Software Application, which is not the result of gross negligence, willful misconduct or fraud from EFOLIX, at any time or for any reason whatsoever, the liability of EFOLIX shall be strictly limited to the damage and loss caused directly by EFOLIX and for the Software Application installed.
Consequently, EFOLIX shall not be held liable for any damage of any nature whatsoever caused to the User’s hardware or Software Application, except in the case of gross negligence or willful misconduct from EFOLIX.
As a provider of the Software Application, EFOLIX is not responsible for the contents or any information or data hosted by the User on its servers that could violate a legal provision or the rights of third parties.
Article 6. Term and termination
The Contract will start as soon as the Software Application is installed by the User. The Contract is concluded for an undetermined period of time and may be terminated by the User at any time.
Article 7. Indemnification
The User shall indemnify EFOLIX from and against all losses, claims, costs, liabilities, or expenses (including court costs and attorney fees), actually suffered and incurred by EFOLIX due to the User’s fault, negligence, fraud, or breach of any other obligations hereunder.
Article 8. Data protection
Each Party shall comply with its obligations under the applicable data protection regulations and in particular the General Data Protection Regulation (Regulation (EU) 2016/679 – «GDPR») in respect of personal data processed in connection with the Contract.
The User acknowledges that in the context of the provision of the Software Application, EFOLIX will be required to collect and process personal data of the User. In these circumstances, EFOLIX acts as a data controller.
Details on the processing of personal data are included in the “Privacy Notice”, which can be found here: [link]. The Privacy Notice may be updated from time to time.
Article 9. Intellectual property
The User does not acquire any intellectual property rights over the Software Application, nor any rights over the tools, methods and know-how used by EFOLIX within the framework of the Contract. The User does not acquire any other rights than those conferred by the Contract.
Consequently, EFOLIX shall remain the owner of all software developments and documentation provided to the User, with all intellectual property rights attached thereto, in the broadest sense, for the entire duration of the protection to which said software developments and documentation may be subject in all countries where protection may be obtained.
The User shall only have a simple right to use the Software Application. EFOLIX only grants the User a personal, non-transferable and non-exclusive right of use.
EFOLIX expressly retains the right to use, exploit, reproduce, represent and market all software developments and all documentation or advice, in any form whatsoever, within the framework of its activity, in particular, to create, develop, exploit and market any software solution.
Article 10. Miscellaneous
Severability. In the event that any or more of the provisions of these General Terms is determined to be invalid, illegal, or unenforceable in any respect as to one or more of the parties, all remaining provisions shall nevertheless remain effective and binding on the Parties thereto and the validity, legality, and enforceability thereof shall not be affected or impaired thereby. If any such provision is held to be illegal, invalid, or unenforceable, there will be deemed added in lieu thereof a provision as similar in terms to such provision as is possible, that is legal, valid, and enforceable.
Integrality of agreements. The General Terms together with its Annexes, contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements or understandings, whether written or oral, with respect to the same subject matter that are still in force between the Parties.
Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events as Force Majeure. Upon the occurrence of a Force Majeure event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure event for up to thirty (30) days. After the expiration of this time period the other Party shall have the right to terminate this Contract with immediate effect.
Assignment. The User may not assign this Contract, or any rights or obligations herein.
Amendments. These General Terms may not be modified, amended, or in any way altered, except by a written agreement signed by both Parties.
Waiver. In no event shall either Party’s failure to exercise, nor shall any delay in exercising, any right, power, or privilege hereunder operate as a waiver thereof.
Language. The English version of the General Terms shall apply when the language of communication with the User is English.
Article 11. Governing law and jurisdiction
The Contract (and any dispute, controversy, proceedings or claims of whatsoever nature arising out or in any way relating to the Contract) shall be exclusively governed by and construed in all respects in accordance with Luxembourg law.
Any dispute, controversy, proceedings or claims of whatsoever nature arising out or in any way relating to the Contract shall be subject to the exclusive jurisdiction of the courts of Luxembourg.z