Thank you for using Phonemos by linkyard ltd.! We are excited to have you here.
These Phonemos Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of the Phonemos cloud product (Software-as-a-Service). These Terms are between you (“Customer”) and linkyard ltd. (“linkyard” or “Provider”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that:
you have full legal authority to bind your employer or such entity to these Terms;
you have read and understand these Terms; and
you agree to these Terms on behalf of the party that you represent.
If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you nor use or access a Phonemos subscription set up for you. Please note that if you sign up using an email address from your employer or another entity, your actions will bind your employer or that entity to these terms and the word “you” will refer to your employer or that entity.
These terms do not have to be signed in order to be binding. You indicate you assent to these Terms by clicking “I agree” at the time you register for Phonemos, by placing an order or paying our invoice or by using and accessing the product, whichever is earlier.
1. Preamble
1.1 The Provider is the provider of Phonemos, a software product provided to you as a Software-as-a-Service (“SaaS”) service. The Customer avails itself of the SaaS services, furnished by the Provider, for the duration of the agreement.
1.2 The present agreement regulates the Provider’s SaaS services which the Provider provides to the Customer.
2. Scope of the terms
2.1 Together with the confirmed offer, the Service Level Agreement (SLA) and any other contractual documents, these Terms constitute the final agreement (hereinafter referred to as "Agreement") between the customer and linkyard ltd. These Terms are an integral part of all offers, order confirmations and invoices.
2.2 The following Terms apply between the Customer and the Provider, unless otherwise specified in individual cases, mandatorily prescribed by law or expressly agreed otherwise in writing by the parties. Furthermore, by using the services of the Provider, Customers and users agree to these Terms.
3. General subject of the Terms
3.1 This agreement applies to the use of the Phonemos Software in accordance with the current product description as a cloud offer. Phonemos is provided to the Customer by the Provider as SaaS. This includes, among other things, the provision of licences and the cloud services by the Provider to the Customer. The Customer is enabled to use the software stored and running on the servers of the Provider or a service provider commissioned by the Provider via an internet connection for his own purposes during the term of this contract.
3.2 These Terms are applicable to one or more Phonemos subscriptions (“Subscription”), each having individually applicable billing periods, pricing plans or number of users. Each Subscription may be terminated individually, though dependencies between Subscriptions may exist in special circumstances.
3.4 These Terms shall apply exclusively. The Customer's Terms of Service shall not apply. Counter-confirmations by the customer with reference to his own Terms and Conditions are expressly rejected.
3.5 Phonemos may not be used to store or post content that is unlawful, threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another's privacy, tortuous, obscene, vulgar, pornographic, profane, contains or depicts nudity, sexual activity or is otherwise inappropriate or illegal.
3.6 All users of the Customer working with Phonemos must follow the rules of conduct and guidelines for permitted use set out in this Section 3 ("General subject of the terms"). If the Customer breaches this policy or any other provision of this Agreement, linkyard is entitled to suspend or terminate the Customer's account immediately and without prior notice, which shall not affect the Customer's obligations under this Agreement.
4 License management
4.1 The Provider is obligated to obtain all the requisite licenses or subscriptions for the Customer required for fulfilling the present purpose of the agreement. In so doing, the Provider either produces the license directly and acts as licensor or, in case of third party components, acts as a middleman for concluding an agreement between the Customer and the Licensor, without itself being a party to the licensing agreement. The execution of such licensing agreements, namely the payment of the licensing or subscription fees, is done through the Provider.
5 System environments
5.1 The Provider shall provide a fully licensed environment for production use, the scope of which shall be determined on the basis of the subscription plan set out in the signed Offer.
5.2 On request, the Provider will furnish a temporary on demand test environment to conduct integration tests or similar test types. For resource optimization, the test environment is automatically stopped after several hours of non-use. The Customer can request reactivation of the test environment.
5.3 linkyard may add new features to its Phonemos, remove features, suspend modules or discontinue them permanently.
6 System management, support and bugfixing
6.1 Restrictions or impairments of the services provided may arise which are beyond the control of the provider. This includes, in particular, actions by third parties not acting on behalf of the provider, technical conditions of the Internet that cannot be influenced by the provider, and force majeure. The hardware and software and technical infrastructure used by the Customer may also have an influence on the services of the Provider. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the Provider, this shall have no effect on the contractual conformity of the services provided.
6.2 Fault management and corrective maintenance is included in every subscription plan. In the Business and Enterprise subscription plans, up to one hour of support services per month is also included. These hours cannot be cumulated. Additional product-related consulting and support services are charged at the rate specified in your contract or quote.
6.3 The Provider offers different options regarding service level (standby times/response times/system availability), backup plans and business continuity plans. Every Subscription plan includes a specific SLA level, but these can be upgraded as a paid option. The different options can be found in the Service Level Agreement (SLA), which forms an integral part of the agreement together with the signed offer and this document.
6.4 For clarification purposes, it is noted that the response times listed in the SLA refer exclusively to fault reports and support requests from the customer which are reported via the Provider's ticketing portal (https://servicedesk.linkyard.ch).
7 Duties of the Customer
7.1 The Customer shall support the Provider as far as reasonable in the fulfilment of the Provider's obligations under this Agreement. In the event of failure to cooperate or in the event of the Customer or third parties causing disruptions for which the Customer is responsible, the Provider shall be free to refuse the corresponding additional expenditure or to invoice the corresponding additional expenditure on a time and material basis.
7.2 Subject to these Terms and during the applicable Subscription Term, the customer may access and use the Cloud Products for his own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this Section 7.2 are non-exclusive, non-sublicensable and non-transferable.
7.3 Restrictions: Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of Phonemos; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to Phonemos to a third party; (c) use Phonemos for the benefit of any third party; (d) incorporate Phonemos into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in Phonemos intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to Phonemos, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in Phonemos; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of Phonemos; or (j) encourage or assist any third party to do any of the foregoing.
8 Payment modalities and price
8.1 The price owed by the customer for a Phonemos instance is composed of:
A base fee for one Phonemos instance including one site, 100 GB if storage, per month
A fee for editor licences, per user and month
Optional: a fee per additional site, per month
Optional: a fee per additional storage space provided, per month
Optional: a fee per additional viewer licences, per user and month
Optional: a fee to unlock specific optional features, per month
Optional: fees covering other consumption-based charges, e.g. if the number of characters translated exceeds the amount included in the base fee
One-off fees, e.g. support, integration, migration
8.2 The total price can be paid either monthly, by credit card only, or annually, by wire transfer or credit card. For non-DACH countries, wire transfer can only be accepted for payments over CHF 5'000. Wire transfer invoices are due within 30 days net.
8.3 Whether the price is paid annually or monthly also determines the length of the individual subscription period.
8.4 Monthly prices are invoiced at the end of a subscription month based on usage.
8.5 Annual prices are invoiced at the start of a subscription period for the full year. Adjustments within the subscription period are invoiced when activated until the end of the current subscription period.
8.6 Advertised prices do not include VAT.
9 Liability of the provider
9.1 The Provider's liability for any damage on the part of the Client or third parties is excluded to the extent permitted by law. The exclusion refers both to damages incurred directly by the customer and to claims for damages by third parties against the customer.
10 Data protection and confidentiality
10.1 The Customer is responsible for the data processing executed through Phonemos (GDPR: "data controller"). All content uploaded and stored in a Phonemos instance is the property of the customer.
10.2 The provider ensures GDPR compliance as a data processor.
10.3 The parties shall ensure that they comply with all requirements of data protection law. In particular, the Customer shall ensure that it obtains all necessary consents for data processing from persons whose personal data is processed. In the event of non-compliance, he shall indemnify the Provider in the event of claims by third parties.
10.4 The Provider is obliged to
inform the Customer as soon as possible during the term of the contract, if known, of any access to personal data by public authorities or unauthorized third parties, and
after completion of the provision of the Processing Services, to either delete or return all data at the Customer's option.
10.5 Mandatory law which conflicts with the aforementioned obligations is reserved.
10.6 Since it cannot be ruled out that the Provider will have access to personal data of the Customer or third parties, the Parties agree on a Data Processing Agreement (DPA) on order.
10.7 The Parties undertake to keep confidential any facts, information and data, including related documents, which become known to them in connection with the contractual relationship and which are neither publicly known nor generally accessible ("Confidential Information"). Confidential Information shall also include analyses, summaries and extracts prepared on the basis of Confidential Data.
10.8 Each Party shall ensure that its personnel and third parties engaged by it (including their personnel) are required to maintain the confidentiality of Confidential Information entrusted to them or coming to their knowledge in the course of their work.
10.9 The disclosure of Confidential Information requires the prior written consent of the other party. However, the Client is permitted to disclose Confidential Information internally within its enterprise structure without the Provider's consent. The Provider is permitted to disclose Confidential Information internally within its enterprise structure as well as to subcontractors approved by the Customer without the Customer's consent, provided that this is necessary for the performance of the service and the recipients have entered into corresponding confidentiality obligations in writing.
10.10 The confidentiality obligations shall continue to apply after termination of the contractual relationship or after performance of the agreed services.
11 Duration of the agreement and change of the scope of services
11.1 The contract is concluded for an indefinite period.
11.2 Subscriptions can be cancelled at the end of a subscription period (cf. Section 8.3) without a notice period.
11.3 Downgrades (e.g. number of licenses) can only be made at the end of a subscription period.
11.4 Upgrades can be made at any time.
11.5 The contract may be terminated extraordinarily at any time for good cause. Important reasons may include, in particular, infringements of Sections 3.5 and 7.3.
12 Contractual components
12.1 The integrated components of this contract are in descending order of priority:
custom service contracts (if present)
the signed offer
these terms of service (the present contract document)
13. Applicable law and place of jurisdiction
13.1 The court responsible for the location of the Provider has exclusive jurisdiction for all disputes arising from this contract, unless another court has exclusive jurisdiction based on mandatory legal provisions.
13.2 This contract is governed exclusively by Swiss law.
14. Final clauses
14.1 In the event of contradictions, the documents with a higher ranking always take precedence over the documents with a lower ranking. If there are several versions of these documents, documents that are more recent in time take precedence over older documents.
14.2 Should a provision of this contract be invalid or should the contract contain a loophole, the legal validity of the remaining provisions shall remain unaffected. In place of the invalid provision or the loophole, a valid provision shall be agreed which comes as close as possible to the economic purpose intended by the parties.