Terms & Conditions
iKentoo Terms and Conditions edition December 2nd, 2014
These General Terms and Conditions apply to all services and to the use, full or partial, of the services provided by iKentoo.
On principle, they govern relations between iKentoo, its Customers, and Third Parties, barring any express, formal written derogation. These Terms and Conditions cancel and replace any oral or written agreements that the parties may have been previously established in this regard.
The current version of the General Terms and Conditions has been published on the following website: www.ikentoo.com
ART. 1. DEFINITIONS
“IKentoo”: iKentoo SA, enterprise grade POS solution provider and software editor.
“Customer”: A natural person or corporate body that makes use of a format that has been marketed and/or uses a service developed by iKentoo.
“Third Parties”: Any natural persons or corporate bodies that may be led to collaborate with iKentoo and/or the Customer.
“Services”: All the services developed and/or marketed by iKentoo. “Technical activation”: The activation of the POS services by iKentoo.
“Service activation”: Delivery of the service to the Customer after the technical activation.
“Access”: The Customer’s access to iKentoo’s services.
“Network”: All facilities ensuring the transmission and/or routing of telecommunications signals or data, as well as the exchange of information, between this network’s endpoints. The fact that the network is internal, local, public, private, or any other type is irrelevant; this term is used for Internet, Intranet, and Extranet networks.
“Server”: Computer system used to run the administration software and control access to the network and its resources.
“Data”: Any type of information, primarily texts, images, sounds, videos, etc. travelling over a network and/or stored on a server.
“Information System”: any system used to create, send, receive, store or process data.
ART. 2. SERVICES PROVIDED BY iKentoo
iKentoo shall develop and/or provide POS solutions and computing services.
These services are primarily: connectivity, hosting, server leasing and the development of POS applications and related services.
iKentoo takes great care to ensure the quality and security of its infrastructures, primarily through the use of resilient redundant system architecture guaranteeing a high level of security and availability of service.
iKentoo endeavors to provide its Customers with the latest technology in a continuous effort to improve the quality and availability of the services provided.
Within the context of current technical and operational possibilities, iKentoo shall ensure additional services insofar as the Customer consequently provides suitable facilities. The availabilities of various services are specified in other contractual provisions.
ART. 3. NETWORK MAINTENANCE
iKentoo shall ensure appropriate maintenance procedures for its network in accordance with the state of the art. During hours of operation, iKentoo shall repair any failures that pertain to its sphere of influence within an appropriate time frame with the means that iKentoo shall be reasonably expected to have.
If iKentoo’s intervention is requested for a failure brought on by a cause not found on the network, the costs of these repairs shall be borne by the Customer.
ART. 4. SECURITY
iKentoo pays particular attention to security when developing its services. All data transfer between the elements installed at the client and the iKentoo servers is encrypted. Nevertheless the Customer acknowledges that, despite the best efforts of iKentoo, its use of the most up-to-date technology and compliance with the security standards, it is impossible to guarantee absolute security and fault- free operation of the systems used.
iKentoo reserves the right to use other security features or to change the Customer’s user identification.
ART. 5. USE OF THIRD PARTIES
In order to comply with its contractual commitments, iKentoo may, at any time, make use of Third Parties. In this event, they will be subject to these General Terms and Conditions.
ART. 6. THE CUSTOMER’S OBLIGATIONS
You, the Customer, are responsible for the configuration of your information system. You undertake to install and maintain a network environment that supports the connection between the various elements to the iKentoo system (cash register, printers for example), as well as between the elements installed on the client’s network and the iKentoo servers.
Passwords and responsibility for access
The Customer is responsible for all damage that may be incurred as a result of others (including colleagues and employees) using the access data, and for the content of the information that the Customer or others send or process using the services of iKentoo.
The Customer expressly undertakes to ensure that the security features and the user name and password are kept confidential, and that these features are not misused by unauthorised persons. The password in particular should never be written down without protection or be accessible to others. If the password or user name is lost, the Customer must contact iKentoo immediately.
Furthermore, business customers must ensure that their staff members erase their user names and passwords when significant changes occur (e.g. departure or change of status within the company).
To be able to use all iKentoo’s services, the Customer must, for as long as the contract with iKentoo lasts, install all updates available on the Apple’s App Store for the POS system used, install the software versions and/or hardware recommended by iKentoo in the minimum requisite configurations and update them whenever necessary.
The Customer undertakes to use software from trusted sources and to take all appropriate measures to protect against computer attacks. He must in particular only install the iKentoo POS from the Apple’s App Store.
The Customer is solely responsible for access to the services of iKentoo and the related settings.
The Customer agrees to provide full and accurate contact details when signing up to the iKentoo service. Moreover, the Customer is required to display either his business name or his legal name on all documents generated by the iKentoo service (printed receipts and reports).
The customer is expected to keep a copy of the reports generated with the iKentoo service on a regular basis. iKentoo cannot be held responsible for loss of data in case of service breach or failure.
PART. 7. DELIVERY OF OBJECTS, RETENTION OF PROPERTY RIGHTS, COMPLAINTS, AND GUARANTEE
At the time of reception, it is up to the Customer to verify the condition and quantity of the hardware, which is shipped with a packing slip from iKentoo and, if necessary, to lodge any objections no later than forty- eight (48) hours after the time of reception.
The objects sent to the Customer shall remain the property of iKentoo until the established price and all corresponding taxes are paid in full. If the Customer has defaulted on his/her payment, iKentoo shall, after an injunction is issued, be legally entitled to demand that the objects must be returned at the Customer’s expense.
The guarantee shall be valid only in cases where interventions and/or repairs are carried out by iKentoo and/or the manufacturer. When the object that has been purchased is defective, iKentoo may repair the defect or provide the Customer with a suitable replacement. All other claims are expressly excluded.
However, iKentoo grants no warranty in respect of:
- the correct operation and possible interference of software supplied by publishers other than IKENTOO. The Customer should refer to the separate agreements and licences with the other publishers;
- files corrupted and/or lost during an event of force majeure;
- temporary faults affecting availability during data backup and restoration;
- the continuity of the Internet connection;
- access to data by third parties due to security breaches
- in the Customer’s information system;
- access to data by third parties in the event of failure by the Customer to exercise due diligence. (Cf. ART. 6. OBLIGATIONS OF THE CUSTOMER) regarding access data;
- the loss of encryption data;
- the backup of log data, statistical data or data generated or updated by those using the Customer’s information system;
- configuration file handling.
ART. 8. RATES
Rates may be obtained from iKentoo, which reserves the right to modify them at any time.
ART. 9. BILLING AND PAYMENT CONDITIONS
The Customer agrees to pay the billed amount no later than the due date that appears on the bill.
Prior to the due date, the Customer may contest the bill in writing along with an explanation of his/her reasons. However, he/she is still obligated to pay the bill before the due date. After this date, the bill must be accepted, and no objections shall be admitted.
If the payment is not made on or before the due date, the Customer shall automatically be considered to have defaulted on his/her payment, even if a reminder has not been sent to him/her. iKentoo reserves the right to bill CHF 30.- (€ 25.-) for each reminder.
If the Customer does not pay after the first reminder, iKentoo can immediately suspend the delivery of its services without notice and without compensation. In the event of such a suspension, the Customer shall, furthermore, be obliged to grant iKentoo access to the used equipment in order to uninstall it.
iKentoo shall reserve the right to require an advance payment and/or a guarantee.
Guarantees paid in cash as security deposits shall be returned with the rate of interest applicable to savings accounts. iKentoo can cover any debt incurred by the Clients with the guarantees that have been provided.
Customers shall not be entitled to cover debts to iKentoo with any counter-debts.
ART. 10. START, CANCELLATION AND SUSPENSION OF SUBSCRIPTIONS
As a general rule, the subscription shall take effect from the moment when the service is considered to be activated and/or started. To activate its account, the Customer shall send an email to firstname.lastname@example.org to request the activation of the production mode. Once the account is in production mode, the Customer can perform real transactions on the system.
The subscription may be cancelled at the end of the initial period if notice is given one (1) month in advance before the end of a billing period.
In the case of an unlawful use of or access to the service, either suspected or reported by a competent authority, iKentoo can require the Customer to take corrective action or cancel the service without advance notice and with no compensation. iKentoo reserves the right to claim damages.
Suspension of the service at the Customer’s request
In the case where the Customer wishes not to use the service for a predefined period, he can suspend the service for a period of one to several months, with a 15 days notice period prior to the beginning of the first month of suspension. The length of the suspension must be at least two months, and the total number of suspended months during a calendar year must not exceed 9 months. iKentoo reserves the right to charge fees for suspension and reactivation of an account. If the Customer needs to continue to use the backoffice while the account is suspended, a monthly fee will be charged.
Suspension for non payment
If the Customer fails to pay a bill after the first reminder, iKentoo may suspend its services immediately without prior notice or indemnity. In this case, the Customer shall give iKentoo access to the equipment used for the purpose of uninstalling it. If the relevant bill is not paid within 30 after the services are suspended by iKentoo, the Customer is notified of the procedures for backing up, transferring, copying and erasing data. (Cf. ART. 11. BACKING UP). The reactivation of the service after a suspension can take up to three business days. Any fee in relation with the reactivation of the service must be paid before the service is reactivated.
ART. 11. BACKING UP
Copying and erasing data
The Customer assumes full responsibility for all consequences related with the content and management of the data.
On the cancellation or termination of a service provided by iKentoo, the Customer authorizes the destruction of data irrespective of the prior non- recovery thereof.
ART. 12. LIABILITY OF iKentoo
iKentoo takes great care to ensure the quality and security of its infrastructures, primarily through the use of resilient redundant system architecture guaranteeing a high level of security and availability of service. However, IKentoo accepts no liability, insofar as permitted by law, particularly but not exclusively for malfunctions, the corruption and loss of data and for consequential damage or loss of earnings. iKentoo may only be held liable for gross negligence and deliberate misconduct. This provision on liability prevails over all other contractual terms. iKentoo accepts no liability for damages resulting from the inappropriate use of the services, in particular for damages due to failure by the Customer to observe the duty of care. iKentoo does not guarantee uninterrupted access, faultless operation, or the accuracy and integrity of the data uploaded or downloaded.
iKentoo accepts no liability for damages incurred by the Customer as a result of errors in transmission, corrupted data, disruptions, faults or unlawful intrusions in the information systems.
iKentoo reserves the right to interrupt the services at any time in the event of security related risks arising, and is under no obligation to explain the reasons for such interruption. iKentoo accepts no liability for damages caused by such interruptions.
ART. 13. FORCE MAJEURE
In addition to those normally accepted as such by the Jurisprudence of the Swiss Courts and Tribunals, the following in particular are considered as cases of force majeure: total or partial strikes inside or outside the company, lock-outs, severe weather, disruptions in transport or supply systems for any reason whatsoever, earthquake, fire, storm, flood, water damage, government or legal restrictions, disruption of telecommunications networks, power cuts, the appearance of a virus, loss or corruption of data, and other events beyond the control of iKentoo preventing normal execution of the Services.
In the cases listed above, all contractual obligations will be suspended.
ART. 14. DATA PROTECTION
iKentoo agrees to conscientiously process its Customers’ data and to comply with provisions regarding data protection.
iKentoo shall only enter, record, and process the data needed to comply with its contractual obligations, monitor its customer relations, ensure high-quality services and the security of its operations, and to carry out its billing procedures. Because of the technical process used, non- personal data about the Customer such as technical logs may automatically stored and kept, in compliance with the prevailing legislation.
The Customer authorises iKentoo to process and use its data internally and with the companies within its group, in order to allow it to ensure an optimal level of service.
To this end, iKentoo shall take measures to protect its network. However, absolute protection against interventions or illegal eavesdropping cannot be guaranteed; thus, iKentoo cannot be held liable for such interference.
ART. 15. CONFIDENTIALITY
IKentoo shall ensure the safekeeping of information that is entrusted to it by the Customer; this information shall be considered to be confidential and handled with discretion. The Customer, however, agrees to keep a duplicate of every document entrusted to iKentoo.
In all instances, data concerning transactions processed by the POS, as well as the composition of this data (reports, cash register journal, etc) is kept confidential and is safely stored within iKentoo.
The content of receipts issued by the POS system is an exception to this rule as it can be transmitted to the user who identifies himself as the beneficiary of the receipt, to allow for example the editing of a “duplicata” of a receipt, in a paper or in a dematerialized form. iKentoo commits itself not to transmit more than one receipt at a time, and only for the user that can prove to be the holder of the ticket, either in paper or in a dematerialized form (by scanning a bar or QR code).
iKentoo uses the information the Customer authorizes iKentoo to use in connection with the services and features iKentoo provides to the Customer and other users like iKentoo’s partners, the advertisers that purchase ads, and the developers that build the applications, and websites the Customer use. For example, iKentoo may use the received information about the Customer:
- as part of iKentoo’s efforts to keep iKentoo products, services and integrations safe and secure;
- to protect iKentoo's or others' rights or property;
- to measure or understand the effectiveness of ads the Customer and others see, including to deliver relevant ads to
- the Customer;
- for internal operations, including troubleshooting, data analysis, testing, research and service improvement.
Granting iKentoo this permission not only allows iKentoo to provide the Service as it exists today, but it also allows iKentoo to provide the Customer with innovative features and services that are developed in the future that use the information iKentoo receives about the Customer in new ways.
While the Customer is allowing iKentoo to use the received information about the Customer, the Customer always own all of your information. The Customer’s trust is important to iKentoo, which is why iKentoo does not share
- received information about the Customer with others unless iKentoo has:
- received the Customer’s permission;
- given the Customer notice, such as by telling the Customer about it in this policy; or
- removed the Customer’s name or any other personally identifying information from it.
The Customer acknowledges that all written and verbal information pertaining to iKentoo’s know-how is the product of original creative efforts and is confidential in nature. Consequently, the Customer agrees not to use it for his/her own purposes or to disclose it beyond what is needed to enforce the agreements.
ART. 16. INTELLECTUAL PROPERTY
For the duration of the agreement, iKentoo shall grant the Customer a non-transferable, non-exclusive right to use the services and products made available in accordance with these General Terms and Conditions and other contractual provisions. All intellectual property rights shall remain the property of iKentoo or the licensor.
The Customer agrees to notify iKentoo of any trespassing or infringement upon these intellectual property rights by Third Parties as soon as he/she learns of it.
ART. 17. NON-SOLICITATION OF PERSONNEL
The Customer shall be prohibited from hiring, either directly or through an intermediary, any collaborator belonging to iKentoo or any company within its group without the express consent of iKentoo.
This abstention shall persist for the entire duration of the agreements, followed by an additional twelve (12) months.
In the event of non-compliance, the Customer must pay iKentoo damages in the form of a lump sum equal to the gross salaries or fees that this collaborator would have earned from iKentoo during the year preceding his/her departure.
ART. 18. WAIVER
The fact that either of the Parties has not required the application of any clause included within these General Terms and Conditions, either permanently or temporarily, cannot, under any circumstances, be construed as a waiver of that party’s rights stemming from said clause.
ART. 19. CHANGES TO THE GENERAL TERMS AND CONDITIONS OR SUBSCRIPTIONS
iKentoo reserves the right to modify from time to time the services it provides or to discontinue a service, and to amend from time to time the terms under which a service is provided. Should this occur, the Customer will be duly notified. These changes are announced on the iKentoo website: http://www.ikentoo.com and take effect upon publication. In the event of a change in tax rates (for VAT in particular), iKentoo will be authorized to adjust its rates accordingly.
ART. 20. TRANSFERS OF RIGHTS OR OBLIGATIONS BY iKentoo
Unless prior consent is given by iKentoo, the Customer shall not be authorized to transfer any of the rights and obligations stemming from these General Terms and Conditions or agreements to another party.
iKentoo reserves the right to transfer the rights and obligations stemming from these General Terms and Conditions or agreements to another company within its group.
ART. 21. TRANSLATIONS
If the General Terms and Conditions are translated into other languages, the French version shall prevail.
ART. 22. PLACE OF JURISDICTION AND APPLICABLE LAW
Swiss law shall apply to these General Terms and Conditions.
If an amicable resolution cannot be reached, and when one party has duly notified the other party, any dispute shall be brought before the authorized Court of Geneva.