The following General Terms and Conditions shall become part of every contract between Penguin Business GmbH, Lerchenfeldstr. 3, 9014 St. Gallen, Switzerland (“We” or “Us” or “Provider”) and their clients (“You” or “Customer”).
By completing the registration form for ordering from Lab by Penguin on the homepage of Penguin Business GmbH, the Customer unconditionally accepts the following Terms of Service & General Terms and Conditions.
We reserve the right to amend these terms and conditions at any time. The amended terms and conditions shall become effective upon being published on the website.
1. The Lab Agreement
The Provider shall provide its Customers with Software Development Services, Consulting and Hosting via the Internet.
The subject of the Agreement shall be:
- The access to the Provider’s platform for use over the Internet, and
- The provision of the online ordered services, and
- The storage of the Customer’s data, server and websites (hosting).
2. Credits
- “Credits” are the virtual payment method in the Provider’s platform and can be bought from the Provider. Credits can be used to commission services through the Provider’s platform.
- When commissioning services with credits, an agency contract is deemed to have been accepted as soon as the request is confirmed by the Provider and the Customer.
- Credits are offered as packages. Credits can also be offered as subscriptions of different period lengths (subscription period) and monthly credit amounts. Credits come with different service levels.
- Credits are payable as soon as the purchase is confirmed by the Provider.
- Credits are valid for 30 days. Not consumed credits are carried over to the next 30 days period. Two restrictions apply here:
- The maximum possible amount of credits held in a subscription is double the purchased credits amount.
- Credits lose their value at the end of the subscription if the subscription is not renewed.
- A Customer can have multiple subscriptions at the same time. Or buy additional packages of credits.
- Credit usage must be evenly distributed over the month. The maximum daily usage limit for credits is 7% of the monthly credit amount. We might allow spikes beyond this amount but based on a fair use policy and the current load of our service.
3. Services
- The platform provides services of three kinds:
- Category 1: Planning, Estimating Effort, Writing Technical Specifications and Research or Consultation Services
- Category 2: Software Development
- Category 3: Hosting
- The customer commissions services by adding requests in the platform, which is the expression of intent to form a contract in order to perform all services of category 1 that are required. By starting the work on this request, we accept it implicitly.
- Response times to requests are depending on the Service Level of the credits used.
- For requests that require Software Development, we will create technical specifications and estimate those. Once provided, the customer can accept them, which is the expression of intent to form a contract in order to perform all services of category 2 and/or category 3 that are required. Depending on service level, this hire of services can have a fixed price or a variable price depending on the actual amount of hours spent.
- Tasks are implemented “as is”. We ensure the quality and a final check of the task. The estimate does not include any revisions or changes in the scope. The scope of the task is solely defined by the written technical specification.
- As long as not specifically defined in a technical specification, there are no assumed requirements in regard to search engine optimisation, (mobile) browser testing, content management system, creation of graphics, photographs, text or other content.
4. Obligations of the Customer
- The Customer is obliged to prevent unauthorized access to the software by third parties by taking appropriate precautions. For this purpose, the Customer shall, if necessary, inform its employees of compliance with copyright law. In particular, the Customer shall instruct its employees not to make copies of the software and not to disclose access data to third parties.
- The Customer shall be personally responsible for entering and maintaining the data and information required to use the SaaS services — without prejudice to the Provider’s obligation to back up data.
- The Customer is obliged to check its data and information for viruses or other harmful components before entering it and to use state-of-the-art virus protection programs for this purpose.
- When using the SaaS services for the first time, the Customer must generate a user ID and a password, which are required for further use of the SaaS services. The Customer is obliged to keep the user ID and password secret and not to make them available to third parties.
- The Customer shall immediately inform the Provider of any unauthorized use of the user ID and password, or other security attacks. In such cases, the Provider shall, in agreement with the Customer, change the Customer’s user ID and password.
- The Customer shall take all measures that the Provider considers necessary for preserving or improving the security of the data, the software, and the network connections.
5. Confidentiality
- The Provider undertakes not to disclose any confidential processes, in particular business or trade secrets of the Customer, which have come to its knowledge in the course of preparing, implementing and fulfilling the Agreement, and undertakes not to disclose this information to the external third parties without the Customer’s authorization. This shall apply to any unauthorized third parties unless the disclosure of the information is necessary for the proper fulfillment of the Provider’s contractual obligations.
- The Customer authorizes the Provider to name the Customer publicly as a reference (including showing its brand and logo) to use general information about the agreed contract in an appropriate manner for marketing and sales purposes.
6. Intellectual property rights
- “Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
- You guarantee that all elements of text, images or other artwork you provide are either owned by your good selves, or that you have permission to use them. When you provide text, images or other artwork to us, you agree to protect us from any claim by a third party that we are using their intellectual property.
- We guarantee that all elements of the work we deliver to you are either owned by us or we have obtained permission to provide them to you. Provided you have paid for the full work and that this contract has not been terminated, we will assign all intellectual property rights to you as follows: You will own all intellectual property rights of work created for you, unless someone else owns them.
- We will own any intellectual property rights we have developed prior to, or developed separately from this project and not paid for by you.
7. Duration / Termination / Cancellation / Fee
- The Customer undertakes to pay the Provider the fee agreed in accordance with its subscription and/or purchase plus the statutory VAT and any other expenses that might apply.
- The Provider shall send the Customer a statement with the contractually owed fee.
- The Provider is entitled to adjust the credit fees and service contents by notifying the Customer in writing on the next possible termination date. The reasons for such a change in service are, in particular, technical progress and the further development of the software. Should the Customer not wish to continue the Agreement at the adjusted rates, it is entitled to terminate the Agreement extraordinarily with a 14 days’ notice at the time of the change.
- The contractual relationship shall begin upon registration by the Customer.
- For subscriptions: The term of the contract (Subscription) corresponds to the term agreed between you and us. This corresponds to the service period invoiced in advance.
- For credit packages: The contract does end once all credits are used or if no credits are used for 60 days.
- Subscription auto-renew and are extended by another subscription period if not cancelled one month before ending.
- The parties are free to immediately cancel the Agreement for good cause. Such good cause for the immediate cancellation of the Agreement shall exist for the Provider, in particular,
- If the Customer goes bankrupt or the opening of bankruptcy proceedings has been stopped for lack of assets;
- If the Customer is in arrears with its payment obligations arising from this contractual relationship to the extent of at least one month’s fee, and if the Customer has been sent a reminder about setting a grace period of two weeks and a warning to cancel the Agreement, to no avail;
- If the Customer culpably violates legal regulations or interferes with copyrights, industrial property rights, or naming rights of third parties when using the contractual services; and
- If the Customer uses the marketed services for the purpose of promoting criminal, unlawful, or ethically questionable actions.
8. Severability Clause
Should individual provisions of the Agreement be invalid in whole or in part, any invalid provisions shall be reinterpreted, supplemented, or replaced in such a way that the commercial purpose pursued by the invalid provision is achieved. The same shall apply in the event that the Agreement contains any loopholes.
9. Place of Jurisdiction & Choice of Law
- The parties agree that all legal relationships arising from this contractual relationship shall be governed by the law of the Swiss Confederation to the exclusion of the provisions of Private International Law (PIL) and the UN Convention on Contracts for the International Sale of Goods (CiSG).
- St. Gallen is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the fulfillment of this contractual relationship.
10. Miscellaneous
- In this agreement the singular includes the plural and the masculine includes the feminine and neutral and vice versa unless the context otherwise requires.
- The capitalized headings in this Agreement are only for convenience of reference and do not form part of or affect the interpretation of this agreement.
- If any provision or part of any provision in this agreement is void for any reason, it shall be severed without affecting the validity of the balance of the agreement.
- Time is of the essence of this agreement.
- There are no representations, warranties, conditions, terms or collateral contracts affecting the transaction contemplated in this agreement except as set out in this agreement.
- Nothing in this agreement is intended to constitute a partnership or a master and servant relationship between the parties.
- This agreement binds and benefits the parties and their respective heirs, executors, administers, personal representatives, successors and assigns.
- Sales are only considered valid under this agreement if and only if they were made in accordance with law in both the Principal’s and Client’s jurisdictions.
- This agreement is governed by the laws of St. Gallen, Switzerland.