Terms & Conditions

Total One Terms and Conditions

(“T1TaC”)

1 Defin­i­tions

“Academ­ic Insti­tu­tion” means any insti­tu­tion like a univer­sity or school wheth­er public or private which is teach­ing pupils or students with the goal of educa­tion releas­ing certifications.

“Accept­or” means any Client that acquires cloud services and products from a Software Provider or other 3rd Party Products from an Offer­or in the Total One Market­place by accept­ing an Offering.

“Account” means access to the Total One Market Place given to a Client by setting up a Total One account.

“Affil­i­ate” means any legal entity in a group of compan­ies which are ultimately owned or controlled by a parent company. “Affil­i­ate” includes the parent company.

“Agree­ment” means the T1TaC hereof, the Control­ler Processor Agree­ment as to be separ­ately agreed upon by "click" or signing as the case may be, any Total One Order and any integ­rat­ing parts to it as well as any addition­al other contract terms accep­ted when regis­ter­ing and setting up a Total One Account, such as but not limited to the User Regis­tra­tion terms, a Total One Order etc.

“Client” means an Academ­ic Insti­tu­tion, a Corpor­ate Body, a Govern­ment Body, an NGO, a Private Individu­al or a Student, which accep­ted these T1TaC and accord­ingly with a valid Total One account who can enter the Total One Market­place as a visit­or, Accept­or, Offer­or or Total One Partner who might add its custom­ers to Total One under its sole discre­tion which then will be Clients as well.

“Client Data” means any inform­a­tion, content, such as Offer­ings data, 3rd Party Product descrip­tion data, Client`s legal terms and condi­tions, price, payment and other commer­cial data, bank data, credit card details, contact and other person­al data, user regis­tra­tion and log-in data provided and processed by the Client to Total One and uploaded by the Client onto the Total One Market Place. Client Data includes links to its own, affil­i­ated or third party websites. Client Data includes but is not limited to the data of clients, members and employ­ees of the Client. The contrac­tu­al terms under which Client Data is processed by Total One for the Client shall be regulated by the Contract on commis­sioned Processing of Person­al Data: "Control­ler-Processor Agree­ment" as to be separ­ately agreed upon by "click" or signing as the case may be.

“Corpor­ate Body” means any corpor­ate body governed by private law having legal capacity.

“Data Protec­tion Technic­al and Organ­iz­a­tion­al Measures” means the technic­al and organ­iz­a­tion­al measures defin­ing how Total One handles and processes your Client Data operated through the Total One Market­place. It describes the organ­iz­a­tion­al and technic­al secur­ity measures taken as well as Client`s and every Data Subject`s legal rights and oblig­a­tions attached as the Annex 1 of the Control­ler-Processor Agree­ment attached as to be separ­ately agreed upon by "click" or signing as the case may be.

“Data Subject” means any individu­al person or legal entity entitled to rights and legal complaints and remed­ies under applic­able data protec­tion laws.

“Govern­ment Body” means any admin­is­trat­ive unit or corpor­ate body organ­ized under public law or any corpor­ate body governed by private law with a govern­ment, admin­is­trat­ive unit or corpor­ate body under public law holding more than 50 per cent of its shares and voting rights having legal capacity.

“NGO” means any Corpor­ate Body quali­fy­ing as non-profit organ­iz­a­tion with a non-commer­cial business purpose to help e.g. humans, animals or nature.

“Offer­ing” means the offer of any Market­place Product through the Total One Marketplace.

“Private Individu­al” means any private person having legal capacity.

“Market­place Contract” means any contract between the Offer­or and the Accept­or by confirm­a­tion or accept­ance of a Total One Market­place Order by an Accept­or, without involve­ment of Total One.

“Market­place Product” means any 3^rd Party Product or Total One Product listed in the Total One Market­place by a Client or Total One.

“Market­place Parties” means the Offer­or and the Accept­or of 3rd Party Products in the Market­place once they have concluded a Market­place Contract.

“Market Place Fee” means the fee applic­able on Total One Partners and Clients depend­ing as the case may be inter alia on the time period of the chosen subscrip­tion in the Pay-as-you-go Model and the number and types of Users, of the Total One Software and the Total One Marketplace.

“Offer­or” means any Client placing an Offer which might lead to an accept­ance includ­ing but not limited to Total One Partners, Software Providers and other Clients.

“Pay-as-you-go Model” means the Total One tempor­ary usage model for Clients and Total One Partners for access to and use of the Total One Software depend­ing on time (one time, daily, monthly, quarterly or annually fraction), numbers of Users and Market­place Product price.

“Software Provider” means third party software provider with a Client account, offer­ing software or software services such as but not limited to Microsoft, Amazon Web Services, Google etc., facil­it­ated by the Total One Software provid­ing install­a­tion, config­ur­a­tion and / or admin­is­tra­tion services.  The Client contracts directly with the Software Provider or author­ized Total One Partner, Offer­or etc. for their services and software offered in the Total One Marketplace.

“Student” means any Private Individu­al that has an inscrip­tion at an Academ­ic Insti­tu­tion dated not more than 3 months prior to the Offer.

“3^rd Party Product” means hardware, software, services, licenses, pay-as-you-go services, SaaS, IaaS, cloud services etc. offered in the Total One Market­place includ­ing the related product descrip­tion and commer­cial and legal sales condi­tions other than Total One Products.

“Total One” means Total One Apps Limited), a limited company duly organ­ized and exist­ing under the laws of Ireland, whose registered office is at: Unit 3d North Point House, North Point Business Park, New Mallow Road, Cork, and acting in accord­ance with the laws of Ireland.

“Total One App” means this innov­at­ive and efficient online market­place and billing solution app provided by Total One.

“Total One Billing System” means The Total One billing system software as part of the Total One Software used to bill completed Total One Orders and Total One Market­place Orders and Contracts.

“Total One Content” means any text, image, video, audio, design, logo, graph­ic, script, name etc., which Total One posts, publishes or makes avail­able on or through the Total One Software, Website or Market­place, wheth­er or not this Total One Content is protec­ted under any applic­able under any applic­able Intel­lec­tu­al Property laws and which is owned by Total One or lawfully licensed or contrac­ted by third party owners to Total One.

“Total One Market­place” means the Total One App when used by Total One Partners, Clients or Total One to offer or purchase Market­place Products under the terms of this Agreement.

 “Total One Market­place Products” means any IT service, software, hardware etc. that is sold or purchased in the Market­place by a Client under the terms and condi­tions of the Offeror.

“Total One Market­place Order” means an Order for 3rd Party Products placed by an Accept­or towards an Offer­or related to an Offer­ing posted in the Total One Market­place accord­ing to the commer­cial and legal condi­tions posted by the Offeror.

“Total One Order” means an Order for cloud service third party / Offer­or products facil­it­ated and pre-configured through Total One`s Total One Software or for a Total One Support Agree­ment. Total One Orders are placed by the Total One Partner on behalf of its custom­ers or directly by a Client subject to this Agree­ment by accept­ing these T1TaC and the commer­cial and other condi­tions referred to in the Order, online, by e‑mail or in written form.

“Total One Partner” means a Client of Total One, typic­ally an Offer­or, integ­rat­or, data center etc., which has signed the Total One Total One Partner Agree­ment or simply fulfilled the online Total One Partner on-board­ing process and so is entitled to add its own custom­ers to the Total One Market Place and use the Total One Market Place to sell its own products and services with preferred condi­tions to the Total One community.

“Total One Products” means the Total One Software and other related services or products such as Total One support services outlined in a Total One Support Agreement.

“Total One Support Agree­ment” means an agree­ment for the provi­sion of certain support services by Total One accord­ing to the commer­cial and legal support terms either published on the Total One Website by Total One and included by click­ing the accept­ance button or agreed upon by mutual agree­ment between Total One and a Client. In any case Total One shall only be obliged to provide support services to the client if such support is agreed upon separ­ately by under­writ­ing or "click".

"Total One Terms and Condi­tions" means the terms and condi­tions hereof ("T1TaC") apply­ing to the member­ship, partner­ship, offer­ings and all Trans­ac­tions and Contracts of Clients in the Total One Market­place includ­ing but not limited to as an Accept­or or as an Offer­or. The T1TaC must be accep­ted when login into the Account and will apply as soon as a Client enters the Market­place as a visit­or, a poten­tial Accept­or, an Offer­or or a Total One Partner.

“Trans­ac­tion” means any trans­ac­tion made by an Offer­or through the use of the Total One Market Place includ­ing cloud install­a­tions, acquis­i­tion of 3rd Party Products and services as well as any other Trans­ac­tions directly concluded with a Client inter alia such as let, sale as a service, license, lease etc. “Offer­or” includes Total One Partners, Software Providers and Clients.

“Total One Website” means the website where the Total One Account can be accessed and where Total One, commer­cial terms, Market­place and other inform­a­tion and the applic­able Total One Terms and Condi­tions are published from time to time.

“User” means an individu­al author­ized by the Client to access and use the Total One Market Place and /or Total One Market­place Products on behalf of the Client with the author­iz­a­tions accord­ing to the User Categor­ies as alloc­ated in the User Manage­ment Vault.

“User Category” means differ­ent users with differ­ent author­iz­a­tions to perform activ­it­ies on the Total One Market Place and /or Total One Market­place Products. With the alloc­a­tion under a specif­ic Category by the Client in the Manage­ment Vault, the respect­ive rights and oblig­a­tions of that User Category are accep­ted by the Client.

“User Manage­ment Vault” means the Client alloc­ates and withdraws User author­iz­a­tions to his own staff or extern­al person­nel accord­ing to the User Categor­ies. Unless specific­ally author­ized to, Total One has no access to and no rights to the Client`s User Manage­ment Vault and person­al data of the Client`s Users.

 

2 Accept­ance of Terms, Changes

2.1 These T1TaC are accep­ted by click­ing the respect­ive online-accept­ance button on the Total One Website when login into Total One and / or when sending a Total One Order. Togeth­er with the Total One Order and the other terms integ­rated by refer­ence (“Agree­ment”).

2.2 Accept­ance of these T1TaC and Condi­tions and all its refer­enced or linked guidelines, policies and condi­tions herein, entitles the Client, through its registered Users, to access and use the Total One, as a visit­or, a Accept­or, a Offer­or or a Total One Partner, accord­ing to this Agree­ment. Total One Partner condi­tions are separ­ate from these T1TaC and must be agreed in addition.

2.3 Total One reserves the right to change any of the terms and condi­tions of these T1TaC or any other terms and condi­tions, guidelines or policies apply­ing on the use of the Total One at any time and in its sole discre­tion. Any changes will be effect­ive upon posting of the new version of the T1TaC on the Total One Website. All notice of changes will be published on the Website for thirty (“30”) days. The Client is respons­ible to review the changes and – in case of non-accept­ance – to termin­ate the use of the Total One. Contin­ued use of the Total One follow­ing announce­ment of the changes, shall consti­tute Client`s accept­ance of these changes and the new version.

 

3 Client Regis­tra­tion / Power of Attorney

3.1 Use of the Total One Market Place is limited to Clients and Users that lawfully can exert the rights and oblig­a­tions for the Clients and Users, as specified in this Agree­ment and the User Category. For instance minors or persons without the respect­ive Client author­iz­a­tion or individu­als / entit­ies on an export restric­tion list, are not entitled to sign up for the Total One Account or to register as a User.

3.2 Regis­tra­tion as a Client requires the provi­sion of a business, company or entity name as well as the real name(s) of the regis­ter­ing individual(s) as (a) User(s), function(s), company / entity registered address, email-address, phone number and a valid credit card number or bank account at the legal domicile of the Client as reques­ted in the User regis­tra­tion form.

3.3 The Client author­izes Total One to list it as a User accord­ing to the User Categor­ies as defined by Total One. The Client manages (for instance assigns, updates or cancels User rights etc.) the Users on its own respons­ib­il­ity and independ­ently and with no access from Total One in the User Manage­ment Vault

3.4 Client is respons­ible for password and login confid­en­ti­al­ity for its Account and for its Users. Client is for itself and its Users respons­ible to restrict access to its locations and computers. Client shall accept full respons­ib­il­ity for all activ­it­ies that occur under its Account, Users and passwords.

3.5 Total One will grant only access to the Total One Market Place to identi­fied Clients and Users author­ized by the Client through the User Manage­ment Vault process.

3.6 It is in the sole discre­tion of Total One to deny, block, withdraw, cancel or restrict access of a Client and/or a User to the Total One Market­place at any time, if Total One is of the reason­able view, that identi­fic­a­tion and login secur­ity of a User is not confirmed or if a User or the Client infringes other terms of the Agree­ment or any applic­able law or court orders.

3.6 Every Client grants Total One a Power of Attor­ney to order products from, agree upon, modify or termin­ate agree­ments with and in gener­al to act as his Attor­ney in fact towards other Clients includ­ing but not limited to providers of 3rd Party Products or any other providers of services on the Total One Market­place. Such Power of Attor­ney shall be limited by the author­iz­a­tions given to Total One from such Client by its Offers, Accept­ances or other determ­in­a­tions on the Total One Marketplace.

 

4 Term, Termination

4.1 The Term of the Agree­ment and the license to get access and use the Total One Software shall be for the duration as chosen in the Total One Order (“Term”) start­ing from the date of online-accept­ance of the Agree­ment by the Client or the date of the last Email or signa­ture (“Effect­ive Date”).

4.2 Ordin­ary Termin­a­tion of the Account by the Client will be sent through Email by (an) author­ized User(s) and will become effect­ive through confirm­a­tion of receipt by Total One.

4.3 Termin­a­tion does not give Client the right to a refund of prepaid unused Fees.

4.4 In case of an ordin­ary Termin­a­tion of the Agree­ment by the Client, Total One will provide the Client with a summary of the Client`s Total One Orders, Total One Market­place Orders and any 3rd Party Products acquired through the Total One Market Place.

4.5 Termin­a­tion for cause by either Party shall be reserved.

 

5 Fees

5.1 The Total One Software is tempor­ar­ily leased to the Client solely for the purpose and under the terms of this Agree­ment accord­ing to the Pay-as-You-Go Model and payment terms chosen and accep­ted by the Client when signing up for the Account and placing Total One Orders by click­ing the respect­ive button.

5.2 The Market Place Fee does not include any fees and payment oblig­a­tions which are incurred by a Client directly from Software Providers, Offer­ors, Total One Partners or other Clients or other third parties. All these contracts and Trans­ac­tions are agreed and executed directly between the Client and the Software Provider, Offer­or, Total One Partner, other Client, third party etc. with no involve­ment or oblig­a­tion of Total One whatsoever.

5.3 The Market Place Fee is payable immedi­ately and due upfront 14 days after the Client getting access to the Total One Market Place. In case Total One did not receipt the payment on the respect­ive 14^th day Total One will send a warning e‑mail.  After receipt of this warning mail the Client will be treated in “default. In case of such a default or an insolv­ency of the Client Total One is not obliged to set anoth­er grace period but is entitled, at its sole discre­tion, to immedi­ately block or suspend the access to the Account and/or  termin­ate the Agreement.

5.4 Support fees under any of the published support models can be chosen at any time by click­ing the respect­ive order button on the Total One Website.

5.5 In case of non-payment of Fees, apart from a tempor­ary block­ing of the Account, Total One shall be entitled to termin­ate the Agree­ment with immedi­ate effect.

 

6 Client Repres­ent­a­tions and Warranties

The Client repres­ents and warrants:
a) that it is duly organ­ized, validly exist­ing and in good stand­ing under the laws of the country, where the Client business is registered and that the products and services Client provides, are legal and registered (if applic­able) in each country where Client business is performed.
b) that it has all requis­ite rights, power and author­ity to enter into an agree­ment with Total One for the parti­cip­a­tion in the Total One Market Place and Market­place and to perform its oblig­a­tions thereunder.
c) that it is lawfully entitled to the Content provided, uploaded and made avail­able or disclosed to Total One, the Total One Market­place and the Client or published in the Total One Market­place, that its disclos­ure and public­a­tion does not infringe any applic­able laws or third party IPR or other rights and that the Content is always accur­ate, up-to-date, not mislead­ing and complete.
d) to strictly comply with this Agree­ment and all other terms and condi­tions and guidelines applic­able on the use of the Total One Market­place and all applic­able laws on the Client`s business, its Trans­ac­tions and its member­ship in the Total One Market Place.
e) that it shall use the Total One Account, Website and Market­place only for a lawful purpose and in a lawful manner. The Client shall not use the Total One Account in any way that damages or impairs the Total One, Website and Market­place or its perform­ance, avail­ab­il­ity or access­ib­il­ity or in an illeg­al, fraud­u­lent or harmful way or in connec­tion with an illeg­al, fraud­u­lent or harmful activity.
f) not to use the Total One Account and Website to copy, store, host, trans­mit, send, use publish or distrib­ute any mater­i­al which consists of or is linked to any spyware, computer viruses, Trojan horses, worms, keystroke loggers, rootkits or other malicious computer software or other secur­ity risks. The Client shall take all reason­able organ­iz­a­tion­al and technic­al precau­tions in order to prevent infilt­ra­tion of the Total One Account, Software and Website with secur­ity risks and specific­ally the afore­men­tioned malicious software.
g) to respect and comply with Total One`s intel­lec­tu­al property for the Total One Software and to respect and comply with any other Clients intel­lec­tu­al property rights with respect to their respect­ive Market­place Product.
h) not to conduct any system­at­ic or automated data collec­tion activ­it­ies (includ­ing without limit­a­tion data mining, data extrac­tion and data harvest­ing) on or in relation to the Total One, Website and Marketplace.
i) not to access or other­wise inter­act with the Total One Website using any robot, spider or other automated means, except for the purpose of search engine indexing;
j) not to use collec­ted, person­al data, other data or Content from the Total One Market­place, for any direct market­ing activ­ity (includ­ing without limit­a­tion email market­ing, SMS market­ing, telemarket­ing and direct mailing) and to comply with any data protec­tion rules and regula­tions applic­able to any data processed with the Total One Market Place includ­ing but not limited to the European GDPR.

 

7 Client Content

7.1 Client will be provided the right to upload and disclose own Content, includ­ing links, to the Total One Marketplace.

7.2 Client shall grant to Total One a royalty-free, perpetu­al, irrevoc­able and fully sub-licens­able right to use, repro­duce, modify, adapt, publish, perform, trans­late, create deriv­at­ive works from, distrib­ute and display such Content on its Total One Market Place which is included in the Market Place Fee.

7.3 Client shall not upload and publish to Total One Market­place any Content which – in the reason­able discre­tion of Total One – must be considered to be false, mislead­ing, offens­ive, hateful, libelous, spam or which violates Total One`s or any third party (includ­ing other Clients) intel­lec­tu­al property rights, infringes this Agree­ment, any data protec­tion or secrecy laws, violates any contrac­tu­al secrecy or privacy oblig­a­tions or other contract oblig­a­tions towards any person or entity or does consti­tute a viola­tion of any applic­able law or binding court order, binding author­ity orders or good industry practice.

7.4 In case if Client, in the reason­able view of Total One, infringes these terms of para 7 or any other terms of the Agree­ment, Total One reserves the right to screen, remove or edit any such infringing Content. In addition Total One is entitled – at its sole discre­tion – to tempor­ar­ily block or suspend the Total One Account or to suspend or termin­ate the Agree­ment with immedi­ate effect.

7.5 Total One is entitled to report any illeg­al Content to the compet­ent courts and govern­ment author­it­ies. In order to cooper­ate with requests of govern­ment author­it­ies and courts and to ensure the integ­rity of its opera­tions, Total One may access and disclose any inform­a­tion it considers neces­sary or appro­pri­ate, includ­ing but not limited to Client or User conT1TaCt details, IP address­ing and commu­nic­a­tion inform­a­tion and content, usage and access history and any Client Content.

7.6 Total One is not respons­ible for review­ing or evalu­at­ing any of the Client`s Content and does not warrant nor in any way support Client Total One Offer­ings and related Content or any other content (includ­ing links).  Total One does not assume any respons­ib­il­ity or liabil­ity for such Client Content or linked Client or third party content.

 

8 Intel­lec­tu­al Property Rights 

8.1 Client shall receive a non-exclus­ive, revoc­able,  non-trans­fer­able, non-subli­cens­able license to use the Total One Software with all its features not limited in place during the term of the Agree­ment solely for Client`s own intern­al business purposes. The license includes the right to view pages from the Total One Website in a web browser, to download pages for caching in a web browser, to print pages from the Total One Website, to stream audio and video files from the Website (if any) and use Total One web services by means of a web browser and to upload Content and Offer­ings only as described in this Agree­ment onto the Total One Website and the Marketplace.

8.2 Total One shall exclus­ively remain entitled to all intel­lec­tu­al property rights of Total One, includ­ing but not limited to the Total One Software, Total One Products and the Total One Content. Intel­lec­tu­al Property Rights (“IPR”) shall include, but is not limited to patent rights and the compre­hens­ive copyright with all rights to the Total One Software, included programs, documents, hardware, methods and inform­a­tion which have been provided within the prepar­a­tion and perform­ance of this Agree­ment includ­ing warranty, Support and other services (if applic­able) as well as to license or other contrac­tu­al rights of other Clients and third parties.

8.3 In partic­u­lar the duplic­a­tion of the Software without Total One`s express consent, any handing over or disclos­ure of the Software to non-author­ized staff of Client or to third parties without written expressed consent or the devel­op­ment of simil­ar software, by using Total One Software as a model for its devel­op­ment, is prohib­ited by this Agree­ment and by opera­tion of law. Client may not and will not encour­age, assist or author­ize any other entity or person, to copy, modify, reverse engin­eer, decom­pile or disas­semble or other­wise tamper with the Total One Software, wheth­er in whole nor in part, nor create any deriv­at­ive works of the Total One Software.

8.4 Client shall not modify or remove any copyright notices of Total One.

8.5 Any use of the Total One, Software or Market­place which exceeds the provi­sions included in this Agree­ment will require the prior written approv­al of Total One. In the event that such use takes place without this approv­al, Total One reserves the right to termin­a­tion for cause includ­ing damage claims.

8.6 The trans­fer of the Total One Software License provided in 8.1, to a third party, includ­ing an Affil­i­ate, requires the conclu­sion of a new or a change to this Agree­ment in writing or by online-accept­ance or an approv­al of Total One (by email or in writing).

8.7 Client shall remain fully entitled to all its preex­ist­ing lawfully owned or licensed Intel­lec­tu­al Property Rights with regard to the Content posted on the Total One Marketplace.

 

9 Addition­al Market­place Conditions

9.1 Total One`s role and limited liability

9.1.1 Total One`s role is to offer Total One  Market Place for Clients and to help them to efficiently config­ure, install and manage cloud based IT systems world­wide and to support the Total One Clients to offer, sell or buy 3rd Party Products through the Total One Marketplace.

9.1.2 Total One is not involved in the negoti­ations between Offer­or and / or Software Provider and Accept­or and not a party to the Trans­ac­tions on the Total One Market­place. It is in the sole respons­ib­il­ity of the Market­place Parties to execute their part of the Trans­ac­tion independ­ently from Total One and the Total One Market Place. Total One´s liabil­ity is limited to the provi­sion of the Total One App and as the case may be further Total One Products. Total One is the counter­party of each Client only with regard to the use of the Total One App and as the case may be Total One Products. The provi­sion of Cloud solutions and/or of any other 3rd Party Products is not the oblig­a­tion of Total One but lays within the respons­ib­il­ity and liabil­ity of the respect­ive Software Provider and/or Offer­or in the Total One Marketplace.

9.1.3 Total One expressly excludes any respons­ib­il­ity and liabil­ity, if Trans­ac­tions between Accept­or and Offer­or fail or are being rescin­ded, cancelled or termin­ated for whatever reasons or are legally inval­id or null and void under any applic­able law.

9.1.4 Total One reserves the right to change the appear­ance, design and function­al­ity and all other aspects of the Total One Market­place from time to time.

9.1.5 Total One has the right, but no oblig­a­tion, to preview any Content before it is posted, refuse or edit Content before it is posted or request changes to it.  In addition, Total One has the right but no oblig­a­tion to monit­or any Content, Trans­ac­tions and other activ­ity performed on or associ­ated with Total One, the Website and the Market­place as Total One deems appro­pri­ate. Total One also may invest­ig­ate any repor­ted viola­tion of this Agree­ment, applic­able laws or other applic­able terms and condi­tions or any legal oblig­a­tions and repor­ted Client, third party or author­ity complaints. Total One may take any action as it deems appro­pri­ate, includ­ing but not limited to remov­ing of Content from Total One Website or Market­place, tempor­ar­ily block­ing the access to the Account, suspend the Agree­ment or termin­ate the Agree­ment with immedi­ate effect.

 

9.2 Market­place Contracts

9.2.1 The Offer­or may offer 3rd Party Products for sale in the Market­place to the Offeror`s commer­cial and legal terms and condi­tions provided as a part of the Offeror`s Offer­ing and Accept­or may order such Offer­ings to the specified commer­cial and legal terms and condi­tions by click­ing the respect­ive Market­place Order and accept­ance button. The Market­place Parties are solely respons­ible for the conclu­sion of a binding and valid contract.

9.2.2 The contract between Offer­or and Accept­or is only between them as the Market­place Parties. Apart from provid­ing the Total One Market Place to facil­it­ate or mediate contract closures, Total One is not a part and not involved whatso­ever in the conclu­sion and execu­tion of the Trans­ac­tions. Total One does neither warrant nor guaran­tee that the Market­place Contract is legally valid or binding, nor that the parties will honor their oblig­a­tions under their contracts.

9.3 Taxes

9.3.1 It is the Client`s (Offeror`s, Software Provider`s and Acceptor`s) sole respons­ib­il­ity to determ­ine wheth­er sales taxes, goods taxes, VAT, export, import tax, withhold­ing tax, customs duties, consump­tion, use or excise tax or any other applic­able tax or duty (“Tax”) of any compet­ent country impacted by the Market­place Contract and the Trans­ac­tions between the Market­place Parties, apply.

9.3.2 It is the Client`s (Offeror`s, Software Provider`s and Acceptor`s) sole respons­ib­il­ity to declare in the Offer­ing and to collect, report and remit to a compet­ent author­ity any Tax assessed, incurred or required to be collec­ted or paid for any reason in connec­tion with any Offer­ing, advert­ise­ment or Sale of 3rd Party Products by the Offer­or on or through Total One or other­wise in connec­tion with any action, inaction or omission of the Client or any affil­i­ate of a Client or of any of a Clients respect­ive employ­ees, agents, contract­ors or representatives.

9.4 Compli­ance with Export Regulations

Clients includ­ing their Affil­i­ates, direct­ors, officers, employ­ees, repres­ent­at­ives, consult­ants, agents, etc. shall strictly comply with all applic­able export and re-export restric­tions and regula­tions of all applic­able laws, specific­ally but not limited to those of Ireland, the United States of America and the European Union. Total One shall be entitled to block or remove Offer­ings or Contracts or block or termin­ate Client`s Account or Agree­ment with immedi­ate effect, if Total One reason­ably comes to the conclu­sion that such Offer­ings or Contracts are infringing, likely to infringe or are trying to circum­vent Irish, US, EU or any other applic­able export restric­tion law.

9.5 Disputes between Clients

Issues and disputes between the Clients and Market­place Parties, includ­ing contract negoti­ation, mediation and litig­a­tion, are resolved directly between them accord­ing to the legal condi­tions agreed in their Contract or as under applic­able law, with no involve­ment nor mediation whatso­ever by Total One.

9.6 Market­place Indemnification

Since Total One is not involved in the Market­place Offer­ings, negoti­ations, Contracts and related Trans­ac­tions or other dealings between Clients, if a dispute or litig­a­tion arises between one or more of them, any Client shall fully indem­ni­fy Total One and its Affil­i­ates, employ­ees, officers, direct­ors, repres­ent­at­ives and agents from all and any damages, claims, demands of every kind and nature (includ­ing any court costs and reason­able attorney`s fees) arising out of or connec­ted with  these disputes, litig­a­tion, claims etc. between the Clients.

9.7   Links to Websites

The Total One Market­place may contain links to other Clients, Software Provider or other third party websites. Total One does not control the content of these websites. Unless specific­ally stated on the Total One Website to the contrary, Total One is not affil­i­ated with these Clients, Total One Market­place Members, Total One Partners, Software Providers etc. and other third parties and does not endorse nor sponsor their websites, products or services, their Client Content nor other content. All linked inform­a­tion is provided "as is" without any express or implied warranties or endorse­ment, includ­ing but not limited to, implied warranties of merchant­ab­il­ity, accur­acy of inform­a­tion, fitness for a partic­u­lar purpose or non-infringe­ment. In no event shall Total One be liable for any special, indir­ect, punit­ive or other damages result­ing from any use or content or errors or omissions in the inform­a­tion on the Total One Website or on websites to which Total One or the Market­place or provides links or to links of other Clients, Total One Market­place Members, Total One Partners, Software Providers or other third party websites.

 

10  No Warranties

10.1 For the Total One: Total One provides Total One “as is” and disclaims all warranties, express, implied, arising by statute or other­wise, includ­ing but not limited to any warranty of merchant­ab­il­ity or quality, fitness for any partic­u­lar purpose.

10.2 Total One will from time to time, in the sole discre­tion of Total One, fix bugs or errors and maintain the Software through patches, automated or manual updates at any time and without notice to Client. This is included in the Agreement.

10.3 Irrespect­ive of the forego­ing, Total One Market­place access and use is provided to Client with no warranty as to the uninter­rup­ted or error free function­ing, avail­ab­il­ity and perform­ance of the Total One Market Place.

10.4 For the Total One Market­place and Website inform­a­tion: Total One does not warrant or repres­ent the complete­ness, accur­acy and up-to-dated­ness of any Client Content, Total One or other inform­a­tion or public­a­tion in the Total One Market­place and on the Website.

10.5 For Software Provider services and Market­place Offer­ings: Total One does not warrant the accur­acy, complete­ness, up-to-dated­ness or avail­ab­il­ity of a Total One Software Provider or Market­place Offer­ing and related Client or Software Provider Content.  As with all other forms of advert­ising, Clients and poten­tial Accept­ors must rely on their own judgment regard­ing the value of an 3rd Party Product on their business. Total One does not make any warranty of any kind regard­ing the Total One Market­place 3rd Party Products, Content and information.

10.6 Total One also expressly disclaims all warranties, guaranties, services or products descrip­tions and other condi­tions regard­ing 3rd Party Products, Software Provider services an, products and any other profes­sion­al services offered, sold or performed through or on the Total One Marketplace.

 

 11 Indemnity 

The Client agrees to indem­ni­fy and hold Total One and its employ­ees, officers, direct­ors, agents, consult­ants and Affil­i­ates fully harmless (includ­ing reason­able attorney’s fees and court costs) from any claim, request or demand, made by any third party, any Software Provider, Accept­or, Offer­or, Total One Partner or other Client or any of their respect­ive employ­ees, officers, direct­ors, agents, consult­ants or Affil­i­ates, due to or arising out of the Client`s (or any of its Affil­i­ates, officers direct­ors, employ­ees, agents, consult­ants) breach of the Agree­ment or viola­tion of any law or the rights of anoth­er Total One Client, a  Software Provider, Accept­or, Offer­or, Total One Partner or any third party. If Total One waives or fails to react or respond to such a breach or viola­tion in a single case, this does not mean that Total One waives its legal rights to respond or act to subsequent or simil­ar breaches or violations.

 

12 Support Services

12.1 Client may request from Total One a specif­ic support service and accord­ingly offer Total One a Total One-Support Agree­ment. By click­ing on the respect­ive button as refer­enced on the Total One Website, by the Total One Order form or by signing the respect­ive paper agree­ment the Support Terms are accep­ted by the Client. The Support Agree­ment will be separ­ately accep­ted by Total One by signa­ture, e‑mail or in written form.

12.2 In case of a valid Total One-Support Agree­ment Total One shall provide the services outlined therein: E.g. fix bugs, errors, incon­sist­en­cies and provide direct custom­er-specif­ic support during the hours and in the time as agreed in the Total One-Support Agreement.

12.3 Client shall notify Total One of any bugs, errors, malfunc­tions or incon­sist­en­cies by provid­ing notice includ­ing a descrip­tion of the problem through Total One`s online ticketing-system.

12.4 Termin­a­tion of the Agree­ment includes termin­a­tion of the Total One Support Agree­ment. Termin­a­tion of the Total One Support Agree­ment does not include termin­a­tion of this Agreement.

 

13 Liabil­ity

13.1 To the extent permit­ted by law, Total One`s liabil­ity for any direct losses, claims or other direct damages incurred by Client in connec­tion with this Agree­ment, shall not exceed in the aggreg­ate the most recent three (3) months of Fees received by Total One from the Client.

13.2 Total One excludes any other liabil­ity for damages due in partic­u­lar to the non-perform­ance of contrac­tu­al oblig­a­tions, for punit­ive, indir­ect, incid­ent­al, or consequen­tial damages (such as but not limited to lost profit, lost savings, lost goodwill, claims of third parties etc.) and for damages caused by corrup­tion or loss of data, wheth­er based in contract, negli­gence, tort, strict liabil­ity or any other theory of recovery.

13.3 The liabil­ity for person­al injur­ies caused by culpable action and the liabil­ity accord­ing to the Irish Product Liabil­ity Act are exemp­ted from these restrictions.

13.4 Total One shall not be liable for damages caused by auxil­i­ary personnel.

 

14 Electron­ic Communication

14.1 All commu­nic­a­tion between the Client, acting through its registered Users, and Total One will be through electron­ic means. The Client consents to receive commu­nic­a­tion from Total One, other Client, Software Providers, etc. electron­ic­ally, such as emails, texts, mobile push notices, notices, public­a­tions and messages on the Total One Website or through other Total One channels.

14.2 The Client agrees that this Agree­ment and all agree­ments, notices, public­a­tions, messages and other commu­nic­a­tions will be provided to Client electron­ic­ally and that the electron­ic format satis­fies and complies with any applic­able legal require­ments, includ­ing but not limited in the country of the Client, that such commu­nic­a­tion, agree­ment or contract be in writing.

 

15 Use of Third Party Services

By access­ing the Total One Software and Market­place, the Client may also use products or services of one or more third parties, such as but not limited to a credit card operat­or, wireless carri­er or mobile Market Place vendor etc. Client`s use of these third party products and services may be subject to separ­ate polices, terms of use and fees of such third parties.

 

16 Sever­ab­il­ity

Should any individu­al provi­sion of the Agree­ment be or become void or inval­id, the remain­ing provi­sions will contin­ue to apply. The void or inval­id provi­sion shall be replaced in such a case by an effect­ive provi­sion which is as close as legally possible to the intent of the ineffect­ive provision.

 

17 Assign­ment of Rights

17.1 Total One may assign or trans­fer this Agree­ment or single rights under this Agree­ment to an Affil­i­ate or a third party by giving notice to the Client either by email or by announce­ment on its Website.

17.2 Client may assign or trans­fer this Agree­ment or single rights under this Agree­ment to an Affil­i­ate or a third party only after written accept­ance by Total One.

 

18 Entire Agreement

Subject to an addition­al Total One Partner agree­ment, this Agree­ment, includ­ing all Total One Orders, shall consti­tute the entire agree­ment between the parties in relation to the Clients access and use of Total One, the Website and Market­place and shall super­sede all previ­ous agree­ments between the Parties in this respect.

 

19 Dispute Resol­u­tion, Arbitration

19.1 In the event of any claim or dispute arising out of or in connec­tion with the present Agree­ment, the Parties shall first refer the dispute to proceed­ings under the Inter­na­tion­al Chamber of Commerce`s (“ICC”) Mediation Rules.

19.2 If the dispute has not been settled pursu­ant to the said Rules within [60] days follow­ing the filing of a Request for Mediation or within such other period as the Parties may agree in writing, such dispute or claim shall there­after be finally settled under the Rules of Arbit­ra­tion of the Inter­na­tion­al Chamber of Commerce (“ICC”) by three arbit­rat­ors appoin­ted in accord­ance with the ICC Rules of Arbit­ra­tion, exclud­ing any State courts. 

19.3 Place of Arbit­ra­tion shall be in Dublin, Ireland. Arbit­ra­tion Language shall be English.

 

20  Applic­able Law

This Agree­ment shall be subject to Irish Law, includ­ing the rules on Inter­na­tion­al Private Law (“IPL”) and exclud­ing the provi­sions of the Vienna Conven­tion (the United Nations Conven­tion of Contracts for the Inter­na­tion­al Sale of Goods concluded in Vienna on 11 April 1980).