(“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 3rd 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.
“3rd 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 14th 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).