Software as a Service Change4Win
General Terms

Last Update: October 2019

Welcome to change4win.com.

 

Your access to and use of the change4win website & Service including any software application, content, functionality and services offered on or through change4win.com, is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By using, creating an account or logging in to use the Service you agree to be bound by these Terms and our Privacy Policy. If you disagree with any part of the terms and our Privacy Policy then you may not access the Service.

 

If you are registering for a change4win account or using the change4win Platform on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Actino that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your” and “Buyer” will refer to that entity or organization).

 

This Agreement sets forth the terms and conditions under which Actino SARL (“Actino”) agrees to license to its clients (“Buyers”) certain hosted software and may provide other paid services tailored to their needs necessary for productive use of such software including customization / integration, data import / export, monitoring, technical support, maintenance, training, backup and recovery, consulting on transformation and change management (the “Services).  The Agreement shall remain in effect unless terminated as provided for herein.

 

Article I.         Definitions

“ Buyers” are users or companies  who purchase offers on Change4win.

"Offer" means any software, product, assignment, service, document, event, content or algorithm offered on the Change4win platform.

 “Offer Packages” allow Sellers to propose a packaged offer to meet specific requirements of a Buyer, composed of several sub-offerings from one or more sellers, and which can be coordinated by a coordinator.

“Offer Page” is where the Seller can describe their offer and the Offer’s terms, and the Buyer can purchase the Offer and create an order or subscribe to the offer.

 “Orders” are the formal agreement between a Buyer and one or more Sellers after a purchase was made from the Seller’s Service Page or the package’s Service page.

“Custom Offers” are exclusive proposals that a Seller can create in response to specific requirements of a Buyer.

“Custom Orders” are requests made by a Buyer to receive a Custom Offer from a Seller.

"Buyers Materials" all works and materials:

 (a)         uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Buyers  or by any person or application or automated system using the Buyers 's account; and

(b)          otherwise provided by the Buyers to Actino   in connection with this Agreement;

 

“Defect”  means a defect, error or bug having an adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

•             an act or omission of the Buyers , or an act or omission of one of the Buyers 's employees, officers, agents, suppliers or sub-contractors; or

•             an incompatibility between the Platform and any other system, application, program or software not specified as compatible in Schedule.

"Documentation" means the documentation produced by Actino  and  made available on the Platform to the Buyers   specifying how the Platform should be used;

“Platform” :  means the software platform known as Change4Win that is owned and operated by Actino SARL , and that will be made available to the Client as a service via the internet under this Agreement;

“Term” means the term of this Agreement;

“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

 “Disputes” are disagreements experienced during an order between a Buyer and Seller on Change4win.

“Change4win Balance” is the aggregated amount of your Revenue as a Seller and/or returned payments from cancelled orders as a Buyer.

“Change4win Credits” are credits that Change4win may provide users to be used only for purchases on Change4win, subject to these Terms of Service or any other applicable laws and/or terms.

 “Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Buyer Content” means any information, data, graphics, content and other materials provided or made available to Change4win by Buyer through the use of or access to the Change4win Platform.

Article II.      Terms

 Actino may revise these Terms from time to time. If Actino does revise these Terms, the revised Terms will supersede prior versions, effective at the time at which such revisions are stated to be effective. Actino will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Actino has on file. For other revisions, Actino will update the effective date of these Terms at the top of the page. Actino encourages you to check the effective date of these Terms whenever you visit Actino’s website or account portal. Your continued access or use of the Actino Platform constitutes your acceptance of any revisions, effective at the beginning of your next subscription renewal. If you don’t agree to the revisions, you should cancel your subscription to the Change4win Platform. Subject to the foregoing, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.

Article III.              Change4win platform

3.01          Buyers can access the Change4win platform by selecting a plan and filling out a form on the Change4win site. A new environment with a specific database will then be created for the buyer, and the login information for that account will be sent to the buyer.

3.02         The Buyers may choose to invite or add users with its user administration page.

3.03         The method and means of providing the Services shall be under the exclusive control, management, and supervision of  Actino, giving due consideration to the requests of Buyers.  Except as otherwise specified, the Services (including data storage), shall be provided solely from within Europe and on computing and data storage devices residing therein.

3.04         Subject to the terms and conditions of this Agreement, Actino will use commercially reasonable efforts to make the Change4win Platform available to Buyer pursuant to this Agreement based on the pricing plan for the Change4win Platform selected by Buyer.

 

 

Article IV.             Access and Fees

4.01         Buyers shall pay to Actino SARL Fees in advance for the services, on a monthly basis or annual basis in the manner and according to the prices set out on our Site or separately agreed upon.

4.02         First period to be paid upon execution

4.03         With the exception of a trial subscription or where a free plan applies, you may only access our platform by paying the applicable fees in advance, on a monthly basis or annual basis, as the case may be.

4.04         The buyer's designated site administrator can distribute the offers usage rights to the users to whom he or she has given access, or let users choose the offers they need to access. In the event that the administrator selects their accesses for users, the fees will be paid in advance without refund. In the event that the administrator gives some users the ability to choose the offers that they will access and use from a list of pre-determined offers, the fees will be paid in advance, but in the event that users do not use the proposed offers, the fees will be recalculated at the end of each month based on the usage. It will result in a decrease in the amount charged the following month to offset the non-use of the offers.

4.05         The buyer is entitled to increase or decrease the number of authorized Users of an offer. However, the change will be taken into account at the end of their paid subscription period.

 

4.06         You may request cancellation of our Service at any time, at which point we will cease billing your credit card in case you have chosen credit card as payment method. In such a case, your subscription shall not be refundable, even on a pro rata basis, and you shall instead be able to use our Service until the expiry of their paid subscription period.

4.07         Buyer will pay Actino the fees set forth in Change4win’s standard pricing plan, as may be updated from time to time, or any other order forms for the Change4win Platform ordered by you and accepted in writing by Actino. Actino may change the terms of its pricing plan at any time by updating the pricing plan webpages on its website.

4.08         If Actino does change the terms of its pricing plan, Actino will provide notice of the change on the Site or in email to you, at Actino’s option, at least 30 days before the change is to take effect. Buyer is responsible for checking the Site for any updates to the applicable pricing plan. All changes to change4win’s pricing plan will be effective upon Buyer’s next subscription renewal. All fees are due and payable at the beginning of your subscription term and each renewal thereof. To the extent that Buyer makes modifications to its subscription that require an adjustment to the fees owed to Actino (e.g. adding additional Authorized Users to a Buyer account), Actino shall send the Buyer an updated invoice each month (“Updated Monthly Invoice”), to capture such changes. All fees listed in an Updated Monthly Invoice are due and payable within 20 days of issuance of the applicable Updated Monthly Invoice. If Actino has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Actino. Further, Actino may restrict or suspend Buyer’s access to the Actino Platform if payment is not made within five (5) business days after Buyer’s receipt of notice (including by email) that payment is past due.

4.09         User Conduct. Buyer is solely responsible for all Buyer Content that Buyer and its users uploads, posts, publishes or displays (hereinafter, “upload”) or emails or otherwise uses via the Change4win Platform. The following are examples of the kind of Buyer Content and/or use that is illegal or prohibited by Actino. Actino reserves the right to investigate and take appropriate legal action against anyone who, in Actino’s sole discretion, violates this provision, including without limitation, removing the offending Buyer Content from the Change4win Platform, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.

4.10         Buyer agrees to not use the Change4win Platform to:

a) email or otherwise upload any Buyer Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Actino, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Actino or its users to any harm or liability of any type;

b) interfere with or disrupt the Change4win Platform or servers or networks connected to the Change4win Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Change4win Platform; or

c) violate any applicable local, state, national or international law, or any regulations having the force of law;

d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

e) solicit personal information from anyone under the age of 18;

f) harvest or collect email addresses or other contact information of other users from the Change4win Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Change4win Platform.

Article V.     Support Services and Upgrades

5.01         Feedback. Buyer may from time to time provide Actino suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Change4win Platform. Actino will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

5.02         Actino continuously works to improve the Services and may change the Services at any time. Actino  shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure the functionality of the Services ; Actino  may release the Services or their features in a beta version, which may not work correctly or in the same way the final version may work. Actino will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Service.  In all its Services Actino is bound by an obligation of mean.

5.03         Where Actino has improved the actual features and functionalities of a specific offer bought by a buyer, this buyer shall have an additional license and subscription right to use and access the new offer, at no additional charge, with the same rights, obligations, and limitations as for the Services.   

5.04         Actino shall provide the integration or training services, if any, that the buyers might need at an additional Services fees.

5.05         Change4win Platform Improvements and Marketing. Notwithstanding anything herein, Actino shall have the right to collect and analyze data and other non-confidential information relating to the use and performance of the Change4win Platform and related systems and technologies and Change4win will be free to (i) use such information and data to develop, improve and provide Actino’s offerings, and (ii) use and disclose such data in aggregate or other anonymous and de-identified form for marketing purposes and otherwise in connection with its business.

 

Article VI.   Warranties

6.01         Actino  warrants to Buyers :

(a)              the Services are fit for the ordinary purposes for which they will be used;

(b)              it is possessed of superior knowledge with respect to the Services;

(c)              it is the lawful licensee or owner of the Services (excluding any Buyers Data therein) and has all the necessary rights in the Services to grant the use of the Services to users;

(d)              it will perform its obligations under this Agreement with reasonable care and skill being bound by an obligation of mean only;

(e)              the Platform (excluding for the avoidance of doubt the Buyers Materials) will not infringe any person's Intellectual Property Rights ;

(f)               the Platform is and will remain free from viruses and other malicious software programs.

 

6.02         The Buyers  acknowledges that the services being developed as a

(a)              complex software is never wholly free from defects, errors and bugs, and Actino  gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;

(b)              Actino  does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible ;

 

 

 

Article VII. Limitations and exclusions of liability

7.01         Actino strives to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and The client expressly understand and agree that Actino shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from:

• (a)          the use or the inability to use the service;
• (b)          the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service;
• (c)           unauthorized access to or alteration of your transmissions or data;
• (d)          statements or conduct of any third party on the service;
• (e)          or any other matter relating to the service.

 

7.02         The liability of a party, whether based on an action or claim in contract, equity, negligence, tort, or otherwise for all events, acts, or omissions under this agreement shall not exceed the quarterly fees paid or payable on a yearly basis under this agreement, and provided, further, that the foregoing limitation shall not apply to :

• (a)          party's obligations of indemnification, as further described in this agreement;
• (b)          damages caused by a party's gross negligence or willful misconduct ; or,
• (c)           a party's breach of its obligations of confidentiality, as further described in this agreement. This section shall survive the termination of this agreement.

 

Article VIII.                  Data protection

8.01         Ownership.  Buyers’s data (“Buyers Data,” which shall also be known and treated by Actino as Confidential Information). Buyers Data inserted in the buyer's environment by the buyer or the users to whom he has given access, is and shall remain the sole and exclusive property of Buyers and all right, title, and interest in the same is reserved by Buyers.  This Section shall survive the termination of this Agreement.

8.02         The buyers and all users are responsible for safeguarding the password that he use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.

8.03         The buyers and all users are responsible for maintaining the confidentiality of, and protecting your account information (including your password). The buyers and all users are responsible for all activity on your account and change4win environment. The buyers and all users must notify Actino immediately upon becoming aware of any breach of security or unauthorized use of their account.

8.04         Actino Use of Buyers Data.  Actino could entrusted the hosting of the application and the databases to a company based in France or Luxembourg. This carefully selected company would be granted a limited license to Buyers Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Buyers Data only to the extent necessary in providing the Services.

8.05         Actino and the hosting company  shall keep and maintain Buyers Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations applicable law to avoid unauthorized access, use, disclosure, or loss;

Article IX.   Confidentiality

9.01         Non-Disclosure of Confidential Information.  The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.   The provisions of this Section shall survive the termination of this Agreement.

9.02         The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

 

Article X.      Data Privacy and Information Security. 

10.01      Undertaking by Service Actino SARL.  Without limiting Service Actino SARL ’s obligation of confidentiality as further described herein, Actino SARL shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Buyers Data; (b) protect against any anticipated threats or hazards to the security or integrity of the Buyers Data; (c) protect against unauthorized disclosure, access to, or use of the Buyers Data; (d) ensure the proper disposal of Buyers Data; and, (e) ensure that all employees, agents, and subcontractors of Service Actino   , if any, comply with all of the foregoing. 

 

Article XI.   Proprietary Rights.

11.01      Pre-existing Materials.  Buyers acknowledges that, in the course of performing the Services, Actino SARL  may use software and related processes, instructions, methods, and techniques that have been previously developed by Actino SARL  (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Actino SARL .

11.02      No License.  Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials.  Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.

11.03      As between the parties, Actino owns and will retain all right, title and interest in and to the Change4win Platform and any improvements thereto, and Buyer owns and will retain all right, title and interest in and to the Buyer Content. No rights are granted other than as expressly set forth herein.

 

Article XII. Term and Termination; Renewals

12.01      Term. The term of this Agreement will commence on the date these Terms are accepted by you and continue until your account is terminated as set forth below.

12.02      Auto-Renewal. Unless you and Actino agree in writing otherwise, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter. You may stop subscriptions from automatically renewing by terminating your account prior to the end of your then-current subscription term.

12.03      Termination and Suspension. You may terminate your account at any time through the account management tools made available through the change4win Platform. Actino may terminate or suspend your account in the event you commit any material breach of any provision of these Terms and fail to fix that breach within five (5) days after written notice of that breach. Actino may also terminate or suspend your account immediately for cause if: (a) there is reason to believe the traffic created from your use of the Change4win Platform or your use of the Change4win Platform is fraudulent or negatively impacting the operating capability of Change4win Platform; (b) Actino determines, in its sole discretion, that providing the Change4win Platform is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the change4win Platform; or (c) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If Actino suspends your account, Actino will make a reasonable attempt to notify you. Note that no refund will be provided in the event of any suspension or termination of your account.

12.04      Survival. Upon termination of this Agreement or your account, Buyer will discontinue any further use of the change4win Platform and all rights and obligations will immediately terminate, except that any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to payment, proprietary rights, confidentiality, disclaimers, indemnity, limitations of liability and termination, and the general provisions below.

12.05      Data Portability and Deletion. Buyer will be permitted to export or share certain Buyer Content from the change4win Platform, provided that Buyer acknowledges and agrees that the ability to export or share Buyer Content may be limited or unavailable depending on the type of plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of any subscription or account, Actino will have no obligation to maintain or provide any Buyer Content and may thereafter, unless legally prohibited, delete all Buyer Content on its systems or otherwise in its possession or control.

12.06      Indemnification : Buyer will defend, indemnify and hold Actino and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to the buyer Content or its breach of these Terms (“Claim”). Actino and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at buyer’s expense. Actino reserves the right, at buyer’s expense, to retain separate counsel for themselves in connection with any Claim or, if buyer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim that is subject to indemnification under this Section. Buyer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Actino or its affiliate in connection with any Claim. Buyer will also be liable to Actino for any costs and attorneys’ fees Actino incurs to successfully establish or enforce Actino’s right to indemnification under this Section.