Terms and Conditions

VOCA’S TERMS & CONDITIONS

Version of 15.11.2023

1. General

   These General Terms of Use of Voca (hereinafter: the "Terms") apply to any contract to which they are integrated, concluded between Octree Sàrl (hereinafter: "Octree") and its contracting party (hereinafter: the "Partner" and, together with Octree, the "Parties").

   The Terms apply from the conclusion of the contract and are considered an integral part thereof.

   In case of contradiction between the provisions of the contract and those of these Terms, the former prevail over the latter.

2. Services and Obligations of Octree

   • Right of Use

   Octree grants its Partner a non-exclusive and non-transferable right to use the Voca software (hereinafter: "Voca"), which allows extended and facilitated use, particularly in hosting, administration, and configuration, of the open-source code Decidim (hereinafter "Decidim"), enabling the organization of participatory processes on subjects determined by its users.

   The Parties contractually define the scope of the right of use granted by Octree to its Partner, especially the type and extent of Voca's functionalities to which the Partner may have access.

   The Partner confirms awareness of the functioning of Voca and the functionalities to which the contract gives access; any mismatch between these functionalities and the Partner's needs cannot be considered a problem in the use of Voca requiring Octree's intervention.

   • Maintenance of Voca Use
     In principle, the Partner can use Voca at any time and without restriction. However, Octree reserves the right to temporarily suspend access to Voca for short periods for updates, maintenance, or assistance. Whenever possible, Octree informs the Partner in advance of any temporary interruption of access to Voca. Octree also undertakes to ensure that interruption periods are as brief as possible.

   • Assistance in Case of Interrupted or Restricted Use

     If, for reasons other than those mentioned in section 2.2, the Partner is entirely prevented from using Voca, Octree undertakes, throughout the year, to deploy all efforts reasonably expected of it to allow the Partner to use Voca again as quickly as possible.

     If the use of Voca, although possible, is restricted or complicated (due to malfunctions, slowdowns, etc.), Octree undertakes to provide assistance to the Partner within a reasonable time and to ensure that the issue encountered by the Partner is resolved within reasonable timeframes.

   • Voca Updates

     Octree provides the Partner with any necessary updates to Voca to ensure its operation or to correct issues encountered by the Partner or third parties in the use of Voca.

     Octree is not obliged, however, to provide the Partner with updates intended to expand Voca's functionalities or offer new ones free of charge.

   • Data Protection and Confidentiality

     Octree processes diligently and confidentially all data obtained in the execution of the contract, whether concerning the Partner itself, its organs, employees, affiliates, clients, co-contractors, or third parties.

     Octree protects this data against losses and unauthorized access through all appropriate technical and organizational measures.

     The processing of data by Octree is subject to an annex document entitled "Declaration on Octree Sàrl's Data Protection concerning the Voca Software," which the Partner confirms having read and accepted.

3. Limitation of Liability

   • General Limitation of Liability

     Octree is not liable for damages caused by slight negligence on its part or that of its employees or organs. It is therefore only responsible in case of willful misconduct or gross negligence.

   • Force Majeure

     Octree assumes no responsibility when prevented from providing its services due to force majeure. Force majeure includes, in particular, unexpected decisions by state authorities, power outages, strikes, physical or electronic attacks, epidemics, pandemics, wars, terrorist attacks, and natural disasters.

   • Other Exclusions of Liability

     Octree is not responsible for the use that the Partner, its organs, employees, affiliates, clients, co-contractors, and/or third parties make of Voca or Decidim.

     Octree cannot be held responsible in case of impossibility for the Partner, its organs, employees, affiliates, clients, co-contractors, and/or third parties to use Voca or Decidim in whole or in part. Octree is only responsible for providing the assistance services described in section 2.3.

4. Services and Obligations of the Partner

   • Use in accordance with the law and the contract
     The Partner is responsible for using Voca in a manner consistent with the law and the contract. In particular, the following is considered non-compliant with the law or the contract:

     • any use of Voca by a third party that has been authorized by the Partner without right or made possible by negligence of the Partner (cf. section 4.2); and

     • any use of Voca that constitutes or contributes to the commission of a criminal offense or an act preparatory to the commission of such an offense.

   • Personal Use

     Unless otherwise stipulated in the contract, the Partner is generally authorized to use Voca alone; its right is exclusive and non-transferable, so that any use by anyone other than the Partner, its organs, and employees is strictly prohibited.

     However, the Partner is allowed to make commercial use of Voca in the sense that it can use it to provide paid services to its own co-contractors, or allow them to temporarily use Voca themselves, as long as this use is strictly controlled, both materially and legally, to ensure that the Partner's co-contractors can only use Voca under its responsibility and for the purposes defined by it.

     The Partner is responsible for taking all organizational and technical measures to prevent any unauthorized use of Voca; any negligence allowing unauthorized third parties to use Voca is considered a contractual violation.

   • Maintenance of Conditions Allowing the Use of Voca

     The Partner must create and maintain adequate technical conditions for the use of Voca throughout the contract, including having a technical and computer infrastructure protected from any risk of malicious intrusion by third parties or viruses.

   • Authorization of Access to Technical and Computer Infrastructure

     When the Partner reports to Octree an issue with the use of Voca, it authorizes Octree to take all necessary measures to restore normal use of Voca at the same time.

   • Payment

     The Partner undertakes to pay Octree's services and any other amounts due on a legal or conventional basis according to the provisions of section 5 of these Terms.

   • Data Protection

     The Partner undertakes to comply at all times with the applicable legal framework for data protection, in particular the General Data Protection Regulation (GDPR) of the European Union and the Swiss Federal Data Protection Act (LPD).

     The Partner also undertakes to collaborate as far as possible in the implementation by Octree of its "Declaration on Octree Sàrl's Data Protection concerning the Voca Software."

     In this context, the Partner authorizes Octree to host with third parties all personal data processed, whether it concerns the Partner itself, its co-contractors, or third parties. The Partner also undertakes to ensure that its own co-contractors give the same authorization to Octree.

   • Consequences of a Violation of the Partner's Obligations

     In the event of a violation by the Partner of its obligations under sections 4.1 and 4.2, Octree has the following cumulative rights:

     • demand that the Partner comply immediately with its injunctions and adjust its behavior and/or use accordingly;

     • modify, limit, or interrupt its own services, including suspending the use of Voca;

     • terminate the contract with immediate effect under art. 6.3, subject to prior notice and setting a deadline of 10 (ten) days for the Partner to adjust its behavior and/or use;

     • claim damages from the Partner.

       Octree assumes no responsibility for the case where the measures mentioned above cause any damage to the Partner, who cannot claim any compensation in any case.

5. Prices and Payment Terms

   • Prices

     The prices mentioned in the contract are understood, unless otherwise agreed between the Parties, in Swiss francs (CHF) and excluding VAT.

     When a single and periodic price is contractually provided, it is understood, unless otherwise agreed between the Parties, both for the use of Voca and for any assistance service.

     When an hourly rate is contractually provided for assistance services, the actual time spent by Octree on the services in question is decisive for calculating the amount due by the Partner. Any estimate provided by Octree in this regard is purely indicative.

   • Invoicing; Payment Deadline; Objection
     Octree's invoices must be paid within thirty (30) days from their receipt.

     The Partner may make a reasoned objection to an invoice within fifteen (15) days of its receipt; after this period, the invoice is considered accepted by the Partner. An objection does not change the payment deadline for the relevant invoice, which the Partner remains obliged to pay in full within thirty (30) days from its receipt. An objection also does not authorize the Partner to invoke set-off, which is excluded, between any claim it claims to have and any debt to Octree.

     Octree undertakes to examine the reasons for the objection and to inform the Partner of its position on the matter as soon as possible. If Octree accepts the objection, in whole or in part, Octree will credit the corresponding amount on its next invoice or, if the contract has ended, reimburse it to the Partner. In case of persistent disagreement regarding the objection, the Parties are free to take any legal action available.

   • Late Payment and Consequences

     If the Partner has not fully paid an invoice by the due date, it is automatically and immediately considered to be in default of payment for the amount it has not paid.

     The Partner is then indebted to Octree for a default interest of 5% per annum, from the due date, on the amount it has not paid. It is also liable for all costs incurred by Octree due to the late payment.

     In case of late payment, Octree sends a reminder by email and/or by postal mail to the Partner without delay.

     If the Partner has still not fully paid the outstanding invoice within 30 (thirty) days from the notification of the reminder sent by Octree, it may, cumulatively:

     • continue to demand payment and/or damages;

     • modify, limit, or interrupt its own services, including suspending the use of Voca; (c) terminate the contract with immediate effect under section 6.3.

     Octree assumes no responsibility for the case where the measures mentioned above cause any damage to the Partner, who cannot claim any compensation in any case.

6. Non-Ownership of Voca by the Partner

   For the duration of the contract, the Partner has a non-exclusive and non-transferable right to use Voca. The Partner has no rights of any kind – in particular, no intellectual property rights – over Voca, any related development, or the information and documents provided or made accessible by Octree in connection with Voca.

7. Duration and Termination

   • Duration of the Contract

     Unless otherwise stipulated in the contract, the contract is concluded for an indefinite period.

     If the contract is concluded for a fixed term, it is automatically renewed at its expiry for a duration identical to the initial term, unless written notice is given by one of the Parties to the other at least 2 (two) months before a term (initial or subsequent).

   • Ordinary Termination

     If the contract is concluded for an indefinite period, each of the Parties can terminate it by giving written notice of 2 (two) months for the end of a month.

     If the contract is concluded for a fixed term, it cannot be terminated before the end of this term, subject to section 6.3.

   • Termination with Immediate Effect

     Octree is authorized to terminate the contract with immediate effect, without notice, for just cause. Just cause is given in particular in the event of:

     • violation by the Partner of its obligations under sections 4.1 and 4.2, which is not remedied despite prior notice and setting a deadline of 10 (ten) days for the Partner to adjust its behavior and/or use;

     • payment arrears that the Partner has not remedied within 30 (thirty) days from the notification of a reminder sent by Octree; or

     • bankruptcy or insolvency of the Partner.

       Octree assumes no responsibility for the case where the termination of the contract with immediate effect would cause any damage to the Partner, who cannot claim any compensation in any case.

   • Effects of Termination

     As of the date of termination, the respective obligations of the Parties come to an end, subject to:

     • claims arising during the term of the contract that have not yet been settled;

     • obligations under section 2.5;

     • obligations arising from the termination of the contract itself.

       Octree's claims that have not already been invoiced will be the subject of one or more invoices sent to the Partner, which must be paid by the Partner within 30 (thirty) days from their receipt.

8. Miscellaneous

   • Written Form

     The conclusion and amendment of the contract, including this provision, require written form.

   • Severability

     If any provision of the contract is found to be void or invalidated, it shall not affect the other contractual provisions. The Parties undertake to promptly replace any null or invalidated provision with a valid provision whose content closely resembles the original provision.

   • Assignment
     Claims arising from the contract are non-transferable.

9. Jurisdiction and Applicable Law

   • Applicable Law

     The contract is governed by Swiss law, excluding conflict of law rules.

     The contract constitutes an ad hoc agreement, governed exclusively by its provisions and those of these Terms. The Parties do not intend to conclude a named contract under the Swiss Code of Obligations, particularly not a sales contract (Art. 184 et seq. CO) or a business transfer contract (Art. 363 et seq. CO).

   • Jurisdiction

     Any dispute arising from or in connection with the contract is exclusively settled by the ordinary courts at Octree's registered office.