Scope. These Terms govern the legal relationship between you and Vivan when you use our Services. You and Vivan are hereinafter jointly referred to as "Parties" and individually as "Party".
1.2
About us. The Services are provided by Vivan AG ("Vivan", "we", "us"), Zentralstrasse 50, 8003 Zurich. You can find more information about us here. If you have any questions or concerns, please contact us at contact@vivanplatform.com.
1.3
Vendor and Retailer. The Services are offered to persons or entities that commercially sell or distribute (alcoholic) beverage products ("Vendor") and to their customers who purchase and or re-sell (alcoholic) beverage products to individual consumers ("Retailer" and together with Vendor, "you" or "user").
1.4
Eligibility. Services are offered to Vendors and Retailers that have all necessary license from the applicable authorities in the applicable Canton to lawfully buy and/or sell (alcoholic) beverages on a commercial basis and all such licenses are in good standing and in full force and effect. We may, in our sole discretion, refuse to offer the Services to any person or entity that changes its eligibility criteria at any time.
2. Application of the Terms
1.1
By using the Services or by clicking to agree when the option is made available to you, you are agreeing to these Terms and consenting to modifications to Terms controlling your prior use of the Services if applicable. If you are entering into this agreement on behalf of a company, your acceptance represents that you are 18 years of age or older, have all necessary right, power, authority and authorization to bind such company to this agreement, to make purchases through the Services and to ensure payment therefore, in which case these Terms shall apply to the company.
3. Services of Vivan
3.1
Services. The "Services" consist of the Vivan website located at www.vivanplatform.com and all other interactive features, services and communications provided by Vivan ("Platform") as well as the sale and purchase of (alcoholic) beverages ("Products") offered in the Onlineshop. The Services enable Retailers to place Orders with a Vendor and for such Vendor to communicate with Retailers about Products and Orders. Vivan offers information and tools to connect Retailers and Vendors and facilitate Order placement.
3.2
License. Vivan grants you a non-exclusive, non-transferable, not sublicensable, revocable, limited license to access and use the Platform solely for its intended purpose.
3.3
Service Fee. Vivan may, in its sole discretion, charge a license, subscription, or service fee for the use of the Services as Vivan may determine from time to time. Vivan currently charges a service fee in the form of a percentage of the total Order value per applicable Vendor ("Service Fee"). The Service Fee is agreed between Vivan and the Vendor. Vivan will notify you of any changes or additional fees applicable to the Services prior to occurrence.
4. Your Account and usage guidelines
4.1
Registration. Prior to using the Services, you understand that you will have to register and create an account on the Platform ("Account"). For registration purposes, we request the company name, last name and first name of the contact person, email and telephone number of the contact person, the address, and the company identification number. In consideration of your use of the Platform and Services, you will: (a) provide true, accurate, and complete information about yourself and your business as prompted by the account registration pages ("Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
4.2
Login data. For the use of the Platform and Services, Vivan assigns login data to you. Passwords are to be chosen by you. You agree to use the usual security precautions, in particular a sufficient level of protection and the secure storage of login data and passwords. The login data may only be used by the person to whom they are assigned.
4.3
Usage guidelines. Your further agree
4.3
to promptly forward to Vivan any complaints in connection with the Services;
to cooperate appropriately in the search for the cause of malfunctions of the Services and in their elimination;
to comply with all applicable national and international laws and, in particular, not to access the Platform in order to commit illegal acts;
not to take any action that could infringe Vivan's IP Rights (section 7), damage Vivan's reputation or expose Vivan to claims for damages or sanctions;
in no event attempt to reverse engineer, decompile, modify or adapt in whole or in part, translate or disassemble the Platform;
in no event create derivative works from the Platform;
in no event copy or otherwise reproduce the Platform, in whole or in part, in its original or modified form;
in no event modify or remove any markings or copyright notices on the Platform or any media;
in connection with the use of the Platform, not to provide or publish any content or information that infringes the rights of third parties, such as copyrights, trademark rights or other intellectual property rights.
5. Onlineshop, Orders and Shipments
5.1
Onlineshop and prices. The Products listed on the Platform ("Onlineshop") are directed exclusively to Retailers in Switzerland. Vivan reserves the right to remove Products from the Onlineshop at any time and to remove or change any content.The prices displayed in the Onlineshop for Products are quoted in Swiss francs (CHF) and are net prices, i.e. excluding VAT. Prices are subject to change at any time. Vivan reserves the right to correct any inadvertent errors in pricing.
5.2
Orders and Order changes. By clicking the button "Place Order" you place a binding order for the Products in your shopping cart ("Order"). Vendors control their own acceptance of Orders and will have the option to reject any Order they deem to be invalid or modify any Order based on variations in pricing and stock. Please contact your Vendor in case you want to change or modify an Order. Vivan will confirm your Order immediately by email after acceptance of the Order by the applicable Vendor ("Order Confirmation"). A binding agreement is concluded upon receipt of the Order Confirmation. You can cancel an Order until you receive the Order Confirmation. Cancellation fees may apply.
5.3
Shipment. Deliveries to Retailers and returns of Products will be coordinated by the applicable Vendor. Shipment costs may apply for Orders below the minimum order quantity per Vendor and will be charged separately. Shipment costs will be detailed in the Order Confirmation. You are responsible for making your own determinations that Products ordered through the Services are suitable within 5 days after receipt of such shipment. Please notify the applicable Vendor within this period of any defects or incomplete shipments. Upon expiry of this period, the Products received from the applicable Vendor are deemed to be approved by the Retailer.
5.4
Disputes. Vivan makes no guarantee regarding the availability of the Onlineshop, pricing, accuracy, discounts, or timely delivery of any Products ordered by you through the Services. Any dispute, in particular, regarding an Order, shipment or Product, must be resolved between the Retailer and applicable Vendor and the Retailer and Vendor agree to fully release Vivan from any such claim.
6. Payments
6.1
Payments by Retailers. Payments can be made using the payment method invoice, credit card or any other payment method offered by Vivan. For each Order we reserve the right to not offer certain payment methods and refer to other payment methods. In case of invoice, the purchase price becomes due and payable on the day all shipments are dispatched to the Retailer. If payment is not made within 20 days of the due date, the Retailer will be in default. Vivan reserves the right to charge the Retailer additional reminder fees (i.e. 5% annual interest on the amount due and processing fees). The outstanding invoice amount (incl. reminder fees) may be assigned or sold for the purpose of debt collection. Any debt collector will claim the outstanding invoice amount in its own name and for its own account and may charge additional processing fees. In addition, the Retailer is obligated to reimburse all costs arising from the delay in payment. In case of credit card, your credit card account will be charged when the Vendor ships your order. Vivan may refuse additional Orders and suspend any Services until all overdue invoice amounts are paid in full. Vivan retains, on behalf of the Vendor, ownership of the (alcoholic) beverages until full payment has been received by Vivan from the Retailer.
6.2
Reports to Vendors. Vivan agrees to send on or around the first of every month a report detailing the type and quantity of (alcoholic) beverages paid by a Retailer, the name of the Retailer as well as the amount of the total Service Fee ("Report") to each applicable Vendor. Vivan will transfer the amount to the supplier (minus the Service Fee) within 5 days, resulting in an invoice for service fees.
7. Intellectual Property
7.1
IP Rights. Vivan owns all intellectual property rights in the Platform and all other rights related to the Platform ("IP Rights").
7.2
User Submission. In registering on the Platform, you may upload and post your own content on the Platform including messages, photos and other information about you or your business or Products ("User Submission"). In doing so, you expressly grant us a non-exclusive, royalty-free, worldwide, right to use, reproduce, modify, publish, translate, distribute, perform and display content contained in your User Submission, in whole or in part, and in any form to promote and market the Services and to make available the content in your User Submission to other users of the Services.
8. Confidentiality
8.1
Confidential Information. In particular, all non-public information about the Services shall be deemed confidential. Other information shall be deemed confidential if it is designated as such by the disclosing party at the time of disclosure and is neither obvious nor generally accessible (together "Confidential Information").
8.2
Non-disclosure and non-use. With regard to Confidential Information of the other Party, the Parties agree to:
4.3
treat it as strictly confidential and neither to disclose nor distribute it to third parties;
not use it for any other purpose than provided for in these Terms.
8.3
Duration. This confidentiality obligation shall apply prior to the conclusion of an agreement and shall remain in force after the end of the agreement. Statutory duties of clarification or information shall remain reserved.
9. Data protection
8.1
Data collection and use, including data collection and use of personal information and business data is governed by Vivan's privacy policy ("Privacy Policy"). You are encouraged to read the Privacy Policy as its terms are important to the use and your use of the Services.
10. Limitation of Liability
8.1
You acknowledge that Vivan, its officers, directors, employees, shareholders, representatives, successors, or assigns shall not be liable in any form whatsoever for any damages, including but not limited to direct, indirect, incidental or consequential damages, pecuniary loss, third party claims, loss of profits, loss of goodwill, loss of revenue or loss of data, in connection with the use, support or maintenance of the Services provided by Vivan. Liability is excluded in full to the extent permitted by law. You agree that your sole remedy is to cease using the Services. In no event shall Vivan's total liability to you for all damages, losses, and causes of action exceed the Service Fee received by Vivan during the immediately previous 3-month period.
11. Warranties
11.1
The Platform and its content is provided "as is" and "as available". Any warranty claims are expressly excluded to the extent permitted by law.
11.2
You represent that you and your employees, are fully able and competent to satisfy the terms, conditions and obligations herein, and your use of the Services is and will be in compliance with all applicable laws.
12. Term and Termination
12.1
Term. The usage of the Services is, unless otherwise agreed between the Parties, unlimited in time.
12.2
Termination. You or we may suspend or terminate your Account or use of the Services at any time, for any reason or for no reason. You are personally liable for any charges incurred through your Account prior to termination. We may also block your access to our Platform or your Account in the event that (a) you breach this Agreement, (b) we are unable to verify your Registration Data or (c) we believe that your action may cause financial loss or liability for you, our users or us.
12.3
Duration of obligations. The obligations of the Parties end at the termination of the agreement, provided that no further obligations arise from the agreement, except sections 7-10 which shall remain valid for both Parties even after the termination of this agreement.
13. Miscellaneous
13.1
Relationship of the Parties. The Parties do not have any relationship with each other that constitutes a simple partnership, joint venture or other corporate relationship. They are not authorized to act for or represent each other.
13.2
Notices. We will communicate with you by email or by posting notices on the Platform. You agree that all agreements, notices, disclosures, and other communications are provided to you electronically.
13.3
Entire Agreement. These Terms, together with each Order, Report, any applicable payment terms and the Privacy Policy, govern the contractual relationship between the Parties with respect to the Services.
13.4
Severability. If one or more provisions of these Terms are invalid or ineffective, the remaining provisions shall remain unaffected. The Parties shall replace the invalid or ineffective provisions with such provisions that are valid and effective, best reflect the original intention of the Parties and, if possible, lead to the same economic result.
13.5
Amendments. Vivan shall inform you of any changes to these Terms. The new Terms shall be deemed accepted unless you object to the changes within 30 days from the date of information.
13.6
Successors and Assigns. The rights under this agreement may only be assigned with the prior written consent of Vivan. The assignment by Vivan is permitted.
13.7
Waiver of Rights. If one Party fails to perform parts of its contractual obligations and the other Party does not insist on proper performance, it does not thereby waive the right to perform other contractual obligations.
13.8
Applicable law and jurisdiction. Swiss law is applicable. The state courts at the registered office of Vivan shall have exclusive jurisdiction for disputes.
