Proficircle (the “Platform” or “Proficircle platform”)

Last update – 01/31/2022

Welcome on Proficircle! This is an online marketplace bringing together services providers and the product sellers with users, by facilitating a tender or direct sale among themselves. Accessing and/or using the Proficircle platform, which includes the application Proficircle and access to the www.Proficircle.com website (“the Proficircle platform”), is made according to the provisions in these Terms and Conditions (the “Terms”).

In this respect, by accessing the Proficircle platform you express your explicit approval to the Terms, without the need of any additional formalities. If you do not agree with the provisions of the Terms, then we kindly ask you to immediately stop using the Proficircle platform.

1. Definitions. User account

1.1. In this document, the words starting with a capital letter shall have the following meaning:

1. “Company”, “We or our means the company Proficircle SA, a Swiss legal entity, headquartered in rue du Môle 1, 2000 Neuchâtel, Switzerland, registered with the Trade Registry under CHE-101.662.121;

2. “Buyer” means any individual or legal entity (in case of an individual, over 18 years of age), who is registered and uses the Proficircle platform, while accepting these Terms, and who wants to buy goods from the Sellers or to benefit from the services provided by the Suppliers registered on the Proficircle platform;

3. “Supplier” means any legal entity registered on the Platform Proficircle, in order to provide services to the Buyers, following the procedures defined in the platform afferent to the tender or to the direct sale that takes place within the Platform;

4. “Seller” means any legal entity registered on the Platform Proficircle, in order to sell goods to the Buyers, following the procedures defined on the platform afferent to the tender or to the direct sale that takes place within the Platform;

5. “User” refers to the Buyer, Supplier or Seller. Any provision referring to the notion of User, shall be applicable to all three categories.

1.2. In order to have access to all features available for each type of User, namely the Buyer, Supplier or Seller, you must log in and create an user account on our Platform (“User Account”), fill in the mandatory fields and select the category/type of product or service applicable to you.

1.3. In order to create the User Account, we need, among others, your name and surname, email address and phone number. You must supply exact, current and complete information about you for the User Account to be created.

1.4. It is forbidden to use the accounts of other persons in order to connect to the Proficircle platform.

1.5. When you use the User Account, you must take the following precautions:

• (i) choose a strong password;
• (ii) keep and promptly update, as necessary, the information of the User Account;
• (iii) protect the identification data of your User Account and the access to your Account.

1.6. You confirm and agree that you are responsible for all activities taking place in your User Account and you accept all risks of any authorized or unauthorized access of your User Account, insofar as the law allows.

2. Use and functioning of the Proficircle platform

2.1. The Company offers the Buyer, based on the account created by the latter, access to the Proficircle platform where it may buy goods from the Sellers and/or it may benefit from the services provided by the Suppliers.

2.2. Any sale of goods by the Sellers, or provision of services by the Suppliers, are subject to the provisions of these Terms.

2.3. The procedure related to the tender taking place on the Proficircle platform is the following:

• 1) The Buyer sends a request through the contact form, with the possibility of attaching a drawing of the warehouse or room and a detailed request, which will be assigned to a Technical Consultant (“CT”).
• 2) The Buyer must register an account on the Proficircle Platform.
• 3) After being contacted by the CT, the Buyer uploads a Request for Projection (” RFP”) on the Proficircle platform, containing all details of the project. Alternatively, the Buyer may fill in an RFP template. Where necessary, the CT may offer technical assistance to fill in the RFP.
• 4) The designer, either appointed by the CT or chosen by the Buyer, shall review and amend the RFP, where necessary. Subsequently, the final version of the RFP must be signed by the Buyer.
• 5) The Buyer establishes the terms and conditions of the tender for the services and/or goods.
• 6) Through the Proficircle Platform, Suppliers and/or Sellers deemed most appropriate, in its opinion, to fulfill the terms and conditions imposed by the Buyer, are invited to the tender. Alternatively, the Buyer may designate certain Suppliers and/or Sellers. The invitation for tender may be made also to the services providers or sellers of goods, which do not have an account on the Proficircle Platform, at the Buyer’s choice.
• 7) The Suppliers and/or Sellers, after receiving the invitation, must confirm their participation to the tender and send the offers in response to the Buyer’s requests.
• 8) The offers must contain information regarding the costs for transportation and installation, mounting or software, as the case may be. Also, the offers must contain a brief description of the parameters, respectively the price of equipment, the weight of products, the volume of goods, the color of goods, type of material, guarantee period, optional services applicable after the sale, certificates of quality, duration of manufacture, duration of transportation, duration of installation, a preliminary version of the respective agreement and the afferent offer.
• 9) The tender may last between 2 and 10 working days.
• 10) At the end of the tender, the Buyer may choose one of the 3-5 best offers, organized based on the parameters previously chosen by the Buyer.
• 11) Following the notification of tender winner, the Buyer and the Supplier or Seller, as the case may be, shall sign the agreement. The Parties may use the models of the agreement proposed by the Proficircle Platform, to be modified according to the commercial terms agreed between the parties.

2.4. As an alternative to the provisions in art. 2.3., the Buyer may choose to buy goods directly from the Sellers, through direct acquisition. If the tender option was chosen by the Buyer, the Buyer may not agree in parallel a direct acquisition procedure with the Suppliers or Sellers participating to the said tender. If, despite taking part in the tender, the Buyer trades directly with the Supplier and/or Seller, then, pursuant to the penalty clause herein, the Supplier and/or Seller shall be obliged to the full payment of the fee afferent to the respective transaction within 5 calendar days. The Supplier and/or Seller shall be liable for the slightest fault, without a need to prove the existence of the prejudice. The fee is calculated according to the provisions of art. 3 of these Terms.

2.5. As a result of the steps indicated above, the Company, Proficircle through the Platform, has access and processes certain information found in the electronic accounts of the registered Buyers, Suppliers and Sellers, such processing taking place in accordance with the provisions of the Confidentiality Policy, accessible on Proficircle.

2.6. During the use of the Proficircle Platform, the User has the possibility to undertake any of the following actions at any time:

• 1) add, modify or erase the RFP from its account;
• 2) add or change details of a credit card it uses for making payments;
• 3) access the settings, where more details may be read about the Proficircle Platform;
• 4) view the history of the transactions;
• 5) modify the price plan (”Subscription”) based on which it uses the Proficircle platform, by switching to a superior or inferior plan, as the case may be

2.7 The User is liable to keep the identification and connection data afferent to its account in a safe & secure place, in order to prevent or reduce the chances of unauthorized access into the account created on the Proficircle platform.

2.8 If, during the use of the Proficircle platform, the User notices any elements which might indicate the inappropriate functioning of the Proficircle platform, it may notify this fact to the Company by an e-mail sent to [email protected]

2.9 Insofar as the personal data offered by the User upon filling in the form for registering on the Proficircle Platform are false, inaccurate, or incomplete, the Company, after observing this directly or following a notice, may cancel or temporarily suspend the User’s access to the account or the operations carried out in this account, totally or partially, or it may refuse to supply any or all services available on the Proficircle platform.

2.10 The Company is not part of the contract for the sale of goods or services provision concluded between the Buyer and the Supplier/Seller. For clarity, please see the provisions of Chapter 5 on the Limitation of liability.

3. Subscriptions and payments

3.1. The use of the Proficircle platform may be done for free, pursuant to a trial account, or against the payment of a subscription, depending on the functionalities the User wants to access.

3.2. The price due for each type of subscription may be consulted at Proficircle.

3.3. Depending on the selected Subscription, the User has the rights mentioned at Proficircle.

3.4. In order to pay the subscription amount, the User shall be notified to insert credit card data it wants to use for the payment. The credit card may be modified by the User at any time, after the initial configuration.

3.5. The Company reserves its right to modify the prices of the subscription indicated at Chapter 3 of the Terms, respectively from https://www.proficircle.com/homes/terms, which shall be applicable starting with the next payment. For the avoidance of any doubt, the new use rates shall not apply to the rates valid on the date when the use rates are applicable.

3.6. Waiving any type of paid subscription does not give the User the right to the reimbursement of the afferent rate.

3.7. In case the Company cannot debit the credit card introduced by the User for the subscription price, the Company shall send an e-mail notification to the User, using the e-mail address introduced by the User upon the configuration of the account, informing it about this impossibility and shall ask for the indication of another credit card. If the User fails to introduce a valid credit card within 24 hours as from the communication date of the notification, its account shall be suspended for a period of 30 days, until the entire payment of the outstanding amount takes place. If, after this period elapses, a valid credit card is not added, the User account will be deleted. The deletion of the account does not give the User the right to the reimbursement of the subscription price.

3.8. After the end of a subscription period for which the User paid the subscription, a new period, with an identical duration as the initial one, shall start, and a new subscription price shall be automatically debited from the credit card introduced by the User;

3.9. At any time during the use of any of the Platform versions, the User may express its desire to use another version of the Platform. If the User uses one of the Platform versions for which the Company charges a subscription price and wants to use the trial version of the Platform, this option shall be saved within the Platform and shall be reflected starting with the next day after the subscription of the version used by the User ends. For the avoidance of any doubt, in this case, the Company shall not reimburse any part of the subscription price to the User.

3.10. The fee shall be paid only by the Supplier/Seller and is calculated as part of the transaction sum. The fee afferent to each transaction shall be transferred within 15 calendar days after signing the delivery-receipt minutes or shall be automatically charged from the credit card introduced by the User into its Account. The value of the fees is provided in the contract.

3.11. The Company invoices the fee to the Supplier or Seller within maximum 15 calendar days after the completion of the work, irrespective of the term indicated by them to the Buyer.

4. Modification of the Terms

4.1. The Terms may be modified at any time by the Company, without any prior notice to the User. By continuing to access and/or use the Proficircle platform, the User is deemed to have given its consent and agreement with the respective modifications.

4.2. The Company may suspend or interrupt, temporarily or permanently, access to any part or feature of the Proficircle platform.

4.3. The Company shall not be liable at all for the modification of the Terms or for the replacement or disabling of the access to any part or feature of the Proficircle platform.

5. Limitation of liability

5.1. The Company is not liable, in any situation, for any damage caused directly or indirectly and for any direct or indirect loss of income, suffered as a consequence of using or interrupting the use of the services offered by the Proficircle platform.

5.2. The Company acts only as an intermediary of the direct tender/sale of goods or services and is not involved in, and does not control the actual transaction between the Buyer and the Supplier or Seller. For this reason, the Company is not liable for:

• 1) the quality, safety, legality, truth or accuracy of the offers or information given by the Users;
• 2) the RFPs published by the Buyer;
• 3) the Buyer’s solvency or capacity to pay;
• 4) the capacity or possibility to deliver the goods or services by the Sellers or Suppliers.

5.3 The Proficircle platform makes available for the User answers to the frequently asked questions which may result from using the Platform. At the same time, the User may contact the Company at any moment during the use of the Platform in order to send questions with regard to any aspect within the Platform. In this context, the Company is not liable for the possible prejudice caused by the inappropriate use of the Proficircle Platform.

5.4 The User is entirely liable for all operations made through the Proficircle Platform.

5.5. You acknowledge and agree that, insofar as the applicable law allows, the Company shall by no means be liable to the User or any third party for any incidental, indirect, special, significant, typical or punitive damages, including but not limited to damages for loss of profit, (produced directly or indirectly), the loss of good will or trading reputation, loss of data, the acquisition cost of substituent goods or services, or any other intangibles, deriving from or in relation with the Proficircle platform, regardless of the source of liability (contract, guarantee, delict, strict liability, liability for products, or other sources) even if we were informed about the possibility of such damages.

5.6 You understand and agree that we are not liable for the failure or delay in fulfilling our obligations resulting from any condition beyond our reasonable control, including but not limited to third parties’ acts or omissions, earthquakes, fire, flood, governmental actions, acts of terrorism, labor conditions, blackouts, internet disruptions or other server interruption afferent to the Proficircle Platform.

5.7. You acknowledge that the Proficircle platform is available on the Internet and you understand and accept the inherent security risks associated to these applications and websites, including but not limited to the risk of losing the Internet connection, the risk of malicious programs, the risk of hardware or software defects and the risk of unauthorized access by third parties to the User account. Thus, you agree that we have no liability with regard to any defects, failures of communication, delays, errors, or any breach of security which may occur.

5.8 We use third-party products for payment processing (“Payment Processors”) made from your account on the Proficircle platform. Payment processing may be subject to terms, conditions and confidentiality policies of Payment Processors, in addition to these Terms. In this respect, the User understands that they must also agree with the Terms, Conditions and Confidentiality Policy of PayPal B2B or other agreed payment methods, as described in the payment section of the Proficircle Platform.

5.9. The Proficircle Platform may contain hyperlinks to third parties’ website, application or resources. These links to third parties’ pages are offered only for the User’s information. Due to the volatile nature of the information on the Internet, the Company cannot control the nature or content of these external sources and consequently it is not responsible or liable for the use, the lack of availability of third parties’ websites, or for their content and advertising or for other materials available on these third parties’ websites which you could access while using of the Proficircle platform.

6. User Content and Conduit

6.1. The User is the only one responsible for the content it creates, transmits and/or distributes through the Proficircle Platform (“User Content”).

6.2. The User may not create, transmit and/or distribute any User Content that:

• ● is not allowed or illegal, which would constitute, encourage or supply instructions for a crime, which would breach the rights of any third parties, or otherwise create a liability or breach of any local, national or international law;
• ● contains denigrating, profane, obscene, pornographic, sexually explicit, indecent, vulgar, violent, harassing, malicious, threatening, offensive, discriminating, abusive, advertising elements, including any fraudulent, misleading or otherwise unpleasant elements;
• ● impersonates any individual or entity or otherwise distorts the affiliation to a certain individual or entity without right;
• ● may breach in any way any kind of patent, trade mark, trade secret, copyright, or another intellectual property right;
• ● is meant to mislead or trick other Users of the Proficircle platform;

6.3. The User is the only one liable for its conduct during its access or use of the Proficircle Platform.

6.4. The User agrees to use the Proficircle platform only for legal, adequate purposes which are in compliance with these Terms and with any applicable laws and regulations.

6.5. The User agrees not to do and allow any third party to do, including but not limited to any of the following:

• ● It shall not use the Proficircle platform for any illegal, unauthorized purpose and it shall not encourage or promote any illegal activity or breach of these Terms or any other rules or policies established by the Company.
• ● It shall not use the Proficircle platform in order to violate another party’s legal rights or legitimate interests, including but not limited to the transmission or making available in any other way of the content breaching intellectual property rights of any party through the Proficircle platform;
• ● It shall not eliminate any copyright, trademark or other notifications regarding the intellectual property rights on the Proficircle platform, or any part of it;
• ● It shall not modify, adapt, underttake hacking actions and/or translate the Proficircle platform;
• ● It shall not use any robot, spider, crawler, scraper or other automated means or interfaces which are not supplied by us in order to access the Proficircle platform or to extract data;
• ● It shall not try to indicate in any way that it has a relation with the Proficircle platform or the Company, unless expressly accepted previously;
• ● It shall not load, send, distribute or spread any User Content which may be construed as denigrating, illegal, fraudulent, obscene, harassing or unpleasant;
• ● It shall not distribute other damaging components such as, but not limited to worms, viruses, Trojan horses, corrupt files, defects;
• ● It shall not impersonate any other individual in any way;
• ● It shall not exploit the Proficircle platform for any unauthorized commercial purpose;
• ● It shall not access or use the Proficircle platform for the purpose of creating a product or service competing with the products or services developed by the Company;

7. Intellectual property

7.1. The Company is the holder of all rights over the content of the Proficircle Platform, including but not limited to images, texts, trademarks, logos, web design elements, scripts, applications and databases, copyrights and afferent rights. In this sense, it is forbidden to use any elements of content regarding the Proficircle Platform, without the prior written agreement of the Company.

7.2. Unless otherwise indicated by the Company, all elements of the Proficircle Platform, the entire content and materials within are owned by the Company and are protected by intellectual property rights. For the avoidance of any doubt, visual interfaces, design, text, graphics, images, systems, information, data, methods, software, computer code, organization, services, all other elements and any other documentation or any other auxiliary materials supplied by the User are Company property and are protected by copyrights, patents, trademarks, design, trade secrets, any other intellectual property rights and applicable law.

7.3. The User may use the Proficircle Platform and the afferent content only for the purpose of acquiring goods and/or services from the Sellers or Suppliers by tender or direct sale.

7.4. Any use of the Proficircle Platform or of the content herein otherwise than as mentioned herein, without the Company’s prior written approval, is strictly forbidden.

8. Applicable law. Litigations

8.1 The terms as well as any contractual obligations deriving from or in relation to them shall be construed according to the Romanian laws.

8.2 The Parties involved in the dispute shall first try to amicably settle any conflict.

8.3 If an amicable settlement is not possible, then Romanian courts shall be competent to settle the litigation, having the exclusive competence of settling any litigation related to the use of the Proficircle Platform and of these Terms.

9. Final provisions

9.1 If any provision of these Terms is deemed illegal, null or inapplicable, such provision shall be deemed separate from these terms and shall not affect the validity and applicability of any remaining provision.

9.2 The applicability of these Terms is only at the Company’s discretion, and the failure to apply any of the provisions in certain situations does not constitute a waiver of the Company’s right to apply those provisions in other occasions.