Terms and conditions

CERTIFY | Software as a Service - General Terms & Conditions

These general terms and conditions (GTC) form together with any schedule thereto (Schedule) a legal agreement (Agreement) between CERTIFY Community SA (CHE-241.821.797), Rue de la Coulouvrenière 8, 1204 Genève (Provider) and any user subscribing for the use of the Platforms (as defined below) whether an individual or a legal entity (User; and together with Provider, the Parties).

1.1. Scope. These GTC govern the User's rights and obligations with respect to the provision by Provider and the access and use by the User of the platforms, content and services subscribed by User (the Platforms), which include the mobile app, CERTIFY's API, and the online tools CERTools, the browser extension and the services made available through or in connection with it (together with the provision of the Platforms, the Services).

1.2. Categories of the Users. The Services may be used by the Users, their employees and their affiliated users who have been authorized to use the Platforms by any User (the Affiliated Users).

1.3. No Further Obligation. Provider shall have no obligation to provide any service or software which are not expressly specified in these GTC.

Acceptance. By setting up an account or logging in for the use of the Platforms, User expressly agrees to be bound by the terms hereof. For the avoidance of doubt, if User is a legal entity, any subscription for the use of the Services by any of User's employees, agents or representatives, on behalf of User, is deemed as acceptance of the terms of these GTC by User. If you are subscribing for the use of the Services or using them on behalf of a legal entity, you represent and warrant that you are duly authorized to do so.

2. Right to Access and Use

2.1. In General. Subject to User's compliance with all terms and conditions of these GTC, Provider grants to User, during the Term, a revocable, non-exclusive and non-transferable right to access and use the Platforms and the content displayed on, or generated through, the Platforms (the Content and together with the Platforms, the Licensed Products), without the right to grant sublicences, strictly in accordance with these GTC and the documentation provided by Provider.

2.2. Users. Except as stipulated otherwise in these GTC, User is expressly prohibited from using the Licensed Products on behalf or for the benefit of any third-parties, or to sublicense the Licensed Products to any third party, without Provider's express prior written consent. If User is a legal entity, its account shall be used by one of its employees only and Provider shall take appropriate steps to ensure compliance with the GTC by such individual. Users shall comply with the following restrictions:

a. For End Users. End Users are granted access to the Platforms, including the tools available for tagging content. They shall use the Licensed Products for their own purposes in accordance with these GTC and shall take appropriate steps to ensure compliance with the GTC by Affiliated User.

b. For Experts. Experts are granted access to the Platforms in order to use the available tools and to create, edit and tag Content.

c. For Editors. Editors are granted access to the Platforms in order to use the available tools and to create, edit and tag Content.

d. For Organizations. Employees, agents or representatives of an organization, which can be either End Users, Experts and/or Editors, which are Users of the Platforms (the Organization) and are authorized by the Organization to access and use the Platforms.

e. For Affiliated Users. Affiliated Users shall use the Licensed Products strictly on behalf of the Users to whom they are affiliated (End Users, Experts or Editors) and shall abide to the instructions of the Users to whom they are affiliated in relation to all uses of the Platforms.

2.3. SaaS Offering. The Platforms are provided as a SaaS offering (Software as a Service); therefore, Provider shall only grant to User a right to access the Platforms as per Section 2 and shall not deliver any copy of the Platforms.

2.4. Developments. If, in connection with the Services, Provider customizes, develops or makes available additional features for, respectively provides patches, bug-fixes, updates or upgrades to the Platforms and/or Content (Developments), such Developments shall automatically become part of the Licensed Products, unless otherwise stipulated by Provider.

2.5. Changes. User acknowledges that Provider may implement modifications to the Services or Content, which may include modifications to the layout or functionalities of the Platforms as Provider determines, and Provider will have the unfettered right to remove any Content from the Platforms or change their functionalities at its sole discretion.

3. Account and Credentials

3.1. Account. In order to access and use the Services, User shall have created a personal account (the Account) and be logged-in to such Account. To create an Account, User must:

a. for End Users and Experts, be an individual who is 13 years old or more;

b. for Editors, be an individual who is 18 years old or of legal age in User's country of residence if such age exceeds 18;

c. if the Account is created for a legal entity, be duly authorized to do so;

d. if the Account is created for End Users, Experts and/or Editors who are part of an Organization, be and remain (i) an employee, agent or representative of an Organization which is a user of Provider in connection with the Platforms and (ii) authorized by the Organization to access and use the Platforms;

e. provide the information required during registration; and

f. have received from the Organization or Provider initial credentials for registration of their Account.

User warrants that all information provided in the registration process or otherwise is true and accurate. User shall keep such information up to date at any time.

3.2. User Credentials. If Provider issues user credentials on a named user basis, such user credentials shall be used exclusively by the individual authorized users for which they have been issued, on behalf and for the benefit of User. If user credentials are issued to User without specifying the individual users, such user credentials may be used by any authorized user, strictly on behalf and for the benefit of User.

3.3. Confidentiality. User shall be fully responsible for the confidentiality of any user credentials issued by Provider and immediately inform Provider of any loss or unauthorized disclosure of such user credentials, which shall then be deactivated and replaced by Provider. Provider may charge an appropriate fee for the replacement of any user credentials. User shall further immediately notify Provider if any named user for whom Provider has issued user credentials quits User's organization.

3.4. List. User shall maintain an up-to-date list of its authorized users, which shall promptly be made available to Provider upon request.

4. Maintenance, Availability and Other Services

4.1. Availability of Licensed Products. Provider shall use reasonable endeavours to maintain the availability of the Licensed Products, but does not guarantee their full availability.

4.2. Maintenance Services. As part of the provision of the Services, Provider shall continuously seek to identify and attempt to resolve problems which may negatively affect their proper functioning and availability (the Maintenance Services). Such Maintenance Services comprise repairs (rectification of faults and errors to restore functionality) and servicing (maintenance to maintain functionality).

Although Provider will continuously improve the Licensed Products, User is not entitled to claim under the Maintenance Services any further development, adaptation or improvement of the Licensed Products, as well as additional services (which may, as the case may be, be provided under Section 7.3). Provider welcomes feedback and undertakes to take into consideration the evolution requests formulated by User, but does not commit on the realization of these requests.

4.3. Maintenance Windows. Maintenance Services are deployed regularly during which the Licensed Products may be fully or partly unavailable. Provider shall inform User reasonably in advance if Maintenance Services have to be performed outside of such timeframe and/or for a duration leading to foreseeable full or partial unavailability of the Licensed Products during more than one (1) hour.

4.4. Additional Services. Provider may agree to provide technical support for the Licensed Products (Support Services). The Support Services in relation to the content generated by the Users are provided by the Editors on the Platforms. Provider may also agree to provide additional Services for the Licensed Products (such as customization, development and/or consulting services), subject to the Parties entering into an ad hoc agreement (which shall, unless specified otherwise, be governed by these GTC) pertaining to such Services and payment by User of the applicable fees.

4.5. Diligence. Provider shall provide the Services to the best of its ability using all reasonable skill and care in accordance with standard professional practice. Provider shall be bound by an obligation of means (and not to deliver a specific result).

5. User's Obligations

5.1. Payment of Fees. End Users and Organizations shall pay the Fees as indicated in the subscription price list, accessible at https://www.certify.community/pricing/ (the Fees), in accordance with the Financial Terms set forth in Section 8.

5.2. Proper Use. Users shall at all times comply with all laws and regulations applicable to the use of the Services, as well as the conditions and limitation of any license or other right granted, as set out in the Agreement or as otherwise specified in writing by Provider. In particular, Users shall not, without the prior consent of Provider, and either during or after the Term: (i) use the Services for any illegal purposes (ii) use the Services on behalf or for the benefit of any third-parties; (iii) attempt to copy, modify, create derivative works from, republish, transmit, distribute or otherwise make available or disclose to any third party all or any portion of the Services, the Content, the Platforms or of their infrastructure; (iv) make any alteration to the Services, or insert any malicious software into the Platforms or their infrastructure; (v) access the Platforms code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platforms or their infrastructure; and (vi) access or use any part of the Services for the purpose of building a competitive product or service or copying their features or user interface.

5.3. Terms of Use and Privacy Notice. Access to, and use of, the Platforms require the prior acceptance of the Platforms privacy notice, in the form available from time to time on the Platforms (User Documentation). User shall comply with the User Documentation. User shall further comply with any additional guidelines which may be issued by Provider in relation to the use of the Services from time to time.

5.4. Verifications. The Licensed Products may contain tools allowing Provider to verify User's compliance with these GTC and Provider shall have the right to temporarily or permanently suspend the access to the Services and Platforms and/or deactivate any user credentials issued for the use thereof in case of non compliance with these GTC.

5.5. User Default. In case of default by User to comply with its obligations set forth in these GTC, Provider shall be excused from the performance of its obligations under the Agreement and assume no liability in relation therewith (without prejudice to Provider's other rights under this Agreement).

6. User Materials

6.1. User Materials. User may provide documents, information and other data through the use of the Platforms (User Materials).

6.2. Ownership. Subject only to Section 9.2, as between the Parties, User Materials is and shall remain the sole and exclusive property of User and nothing herein shall be construed or interpreted as a transfer of ownership in any User Materials to Provider.

6.3. Use of User Materials. User grants to Provider a non-exclusive worldwide, royalty-free, irrevocable, license to use its User Materials for the purpose of providing the Services or improving Provider's technology, including a license to collect, process, store, use, generate, anonymize, modify, create derivate work of, publicly perform, display, translate, sublicense and transfer the User Materials to third parties, as well as to train algorithms using User Materials.

6.4. Warranty. User warrants that (i) it has valid grounds and, if required, it has obtained all authorizations and consents for the processing of any User Materials within the frame of these GTC and (ii) User Materials do not infringe on any law or regulation, these GTC, or any third party rights. Provider may remove any User Materials which it considers infringes this warranty.

7. Provider's Intellectual Property

7.1. In General. As between Provider and User, Provider shall be and remain the sole owner of all rights, title and interest, registered or not, arising under any national or international legislation, in copyright, databases, trademark, domain names, designs and patents of invention, know-how, confidentiality and/or business secrets, and all other intellectual property or similar proprietary rights of whatever nature (Intellectual Property Rights) in and to the Platforms, any Development, the Content, and other Services provided in connection therewith, except only for User Materials. Nothing in these GTC shall operate any assignment or transfer of any Intellectual Property Rights to User.

7.2. Notice of Infringement. Should User become aware of any infringement or imminent risk of any infringement of any Intellectual Property Rights pertaining to the Services, User shall immediately inform Provider and provide all useful information on such infringement or risk of infringement. Provider shall have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. User shall, at its own costs, provide Provider with all reasonable assistance required by Provider to protect its Intellectual Property Rights, in accordance with its instructions.

7.3. Intellectual Property Rights Infringement. In the event that Provider is enjoined from providing the Services due to any third-party Intellectual Property Rights claims and such injunction is not dissolved within thirty (30) days, or in the event that User is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any third-party Intellectual Property Rights due to the use of the Services as permitted hereunder, then Provider shall, at its expense: (a) obtain for User the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such Intellectual Property Rights and are free to be used by User; or, (c) in the event that Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Provider may terminate the Agreement, with immediate effect, as its sole and exclusive remedy.

7.4. Relief. User expressly acknowledges that any infringement of Provider's Intellectual Property Rights will cause irreparable harm to Provider, for which monetary damages alone would be inadequate, and that Provider may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.

8. Financial Terms

8.1. Payment. In accordance with the subscription price list, accessible at https://www.certify.community/pricing/, subscription fees shall be due and payable in advance, on a monthly basis (except as otherwise specified), and non-refundable in case of termination.

8.2. Taxes. Fees and rates are exclusive of all taxes (in particular, VAT) if and as applicable.

8.3. Disbursement. Payment shall be made by credit card or wire transfer to Provider's bank account. In case of payment by credit card, the purchaser authorize the card issuer to pay all such amounts and authorizes Provider (or its billing agent) to charge the credit card account until the Agreement is terminated as set forth herein. The purchaser must provide current, complete and accurate billing and credit card information. In certain instances, the bank or the issue of the credit card may charge a foreign transaction fee or related charges, which the purchaser shall be responsible to pay.

8.4. Suspension of Services. The continued use of the Services by the purchaser is subject to the timely payment of all the Fees. Provider may temporarily stop providing the Services or suspend any right to access or use any Platforms and/or any purchaser credentials issued to is, if applicable, if the purchaser is in default for payment of any Fees due.

8.5. Changes. Provider may modify the pricing of its Services at any time and in its sole discretion, provided that if the change concerns the purchaser's current subscription plan, Provider will notify the purchaser in advance and the increase in Fees shall only become effective upon the forthcoming term of the subscription plan.

9. Data Protection

9.1. Privacy notice. Provider has issued a privacy notice, accessible at https://www.certify.community/privacy/ (Privacy Notice), which describes how personal data is collected through the Platforms and for what purposes. That privacy notice, as amended from time to time, forms an integral part of these GTC.

9.2. In General. If the provision of the Services implies the processing by Provider of (i) any personal data forwarded by User (User Personal Data), in particular as part of User Materials, or (ii) personal data relating to Usage Data (Usage Personal Data), Provider and User shall fully comply with their respective obligations under applicable data protection laws and regulations.

9.3. Roles of the Parties. In such cases, Provider shall process User Personal Data (i) as data processor, exclusively for the purpose agreed in these GTC and only to the extent necessary to fulfil the obligations hereunder, in accordance with User's instructions, which shall act as data controller; and (ii) for Provider's legitimate business operations incident to provision of the Services. Provider shall process Usage Personal Data as sole data controller thereof.

9.4. Provider's Obligations. Provider undertakes to comply with Swiss data protection legislation and with the obligations set out in Art. 28(3) of the European General Data Protection Regulation (GDPR) is applicable.

9.5. User's Obligations. User shall ensure, with respect to any User Personal Data processed by Provider within the frame of the Services, if any, that such User Personal Data has been collected and transferred to Provider in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, User shall:

a. have, and maintain at all times, valid grounds for the processing of such personal data, including obtaining valid consent from the data subjects for the processing of their personal data, if such consent is required under the applicable data protection legislation; and

b. provide adequate information to data subjects about the collection and processing of their personal data.

9.6. Responsibility. User shall bear sole responsibility for the processing of User Personal Data, if any, within the frame of the Services. User acknowledges and accepts that Provider shall deem any processing of any User Personal Data within the frame of the Services, as permitted under the Agreement, as well as any instructions by User with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.

9.7. Transfer. By accepting these GTC, User expressly acknowledges and agrees that User Personal Data or Usage Personal Data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in User's jurisdiction.

9.8. Compliance Actions. Provider may forward to User any request, investigation or other action by any supervisory authority and/or any third-parties (including data subjects), directed at Provider with respect to the processing of any User Personal Data, and User shall be responsible for addressing them in accordance with the law. If Provider is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations, and/or to provide assistance to User, User shall fully indemnify Provider for its effort and costs, including reasonable attorney's fees, incurred in such context. Requests, investigations, or actions relating to Usage Personal Data shall be addressed by Provider only.

9.9. Ad hoc DPA. The Parties may agree in a separate agreement or contract or any other document to specific provisions regarding the processing of User Personal Data as part of the Services, in which event such provisions shall have precedence over and supersede this Section 9.

10. Advertising and Publicity

Provider may refer to User as a contributor for the Services and User grants to Provider a limited license to use its name, logos and trademarks for the sole purpose of referring to it within the frame of its marketing activities.

11. Limited Warranty

11.1. The Services (including for the avoidance of doubt any Development, the Platforms and the Content) are provided AS IS and AS AVAILABLE. To the maximum extent permitted by applicable law, Provider disclaims all warranties with respect to the Services, whether express, implied or statutory, including any warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement of third-party rights. In particular, Provider does neither represent nor warrant that the Services shall meet User's requirements, that the operation of the Services will be uninterrupted or error-free, that any errors will be corrected, that it will ensure continued compatibility of the Services with any third-party products, even if they were compatible at any given moment, that the Services will always be available and remain available unchanged or that certain subscription models available at any given moment will remain available for renewal at the end of the applicable subscription period.

12. Limited Liability

12.1. In General. Provider's liability under the Agreement, whether in contract, tort or any other theory of liability, is excluded to the maximum extent permitted under applicable law. In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, Provider disclaims any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether Provider has been advised of the risk thereof, related to the interruption of business, loss of use, of actual or anticipated profit, of revenue, of anticipated savings, of opportunity, of goodwill, of reputation, loss of, damage to or corruption of data, or any other indirect, special, incidental, exemplary, or consequential damages or losses of any kind, regardless of the form of action, whether in contract, tort, strict liability or otherwise.

12.2. Use of Internet. The use of the Internet involves risks, in particular that the data transmitted may be intercepted, altered or deleted. By using the Platforms, User accepts these risks. Provider declines all responsibility in this respect.

12.3. Use of the Services. The use of the Services is entirely at User's own risk, and Provider expressly disclaims any liability regarding User's use thereof and/or any decisions taken by User based on the insights gained from its use of the Services.

12.4. Limited Amount. In no event, Provider's total liability during any period of twelve (12) months shall not exceed the amount of CHF 100.

12.5. Auxiliaries. The exclusions and limitations under this Section 12.5 extends to Provider's directors, officers, employees, agents, representatives and auxiliaries.

13. Indemnification

13.1. Indemnification. User shall defend, hold harmless from, and indemnify Provider, its directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney's fees, resulting from (i) User's use of the Services other than as permitted under these GTC and strictly in accordance with any documentation provided for the Services; or (ii) Provider's use of any User Materials as permitted hereunder.

13.2. Indemnification Procedures. In case of any claims or proceedings made against Provider, its directors, officers, employees or auxiliaries in relation to User's use of the Services or Provider's use of User Materials, Provider shall (i) inform User without undue delay; and (ii) allow User to assist Provider in the defence and settlement of such claims or proceedings with a counsel of its choosing and at its own expense, if and as permitted under applicable procedural rules.

14. Term and Termination

14.1. Entry into Force. The Agreement shall enter into force upon any of the following events, whichever occurs first: User's subscription for the use of the Platforms, first use of the Services, or as soon as these terms and conditions are made available on by Provider on its Services.

14.2. Cancelation. Each Party may terminate the Agreement at any time, with or without cause, via the dedicated tool on the Platforms, in which case the Agreement will terminate immediately.

14.3. Effects of Termination. Upon termination of the Agreement, and in addition to the consequences described elsewhere in the GTC:

a. Provider shall stop providing and User shall stop using the Services; and

b. all rights to use and access granted to User hereunder (inter alia under Section 5.1) shall cease. All access to the Platforms and credentials shall be deactivated and suppressed.

All terms which are expressed or intended to survive, and any provisions of the Agreement necessary for its interpretation or enforcement will continue to apply regardless of the reason for termination or expiry of the Agreement.

15. Miscellaneous

15.1. Independent Contractors. The Parties acknowledge and agree that they shall be considered as independent contractors with no authority to contract for the other or in any way to bind or to commit the other or in a way to bind or to commit the other to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of the other. Under no circumstances shall either Party, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of the other. Neither Party shall pay any contributions to social security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, or provide any other contributions or benefits which might be expected in an employer-employee relationship.

15.2. Subcontractors. Provider may use subcontractors for the provision of the Services. Provider's use of subcontractors shall not relieve Provider of any of its duties or obligations hereunder, which shall be imposed on subcontractors.

15.3. Force Majeure. Neither Party shall be liable for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control, such as natural catastrophes, war, strikes, blackouts, Internet failure, virus outbreaks, or similar events. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section, and inform the other Party of its plans to resume performance.

15.4. Amendment. Provider reserves the right to amend these GTC, or to implement changes to the pricing of the Services. In the event of material changes to these GTC, Provider will notify User, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by User after reasonable notice will be considered acceptance of any new terms.

15.5. Entire Agreement. The Agreement constitutes, together with the User Documentation, the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between them, as to the subject matter hereof.

15.6. Hierarchy. In the event of a conflict or contradiction between the provisions of the GTC and those of any other contractual documents (such as the Subscription Plan), the GTC shall take precedence, subject to express and specific deviations, deletions or additions contained in such other document, citing the section(s) of these GTC it shall amend .

15.7. Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the Parties hereby agree to replace such provision with a valid and fully enforceable provision reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement shall remain valid and enforceable to the fullest extent possible.

15.8. No Waiver. The failure of either Party at any time to require performance by the other Party of its obligations hereunder shall in no way affect that Party's right to fully enforce the other Party's obligations thereafter.

15.9. Assignment. Neither Party shall assign and transfer any or all of its rights and obligations hereunder, in whole or in part, to any third party without the other Party's prior written consent; provided however, that Provider may assign and transfer all or part of its rights and obligations hereunder to any third party acquiring all or substantially all of its business related to the Services and/or the Platforms, without User's consent.

15.10. No Third Party Beneficiaries. This Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of these GTC or the Subscription Plan .

16. Governing Law and Jurisdiction

16.1. Governing Law. The Agreement and/or any use of the Services shall be governed by Swiss substantive law, to the exclusion of its conflict of laws provisions.

16.2. Jurisdiction. Any dispute or controversy arising out of or in relation to the Agreement and/or User's use of the Services shall be subject to the exclusive jurisdiction of the competent ordinary courts at the place of the registered office of Provider. Notwithstanding the preceding, nothing in these GTC shall prevent Provider from seeking injunctive relief or any other remedy available at law in any jurisdiction in case of any infringement of its Intellectual Property Rights.

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