SaaS Agreement | General Terms and Conditions
v.3 2021
The present terms and conditions (“T&Cs“) form an integral part of the SaaS agreement concluded between Certifaction AG, Limmatquai 120, 8001 Zurich, Switzerland, CHE-343.475.910 as “Provider” of a software solution based on proprietary technology developed by Provider allowing signing, certifying, verifying, and more of PDF documents (the “Certifaction® Solution“) and its customers based on which SaaS agreement the customers are entitled to resell and/or, as the case may be, use on their own the Certifaction® Solution (a customer whether reseller or not hereinafter “Customer“). The term “User” means in these T&Cs a person who has access to use the Certifaction® Solution, which may be a Customer, a Customer’s employees, or a customer (or its employees) of a reselling Customer. These T&Cs shall apply exclusively unless they are modified by an express agreement between Provider and Customer in writing or by electronic means.
1. License
1.1. Provider grants to Customer the non-exclusive and non-transferable right to use the Certifaction® Solution as described in the main part of the SaaS agreement and in these T&Cs.
1.2. For the avoidance of doubt, this Provider is and remains the exclusive owner of all rights, title, and interest worldwide to all patents, inventions, copyrights, trademarks, designs, trade names, domain names, databases, technical processes, trade secrets, know-how, confidential information, customer lists, technical information, data, process technology, plans, logos, images, drawings, blueprints, software or other intellectual property, all whether or not filed, perfected, registerable, registered or recorded and whether currently existing, pending, planned, issued or acquired including all renewals in or associated with the Certifaction® Solution. Likewise, any and all such intellectual property rights in modifications and customizations of the Certifaction® Solution for reselling purposes vest in the sole property of Provider, unless expressly agreed differently in writing between Provider and Customer.
1.3. Provider shall be free to determine how and if the Certifaction® Solution shall be further developed and updated. In particular, Provider shall have the right – upon its sole discretion – to modify, extend, reduce or even discontinue features and/or functions of the Certifaction® Solution. Modifications, extensions, reductions or discontinuation of features or functions of the Certifaction® Solution shall, however, not jeopardize the basic functionality of the Certifaction® Solution.
2. Operation
2.1. The Certifaction® Solution is scheduled to be available for access 24 hours a day 7 days a week. The exception to this shall be any restricted or infeasible access due to non-functioning software or hardware or during scheduled maintenance windows or due to events beyond Provider’s control. These events may lead to short-term failures of the Certifaction® Solution. In such an exceptional situation, Provider will endeavour to restore the functionality of the Certifaction® Solution within the shortest possible time. For avoidance of doubt, any failure due to the hosting environment as well as any downtime of third-party services shall not be deemed as unscheduled downtime but as an event beyond Provider’s control. Provider is not responsible for the availability of a functional system or internet connection of Customer and/or User. Neither is Provider responsible for the secure handling of information by Customer and/or User and/or their data recipients. Moreover, if Customer contracts for a service that obligates Provider to send information by email, Provider is not liable for the security and functionality of such email transfers. In case Customer uses a feature with a server-side API, it is Customer’s obligation to ensure that API is safe to use.
3. Data Protection
3.1. Processes of personal data by use of the Certifaction® Solution are described in Provider’s Data Privacy Policy which is available on https://website.staging.certifaction.io/privacy-policy-for-certifaction-services/
3.2. The Data Privacy Policy is an integral part of the SaaS agreement. The Provider may unilaterally alter the Data Privacy Policy like these T&Cs.
4. Maintenance
4.1. Provider will cure all errors, install updates, security patches or further developments of the Certifaction® Solution and restore operation in a reasonable period of time within the scope of this maintenance.
4.2. The term “error” means for the purpose of the SaaS agreement documented and reproducible malfunctions, which render the operation of the Certifaction® Solution impossible or only possible to a limited extent. The corruption or loss of any data processed or generated by the Certifaction® Solution is considered as an error.
4.3. Customer shall take all appropriate measures within the realms of that which is objectively possible and reasonable to allow and/or facilitate the determination of errors and the causes thereof. In this context, Customer shall provide Provider with the necessary disclosures and any requested information that could help in the remediation of errors and also be conducive to reducing or avoiding future errors. In any case, Customer shall not withhold consent to the interruptions caused by errors without important cause.
4.4. Provider has the right to schedule maintenance windows. Such scheduled maintenance windows need to be communicated to Customer at least 48 hours in advance. Downtime resulting from such maintenance windows are not considered downtime regarding the calculation of the availability of the Certifaction® Solution.
5. Support
5.1. To the extent Customer uses the Certifaction® Solution for its own, Customer is entitled to a first level support. If Customer is, however, reselling the Certifaction® Solution, then Customer is entitled to a second level support of Provider. “Second level support” means that only Customer can use the support services of Provider and not the customer User of the reselling Customer. Reselling Customers are responsible for support services to their customer Users. Provider will, however, assist Customer with requests from such customer Users within the scope of the second level support. For the avoidance of doubt, Provider does in no case grant direct support to Users.
5.2. Provider renders such support during Provider’s regular business hours/days, which are Monday to Friday, 9:00 to 12:00 and 13:00 to 17:00 CET, excluding public holidays in Zurich, Switzerland.
5.3. Such support services include:
i. support for errors or functions;
ii. support in the determination of errors;
iii. telephone support during the regular business hours/days (calls received out of the regular business hours/days will be forwarded to a mobile phone and best efforts will be made to answer / action the call; however, there will be a backup answer phone service); and
iv. email support: monitored during regular business hours/days; emails received outside of the regular business hours/days will be collected, however no action shall be guaranteed until the next working day).
5.4. Support requests have to be delivered to Provider either by phone or by email as indicated by Provider on its webpage or separately in writing or by email. Support requests have to include at least the following information:
i. relevant software used to access the Certifaction® Solution;
ii. time of first occurrence of the error;
iii. description of the error, including the error messages if any; and
iv. description of the effects of the disruption on the User.
5.5. The following error classification shall apply:
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Critical |
The error causes the Certifaction® Solution to be completely unusable and no known work-around is currently available. |
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High priority |
The error dramatically affects the use of the Certifaction® Solution (e.g. significant loss of functionality, or a major function is seriously degraded, incorrect or missing functionality) and no known work-around is currently available. |
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Medium priority |
The error dramatically affects the use of the Certifaction® Solution and a known work-around is currently available, or the Certifaction® Solution has a technical or functional problem, key functions are not interrupted and there is minimal impact to the end Users’ ability to use. However, the issue needs to be resolved as soon as practicably possible as the workaround/the problem has a major impact on the Certifaction® Solution and is only sustainable on the short term. |
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Low priority |
The Certifaction® Solution has a fault, but with limited impact on use, or there is an accepted workaround. |
5.6. Provider will respond to support requests submitted either by email or by phone within the target response times depending of the error classification as follows:
i. 4 hours (during business days) for errors classified as “critical”.
ii. 8 hours (during business days) for errors classified as “high priority”.
iii. 2 days (during business days) for errors classified as “medium priority”.
iv. 5 days (during business days) for errors classified as “low priority”.
v. 10 days (during business days) for a general service request.
5.7. Provider does not guarantee fix times or workaround times, since these depend on the result of the analysis once Provider started to work on the issue. However, if the issue is a critical or high priority error, Provider guarantees that it will continue to work and provide a workaround or permanent fix as soon as reasonably possible.
6. Limitation on Use
6.1. Customer shall not and, shall prevent that their Users do not, make any modifications to the Certifaction® Solution and/or use the intellectual property right pertaining to the Certifaction® Solution which might prejudice their distinctiveness or validity of the Certifaction® Solution.
6.2. Customer warrants that Customer and its Users, use and, in case of a reselling Customer, distribute, the Certifaction® Solution at all times in compliance with all applicable laws and the guidance of Provider. Customer shall be solely liable for the use of the Certifaction® Solution that is not in conformity with applicable laws or Providers’ guidelines.
7. Prices | Payment Terms | Payment Delay
7.1. The prices for the use of the Certifaction® Solution including the maintenance and support services provided by Provider to be paid by Customer are set forth in the main part of the SaaS agreement.
7.2. Unless expressly agreed differently in the main part of the SaaS agreement, payments shall be made to the account indicated by Provider generally on the invoice within 20 days from the invoice date without any deduction; the date of receipt of payment shall be decisive.
7.3. If a payment due by Customer does not occur on the due date, Customer shall be deemed in default without reminder and shall owe to Provider default interest of 5% plus damages (including all costs incurred by Provider in collecting any late payments such as attorneys’ fees and court costs). If Customer does not comply with Provider’s request to pay the overdue payment within 10 days, Provider may suspend the functions of the Certifaction® Solution and/or terminated the agreement with Customer. Any payments already made shall remain with Provider.
8. Representations | Warranties
8.1. Certifaction represents and warrants to Customer that the use of the Certifaction® Solution in accordance with the terms of the SaaS agreement including these T&Cs does not infringe any third party intellectual property rights.
8.2. Customer acknowledges and agrees that, except as expressly set forth in these T&Cs or in the main part of the SaaS agreement, Provider does not make any further or other representations or warranties than those explicitly made in the aforementioned section. In particular, Customer herewith acknowledges that the Certifaction® Solution is provided on an “AS IS” and “as available” basis, without representations and warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, non-infringement or fitness for a particular purpose.
9. Remedies for breach of representations and warranties
9.1. In the event of any breach or non-fulfilment of the representations and warranties of Provider, Provider shall have the right, within 30 days after receipt of a written notice, to put Customer in the same position in which it would have been if the representation or warranty had been complied with. If, and to the extent, such cure cannot be effected within such a time period, Provider shall be liable to Customer, subject to the exclusions and limitations set forth herein, for damage incurred or sustained by Customer due to the breach of the representation or warranty.
9.2. If Customer wishes to assert a claim under this SaaS agreement for a breach of Provider’s representations and warranties, Customer shall deliver a written notice to Provider within 5 days after having recognized the breach. The notice of breach shall contain a brief description of the circumstances of the relevant breach of warranty or misrepresentation, to the extent such information is available. Failure to give due and timely notice within the time period set forth above shall not exclude Provider’s liability related to such breach. However, Provider’s liability shall be reduced if and to the extent that damage has been caused or aggravated by virtue of Customer’s failure to give notice in accordance with the preceding paragraph.
10. Limitation of Provider’s liability
10.1. Provider’s liability hereunder is excluded or reduced, as the case may be, if and to the extent that:
i. Customer has failed to use its commercial reasonable best efforts to mitigate the damage in respect thereof;
ii. Customer has recovered or, by applying its commercially reasonable best efforts, could recover or could have reasonably recovered, as the case may be, from any third person, including but not limited to an insurer or reinsurer, any sum in respect of any matter to which a claim made related, after deduction of all duly documented costs and expenses incurred in making such recovery (including reasonable attorney’s fees);
iii. such liability is attributable to any act, omission, transaction or arrangement of Customer;
iv. loss of data;
v. the damage of a User not being directly a Customer;
vi. indirect, punitive or consequential damages (Mangelfolgeschaden), loss of profit, opportunities, goodwill, and reputation.
10.2. Although these T&Cs state service availability and scheduled maintenance downtimes of the Certifaction® Solution as well as response times for support requests, this T&Cs do not provide or grant in any way the right for reimbursements, compensation or indemnification for damages if such availabilities or response times should not be met.
10.3. Notwithstanding the foregoing, the liability of Provider hereunder – on any theory of liability, whether in contract, tort, unjust enrichment or otherwise – shall in the aggregate not exceed CHF 100,000.
11. Term | Termination
11.1. Unless expressly stated differently in the main part of the SaaS agreement, the SaaS agreement concluded and therewith the license is granted for an indefinite period of time.
11.2. Subject to any other provision in these T&Cs or in the main part of the SaaS, Provider and Customer may terminate the SaaS agreement with three (3) month prior notice effective as of December 31, after a full 12 months contract period. The termination notice has to be submitted in writing or by electronic means as indicated on Provider’s webpage.
11.3. Upon the effective date of the termination of the SaaS agreement, Customer shall not be entitled to use or resell the Certifaction® Solution anymore and, and shall discontinue the grant of access to the Certifaction® Solution to Users.
12. Miscellaneous
12.1. All notices and other communications between Customer and Provider shall be made in writing and sent by registered mail or electronic mail (e-mail) at the addresses communicated by one of them to the other or as stated on Provider’s webpage.
12.2. Customer is not entitled to assign the SaaS agreement or any rights or obligations thereunder (such as the License) without the prior written consent of Provider.
12.3. Customer is not entitled to set off any claims it may have against claims of Provider, or otherwise withhold the proper payment of, any amount payable by Customer to Provider under or pursuant to the SaaS agreement, regardless of whether such claim of Customer against Provider has arisen under, or in connection with, the SaaS agreement.
12.4. If any provision of the SaaS agreement including these T&Cs is or becomes illegal, invalid or unenforceable in any jurisdiction, such illegality, invalidity or unenforceability shall not affect (i) the legality, validity or enforceability in that jurisdiction of any other provision of the SaaS agreement including these T&Cs or (ii) the legality, validity or enforceability of that provision or of any other provision of the SaaS agreement including these T&Cs in any other jurisdiction. The illegal, invalid or unenforceable provision(s) shall be replaced by a legal, valid, and enforceable substitute provision the effect of which is as close as possible to the intended effect of the illegal, invalid, or unenforceable provision. The same shall apply in case of a gap.
12.5. The failure of Provider or Customer to enforce any of the provisions of the SaaS agreement including these T&Cs or any rights with respect thereto shall in no way be considered as a waiver of such provisions or rights or in any way affect the validity of the SaaS agreement including these T&Cs. The waiver of any breach by Provider or Customer shall not operate to be construed as a waiver of any other prior or subsequent breach.
12.6. Provider may unilaterally alter the present T&Cs by notifying Customer of such changes and granting Customer the opportunity to terminate this SaaS agreement before the entry into force of the so revised T&Cs.
13. Governing law and jurisdiction
13.1. The SaaS agreement including the present T&Cs shall be subject to and governed by Swiss law (excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980).
13.2. Any dispute, controversy or claim arising out of, or in relation to, the agreement between Provider and Customer, including the validity, invalidity, breach, or termination thereof, shall exclusively be brought before the ordinary courts at Provider’s registered domicile in the city of Zurich, Canton of Zurich, Switzerland.