These general terms and conditions (GTC) apply between Vima Link SA (CHE 150.285.064), Rue Marconi 19, 1920 Martigny, Switzerland (Vima, We, or Our) and any user of the Vima Behavioral & Emotional Analysis Application (“the Application”), independently whether the user is an entity (Business Customer), an individual person (Customer) or the Analyzed User (Business Customer, Customer and Analyzed User together User).
These GTC specify Users rights and obligations in connection with the use of the Application and/or the Support Services and Our rights and obligations in this respect. For clarity, if a service or software is not referred to in these GTC, We will not provide it.
When setting up a Business Account or a Customer Account, User expressly agree to be bound by these GTC (the Agreement) unless specified in a separate agreement between two parties. Analyzed Users are obliged to accept these GTC when uploading any Analyzed User Materials.
In General. Subject to Users compliance with all terms and conditions of these GTC subject to Users payment of the applicable Fees (if any) In accordance with Section 9, We grant the User, during the Term, a revocable, non-exclusive and non-transferable right to access and use the Application, strictly in accordance with these GTC. This right is granted to the User only. Except as expressly specified in these GTC, User is not authorized to use the Application on behalf or for the benefit of any third-parties, or to grant a right to use the Application to any third party, without Our express prior written consent, which could be part of the Agreement.
No Delivery. The Application is provided as a SaaS offering (Software as a Service) and TaaS (Technology as a Service). Therefore, User is only granted a right to access and use the Application as such. We will not deliver to User any copy of the Application.
Modifications. User acknowledges and accepts that We may decide to implement modifications to the Application, for instance to the layout or functionalities of the Application. We generally do so to improve the Application.
Availability of Application. We use reasonable endeavors to maintain the availability of the Application, but do not guarantee their full availability.
Maintenance Services. We continuously seek to identify and attempt to resolve problems which may negatively affect the proper functioning and availability of the Application (the Maintenance Services). Such Maintenance Services comprises repairs (rectification of faults and errors to restore functionality) and servicing (maintenance to maintain functionality). Further developments, adaptations or improvements of the Application (evolutive maintenance), support services as well as additional Services do not form part of the Maintenance Services.
Issues in the Application are categorized in 3 Groups:
Maintenance Windows. As a rule, Maintenance Services are deployed during the evening time (CET) on Wednesday and no longer than 2 hours during which the Application may be fully or partly unavailable. We will inform User reasonably in advance if Maintenance Services must be performed outside of such timeframe and/or for a duration leading to foreseeable full or partial unavailability of Services during more than 1 hour.
Support. We will provide functional (2nd level) and technical (3rd level) support services for the Application via email (email@example.com) (the Support Services). We also provide information on the Application which may answer the questions User have.
Obligation of means. By default, We are only bound by an obligation of means for the supply of Services. We will supply the Services, Maintenance Services and Support Services in accordance with standard professional practice, with the care and diligence required from a supplier of similar services.
Users are fully responsible for the confidentiality of their user credentials and for the use that is made of the account. User must immediately inform Us of any loss or unauthorized disclosure of such user credentials, which will then be deactivated and replaced by Us.
To create a Business Account on the Application, Business Customers must duly provide the information required during registration.
Business Customer may set-up individual sections for each Analyzed User (“Subaccounts”) within the Business Customer Account. Analyzed Users will receive an invitation to the Subaccount and may upload any Analyzed User Material on this Subaccount. Business Customer will have access to all documentation (uploaded Analyzed User Materials, Reports, etc.) on the Subaccount.
To create a Customer Account on the Application, Customers must duly provide the information required during registration. As the Customer and the Analyzed User are the same person in the B2C set-up, no Subaccounts are available in the Customer Account.
When the Analyzed User uploads Analyzed User Materials, the Analyzed User can choose whether he agrees to usage of the Analyzed User Materials for research purposes or not.
If the Analyzed User agrees on sharing the Analyzed User Materials for Research Purposes (data analysis, creation of new Machine Learning models, etc.), all rights and titles the Analyzed User Materials are transferred to VIMA. The Analyzed User Materials will be stored in a database. The database is used as basis for the annotations database, the audiovisual cues database and the AI models database; these databases are VIMA’s proprietary datasets. VIMA will use the data in the annotations database, the audiovisual cues database and the AI models database to train VIMAs algorithms (machine learning model training), for the sole and exclusive purpose of providing and further developing the Application. This right to use the data in the mentioned databases extends to Our subcontractors, to the extent required for them to provide their services to Us (for instance to host Analyzed User Materials the Analyzed User Materials). Except for Our subcontractors, We will not share the Analyzed User Materials with third parties.
If Analyzed User disagrees on sharing Analyzed User Materials for Research Purposes, when uploading the Analyzed User Material, it will solely be used by the Application and be stored by the Customer Application as stated in the Customer Agreement.
Warranty. Analyzed User warrants that (i) Analyzed User have valid grounds and, if required, Analyzed User have obtained all authorizations and consents for the providing of any Analyzed User Materials within the frame of these GTC and (ii) Analyzed User Materials do not infringe on any law or regulation, these GTC, or any third-party rights.
Deletion of Analyzed User Materials and User Data. Upon termination of the Agreement or deletion of Your User Data on your request, We will permanently delete any Analyzed User Materials under Our control at the latest 60 days after the relevant event.
Based on the Analyzed User Materials we will provide our Service to User and generate the Results. We will remain the owner of the IP of the Results.
For our Business Customers, the Results will be made accessible to the Business Customer on the Business Customer Account and to the Analyzed User on its Analyzed Users Subaccount.
For our Customers, the Results will be made accessible to the Customer on the Customer Account.
We will not share the Results to any other third party (other than the ones mentioned above) without Analyzed Users explicit instruction in writing.
Proper Use. User must – and must cause any person under Users supervision to – always comply with all laws and regulations applicable to the use of the Application, as well as the conditions and limitation of any license or other right granted, as set out in these GTC or as otherwise specified on the Application. In particular, User must not, without Our prior consent, and either during or after the Term: (i) use the Application for any illegal purposes (ii) republish or redistribute any Content or material from the Application; (iii) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application or of its infrastructure; (iv) make any alteration to the Application, or insert any malicious software into the Application or its infrastructure ; (v) access the Application’s code, attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application or its infrastructure (vi) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Application or any part of their infrastructure available to any third party.
Verifications. The Application may contain tools allowing Us to verify Users compliance with these GTC. We reserve the right to temporarily or permanently suspend Users access to the Application and/or deactivate any Customer User Account, Business Customer User Account or Analyzed Users Subaccount in case of no- compliance with these GTC.
Customer Default. In case of default to comply with Users obligations set forth in these GTC, We will be excused from the performance of Our obligations under the Agreement and assume no liability in relation therewith (without prejudice to Our other rights under the Agreement).
Application. As between User and Us, We are and remain the sole owner of all rights, title and interest, registered or not, whether arising from Swiss or any other national or international legislation, in copyright, data, 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 Application. Except for outputs pursuant to Section 9, nothing in these GTC operates any assignment or transfer of any Intellectual Property Rights to User.
Notice of Infringement. Should User become aware of any infringement or imminent risk of any infringement of any Intellectual Property Rights pertaining to the Application or Services, User must immediately inform Us and provide all useful information on such infringement or risk of infringement. We will have the exclusive power to decide on any action to be taken with respect to such infringement or risk of infringement. User must, at Users own costs, provide Us with all reasonable assistance required by Us to protect Our Intellectual Property Rights, in accordance with Our instructions.
Intellectual Property Rights Infringement. In the event that We are enjoined from providing the Application or Services due to any third-party Intellectual Property Rights claims and such injunction is not dissolved within thirty (30) calendar 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 Application, Results or Services as permitted hereunder, then We will, at Our expense: (a) obtain for User the right to continue using such Application, Results or Services; (b) replace or modify such Application, Results or 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 We are unable or determine, in Our reasonable judgement, that it is commercially unreasonable to do either of the aforementioned, We may terminate the Agreement, with immediate effect, reimbursing User any prepaid and not used amount, as Our sole and exclusive remedy.
Relief. User expressly acknowledge that any infringement of Our Intellectual Property Rights will cause irreparable harm to Us, for which monetary damages alone would be inadequate, and that We may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.
FOSS. Nothing in these GTC restricts, limits or otherwise affects any rights or obligations that User may have, or conditions to which User may be subject, under any applicable open-source licenses (meaning any software licenses approved as open-source licenses by the Open-Source Initiative or any substantially similar licenses) to any open-source software which may be incorporated in and/or provided together with the Application.
Fee. Business Customer or Customer shall pay the Fees as agreed with VIMA (depending on chosen payment model). Payment conditions are 30 days when invoice is received.
Currency and Taxes. Fees and rates including in the Agreement are indicated in Swiss Francs (CHF) and are exclusive of all taxes (in particular, VAT) if and as applicable.
Suspension of Services. For Services requiring recurring payments, We may temporarily stop providing the Services or suspend any right to access or use the Application and/or any user credentials issued to User, if applicable, if Business Customer or Customer is in default for payment of any Fees due.
Changes. Changes of the fees and/or the subscription models, if applicable, will become effective after a prior notice of 90days (the Change Notice Term).
Customer Personal Data. When providing our services and when User are using our Application, we are processing personal data provided from Analyzed User (Analyzed User Material).
Roles of the Parties. For the purpose agreed in these GTC and only to the extent necessary to fulfil the obligations hereunder, in accordance with Your instructions (You acting as data controller) we process Analyzed User Materials in the role as a Processor. Our data protection coordinator can be contacted at:
Explicit Consent to Profiling. The Application is designed to analyze the Analyzed User Material. The assessment is based on a partially automated behavioral and emotional AI prediction model based on scientific research as explained on www.vima-swiss.com. The Result of this profiling analysis will be provided to Analyzed User and in the B2B set-up also to the Business Customer – as the Results (see section 7). Analyzed User is free to use the Results or not or to express Analyzed Users point of view and to contest the Results as addition to the Results.
No Individual Decision Making. The Application does not make and take any decision. VIMA is not involved in the decision-making process of Third Parties (such as potential employers etc.).
Purposes of Data Processing and Legal Basis. We process the Analyzed User Materials collected in order to guarantee the performance of our services. The processing of Analyzed User Materials is also necessary for the fulfilment of legal obligations. Besides performance of the Agreement, Analyzed User Material will also be used to train algorithms. For such usage we have collected Analyzed Users explicit consent.
If Analyzed User has given his consent to the processing of Analyzed User Materials for certain purposes, we will process Analyzed User Materials within the scope of and based on this consent, insofar as we have no other legal basis and we require such a basis. A given consent can be revoked for the future at any time.
Transfer. As part of our Services, we may disclose Analyzed User Materials to third parties, auxiliaries and other business partners, to related parties, and other persons in Switzerland, the EU or other countries for the purposes set out above (train algorithms).
If we transfer Analyzed User Materials to a country without adequate legal data protection, we ensure an adequate level of protection by means of data transfer agreements (namely on the basis of the so-called standard contractual clauses of the European Commission) or rely on the statutory exceptions of consent, contract and mandate processing, the establishment, exercise or enforcement of legal claims, overriding public interests, published personal data or because it is necessary to protect the integrity of the data subjects. Please contact us if Analyzed User would like a copy of our data transfer agreements.
Duration of storage. We will store Analyzed User Materials if it is necessary to fulfil the purposes of Data Processing as mentioned above. Upon termination of the Agreement, We will permanently delete any Analyzed User Materials under Our control at the latest 60 days after the relevant event.
Ad hoc DPA. Whenever we involve third parties for data processing of Analyzed User Materials on Analyzed User behalf, we will conclude a data processing agreement with such third party.
Your rights. Analyzed User has the right to information, correction, limitation of data processing, deletion of personal data, objection, revocation of the declaration of consent under data protection law for the future and data transferability within the framework of the data protection law applicable to Analyzed User and to the extent provided for therein (such as in the case of the GDPR). Analyzed User may in particular request the deletion of his Analyzed User Materials and the Results. If Analyzed User do so, we will remove Analyzed User Material from the videos database and delete the Results. In the B2B set-up the Business Customer is responsible of the deletion of Analyzed User Materials. Please note that the annotations database, the audiovisual cues database and the AI models database do not contain personal data according to the definition in the GDPR.
In addition, Analyzed User has the right to assert its claims in court or to file a complaint with the responsible data protection authority. Switzerland’s competent data protection authority is the Federal Data Protection and Information Commissioner.
Definition. Confidential Information means any information disclosed by Business Customer, Customer, Analyzed User or US (as the context requires, the Disclosing Party) to the other (as the context requires, the Receiving Party), either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “confidential”, “proprietary”, or some similar designation or can reasonably be considered of confidential nature. Confidential Information includes the content of the Agreement, (but not the fact that the Parties are collaborating), all information about the Disclosing Party’s business and operations, and more generally all information relating to or owned or controlled by the Disclosing Party of which the Receiving Party acquire knowledge in the performance of their agreement. The Application and the Services, constitute Our Confidential Information and property, while the Analyzed User Materials is Analyzed Users. Confidential Information does not include any information which: (i) was made public without restriction prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known without restriction after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s records.
Obligation of Confidentiality. The Receiving Party is not authorized to (and must cause its employees, agents, subcontractors or representatives not to): (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party, except to its employees, agents, subcontractors or representatives having a legitimate need to know such Confidential Information for the performance of the Receiving Party’s obligations under the Agreement (and only to such extent), and/or (b) use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary to perform its obligations hereunder.
Ownership. Subject to any other provision in this Agreement, all Confidential Information remains the Disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the Disclosing Party will be permanently deleted upon the Disclosing Party’s written request or within 10 years period.
Cooperation and Assistance. Each Party must use its best efforts to assist the other Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each Party must advise the other Party immediately in the event either Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to breach confidentiality and each Party must cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
Compliance. Nothing contained in the Agreement prevents Us or User from complying with applicable laws. The Receiving Party may disclose Confidential Information of the Disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
Reliefs. User acknowledges that breach of its obligations of confidentiality may give rise to irreparable harm to Us, which might not be adequately compensated in the form of monetary damages. Accordingly, We may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, in contract or at law.
As IS/AS AVAILABLE. The Application, the Results and Services are provided AS IS and AS AVAILABLE. To the maximum extent permitted by applicable law. We disclaim all warranties with respect to the Application, the Results or 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.
Exclusions. In particular, We do neither represent nor warrant that the Application, Results or Services will meet Users requirements, that the operation of the Application, Results and Services will be uninterrupted or error-free, that the Content will be error-free, that any errors in the Application, Results or Services will be corrected, that We will ensure continued compatibility of the Application, Results or Services with any third-party products, even if they were compatible at any given moment, that Application, Results or Services will always be available and remain available unchanged or that certain subscription models for the Application or Services available at any given moment will remain available for renewal at the end of the applicable subscription period. The use of the Application, Results or Services is entirely at Users own risk, and We expressly disclaim any warranties regarding Users use thereof and/or any decisions taken by User based on the insights gained from its use of the Application, Results or Services.
Limited Liability. Our liability under the Agreement, whether in contract, tort or any other theory of liability, is excluded to the maximum extent permitted under applicable law.
Disclaimer. In particular, without prejudice to the generality of the foregoing, to the extent permitted under applicable law, We disclaim any liability for simple negligence as well as for any damages or losses, whether foreseen or foreseeable, or whether We have advised of the risk thereof, related to the loss of use, interruption of business, loss of actual or anticipated profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of goodwill, loss 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.
Auxiliaries. The exclusions and limitations under this Section 14 extend to Our directors, officers, employees, agents, representatives and auxiliaries.
Indemnification. User must defend, hold harmless from, and indemnify Us, Our directors, officers, employees and auxiliaries, from and against all liability, loss, cost, damage or expense, including reasonable attorney’s fees, resulting from (i) Users use of the Application, Results or our Services other than as permitted under these GTC and strictly in accordance with any documentation provided for the Application, Results or our Services; or (ii) third-partly claims pertaining to Our use of Analyzed Users Material in accordance with these GTC.
Indemnification Procedures. In case of any claims or proceedings made against Us, Our directors, officers, employees or auxiliaries in relation to Users use of the Application, Results or our Services or Our use of Analyzed Users Material, We will (i) inform User without undue delay; and (ii) allow User to assist Us in the defense and settlement of such claims or proceedings with a counsel of Users choosing and at Users own expense, if and as permitted under applicable procedural rules.
17. Term and Termination
Termination by Customer. Customer may at any time delete his Customer Account through a request place by firstname.lastname@example.org, in which case the Agreement will automatically terminate.
Termination by Business Customer. As a Business Customer, you can terminate the contract in a writing giving 90 days’ notice, unless otherwise agreed upon in the Agreement.
Termination by VIMA. We may terminate the Agreement: (i) with immediate effect, in case Business Customer or Customer materially breaches the Agreement or this GTC. If the breach can be cured, we may, at Our sole judgement, first give Customer or Business Customer 20 calendar days’ to cure such breach at Our entire satisfaction (such notices needs to be given in writing); (ii) with immediate effects in case of any infringement of third party rights or risk of infringement of such rights, through Users use of the Application, Results or our Services: or (iii) at any time for convenience with a 90 days prior notice.
Effects of Termination. Upon termination of the Agreement, and in addition to the consequences described elsewhere in the GTC:
Independent Contractors. The Parties acknowledge and agree that they must be considered as independent contractors with no authority to contract 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 will 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 must 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.
Subcontractors. We may use subcontractors for the provision of Application and Services. Our use of subcontractors will not relieve US of any of Our duties or obligations hereunder, which will be imposed on subcontractors.
Force Majeure. Neither Party will 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, black-outs, Internet failure, virus outbreaks, or similar events. Any such excuse for delay will last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party must 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.
Amendment. We reserve the right to amend these GTC at any time, provided We inform our Users at least 90 days in advance by any useful means (including email, or notification on the Application), which will then become effective unless Users terminates the Agreement in accordance with Section 17.
Entire Agreement. Unless a separate agreement is signed by both parties, The Agreement constitutes the entire agreement between User and Us and supersedes all previous representations, understandings, or agreements between User and Us, as to the subject matter hereof.
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 fully reflecting the original intent of the Parties possible. In any event, all other provisions of the Agreement will fully remain valid and enforceable possible.
Electronic Form. The term “in writing” includes communications by email, via the web, or other electronic forms, while terms relating to acceptance include acceptance via web forms or other digital means (for instance boxes to be ticked).
No Waiver. The failure of either Party at any time to require performance by the other Party of its obligations hereunder will in no way affect that Party’s right to fully enforce the other Party’s obligations thereafter.
Assignment. Except for transfers or assignments authorized pursuant to the terms of the GTC, neither Party has the right to assign or transfer any or all 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 We may assign and transfer all Our rights and obligations hereunder to any third party acquiring all or substantially all its business related to the Application or Services, without User’s consent.
No Third Party Beneficiaries. Except pursuant to Section 17 GTC, this Agreement is binding and inure solely to the benefit of User and Us (and each respective lawful successor and assign). Nothing in the Agreement is intended to or confers upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of these GTC.
Governing Law. The Agreement and/or any use of the Application, Results or our Service is governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of law provisions.
Jurisdiction. Any dispute or controversy arising out of or in relation to the Agreement and/or Users use of the Application, Results or our Service must be subject to the exclusive jurisdiction of the competent ordinary courts at Martigny, Canton of Wallis in Switzerland. Notwithstanding the preceding, nothing in these GTC prevents Us from seeking injunctive relief or any other remedy available at law in any jurisdiction in case of any infringement of Our Intellectual Property Rights.
Date last updated: 24th of March, 2021