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 Analysis application – hello.vima (“the Application”), whether an individual (Customer, You or Your; and together with Vima, the Parties).
These GTC specify which services We provide through the Application (the Services) and Our obligations in this respect. For clarity, if a service or software is not referred to in these GTC, We will not provide it. These GTC also specify what You must – and must not – do in relation to Your use of the Application or the Services.
By setting up a User Account, using or subscribing for the use of the Application, You expressly agree to be bound by an agreement with Us governed by these GTC (the Agreement). If You are setting up a User Account, subscribing for the use of the application or using any Service on behalf of a legal entity, You represent and warrant that You are duly authorised to do so.
In General. Subject to Your compliance with all terms and conditions of these GTC, in particular, subject to Your payment of the applicable Fees (if any) in accordance with Section 9, We grant You, 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 You only. Except as expressly specified in these GTC, You are not authorised 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. You may, however, use the Application (without having first to obtain Our written consent) to perform Your contractual duties as an employee towards your employer (provided the Application are only used for the business needs of Your employer).
No Delivery. The Application is provided as a SaaS offering (Software as a Service). Therefore, You are only granted a right to access and use the Application online as web-application. We will not deliver to You any copy of the Application.
Modifications. You acknowledge and accept 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, but it may result in the suppression of functionalities or Content that you use.
Account. Access and use of the Application require the setting up of an account (the User Account). To create an Account, You must duly provide the information required during registration.
Confidentiality. Your are fully responsible for the confidentiality of Your user credentials and for the use that is made of the Account, including any third party’s use. You must immediately inform Us of any loss or unauthorised disclosure of such user credentials, which will then be deactivated and replaced by Us.
Availability of Application. We use reasonable endeavours to maintain the availability of the Application, but do not guarantee their full availability.
Maintenance Services. As part of the providing the right to use the Application, 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 development, adaptation or improvement of the Application (evolutive maintenance), support services as well as additional Services (except for Support Services as described in Section 4 below), do not form part of the Maintenance Services.
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 You 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 Services during more than 1 hour.
Support. Provided You subscribed for those services via the Application, We will provide technical support services for the Application via email (firstname.lastname@example.org) (the Support Services). We also provide information on the Application which may answer the questions You 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.
Customer Materials. When you use our Service on the Application, you will need to upload a self-presentation Video from you (the Video). In addition, other information, for example, job positing, work experience, spoken languages, etc. may be, optionally, asked from you (the Customer Material).
By uploading the Customer Material, you transfer all rights and titles to this Customer Material to Us. The uploaded Videos will be stored in a videos database. The videos 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.
We are allowed to use the Customer Materials, and to train our algorithms (machine learning model training) using Customer Materials, for the sole and exclusive purpose of providing and further developing the Application and/or the Services. This right extends to Our subcontractors, to the extent required for them to provide their services to Us (for instance to host Your Customer Materials). Except for Our subcontractors, We will not share Customer Materials with third parties
Warranty. You warrant that (i) You have valid grounds and, if required, You have obtained all authorisations and consents for the providing of any Customer Materials within the frame of these GTC and (ii) Customer Materials do not infringe on any law or regulation, these GTC, or any third party rights.
Deletion of Customer Materials. Upon termination of the Agreement or deletion of Your User Account(s) on your request, We will permanently delete any Customer Materials under Our control at the latest 60 days after the relevant event.
Based on the Customer Material we will provide our Service to you and generate a report containing the result of our analysis (the Report). We will remain the owner of the IP of the Report. The Report will be made accessible to you on your User Account and we will not share the Report to any other third party without your explicit instruction in writing. You may export the Report without additional fee and You have an unlimited and unrestricted right to use the Report.
Payment of Fees. You must pay the Fees incurred through Your use of the Services or binding contract ), as indicated in the Application (the Fees) respectively in accordance with the payment terms set forth in Section 11.
Proper Use. You must – and must cause any person under Your supervision to – at all times 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, You 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)
Verifications. The Application may contain tools allowing Us to verify Your compliance with these GTC. We reserve the right to temporarily or permanently suspend Your access to the Application and/or the Services and/or deactivate any User Account in case of none compliance with these GTC.
Customer Default. In case of default to comply with Your 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 You 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 You.
Notice of Infringement. Should You become aware of any infringement or imminent risk of any infringement of any Intellectual Property Rights pertaining to the Application or Services, You 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. You must, at Your 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 You are 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, Report or Services as permitted hereunder, then We will, at Our expense: (a) obtain for You the right to continue using such Application, Report or Services; (b) replace or modify such Application, Report or Services so that they do not infringe upon or misappropriate such Intellectual Property Rights and are free to be used by You; 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 You any prepaid and not used amount, as Our sole and exclusive remedy.
Relief. You 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.
In General. The Application, Report and Services may contain content and/or software components incorporated into or provided therewith, developed, distributed and/or licensed by third parties (Third-Party Content). Such Third-Party Content will be licensed, and You must use such Third-Party Content under, and strictly in accordance with, the applicable terms and conditions by the respective third-party. We will use Our best efforts to identify any Third-Party Content in the documentation of the Application.
FOSS. Nothing in these GTC restricts, limits or otherwise affects any rights or obligations that You may have, or conditions to which You may be subject, under any applicable open source licences (meaning any software licences approved as open source licences by the Open Source Initiative or any substantially similar licences) to any open source software which may be incorporated in and/or provided together with the Application and/or Services.
Pay-per-use. You shall pay the Fees incurred through Your use of the Services as indicated in the Application.
Currency and Taxes. Fees and rates including in the binding contract 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 You, if applicable, if You are in default for payment of any Fees due.
Changes. (the Change Notice Term). Within this period you have the possibility to terminate the respective subscription model in writing with effect to end of the Change Notice Term. If Your subscription model is no longer available, the subscription will automatically be transformed into a subscription under the next closest subscription model existing as of the end of the Change Notice Term.
Customer Personal Data. When providing our Services and when you are using our Application we are processing personal data provided from you, in particular Customer Materials (the Customer Personal Data).
Roles of the Parties. If we process Customer Personal Data, 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 do that in the role as a Controller. Our data protection coordinator can be contacted at:
Tel. : +41 27 720 55 20
Explicit Consent to Profiling. The Application is designed to analyze your Video and Customer Personal Data. The profiling is based on an automated behavioral analysis based on . The result of this profiling analysis will be provided to you – and to you only – in the form of a Report (see section 7). We will transmit the Report to Third Parties only upon your explicit instruction in writing. You are free to use the Report or not or to express your point of view and to contest the Report as addition to the Report.
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 personal data collected in order to guarantee the performance of our Services or for the purpose of concluding the contract, as well as for contract processing, invoicing and communication purposes. The processing of personal data is also necessary for the fulfilment of legal obligations. Besides performance of the Agreement, Customer Material will also be used to train algorithms. For such usage we have collected your explicit consent.
If you have given your consent to the processing of your personal data for certain purposes, we will process your personal data 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 Customer Personal Data 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 and where appropriate.
If we transfer data 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 you would like a copy of our data transfer agreements.
Compliance Actions. Unless expressly prohibited in writing or pursuant to applicable law, We may forward to You any request, investigation or other action by any supervisory authority and/or any third-parties (including data subjects), directed at Us with respect to the processing of any Customer Personal Data. If You require Our assistance or if We have to undertake any compliance action Ourselves (e.g. responding to a request by any supervisory authority or third-party and/or cooperating in investigations) You agree to compensate Us for Our activities, based on Our regular rates, and to reimburse Our expenses incurred in this context.
Duration of storage. We will store Customer Personal Data as long as it is necessary to fulfil the purposes of Data Processing as mentioned above. Upon termination of the Agreement or deletion of Your Account on your request, We will permanently delete any Customer 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 Customer Personal Data on your behalf, we will conclude a data processing agreement with such third party.
Your rights. You have 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 you and to the extent provided for therein (such as in the case of the GDPR). You may in particular request the deletion of your Video(s) and the Report. If you do so, we will remove your Video(s) from the videos database and delete the Report. 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, you have the right to assert your 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 You 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 Customer Materials Yours. 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 authorised to (and must cause its employees, agents, subcontractors or representatives not to): (a) disclose, sell, licence, 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 unauthorised 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 You 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. You acknowledge that breach of Your 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 Report 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 Report 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, Report or Services will meet Your requirements, that the operation of the Application, Report and Services will be uninterrupted or error-free, that the Content will be error-free, that any errors in the Application, Report or Services will be corrected, that We will ensure continued compatibility of the Application, Report or Services with any third-party products, even if they were compatible at any given moment, that Application, Report 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, Report or Services is entirely at Your own risk, and We expressly disclaim any warranties regarding Your use thereof and/or any decisions taken by You based on the insights gained from its use of the Application, Report 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. You 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) Your use of the Application, Report or our Services other than as permitted under these GTC and strictly in accordance with any documentation provided for the Application, Report or our Services; or (ii) third-partly claims pertaining to Our use of Your Customer Materials 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 Your use of the Application, Report or our Services or Our use of Customer Material, We will (i) inform You without undue delay; and (ii) allow You to assist Us in the defence and settlement of such claims or proceedings with a counsel of Your choosing and at Your own expense, if and as permitted under applicable procedural rules.
Entry into Force. The Agreement enters into force upon You use the Application and continues for an unlimited period of time unless terminated in accordance with this Section 17.
Termination by Customer. You may at any time delete Your User Account through a request place by email@example.com, in which case the Agreement will automatically terminate.
Termination by VIMA. We may terminate the Agreement: (i) with immediate effect, in case You materially breach the Agreement, provided that, if Your breach may be cured, at Our sole judgement, We will first give You 20 calendar days’ prior written notice to cure such breach at Our entire satisfaction; (ii) with immediate effects in case of any infringement of third party rights or risk of infringement of such rights, through Your use of the Application, Report 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:
all amounts already paid by You but not used will remain acquired to Us and are not reimbursable to You, except if You terminate the Agreement due to a material breach of these GTC by Us. You must immediately pay any outstanding amounts due to Us.
Independent Contractors. The Parties acknowledge and agree that they must 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 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 You at least 90 days in advance by any useful means (including email, or notification on the Application), which will then become effective unless You terminate the Agreement in accordance with Section 17.
Entire Agreement. The Agreement constitutes the entire agreement between You and Us and supersedes any and all previous representations, understandings, or agreements between You 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 reflecting the original intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement will remain valid and enforceable to the fullest extent 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 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 We may assign and transfer all of Our rights and obligations hereunder to any third party acquiring all or substantially all of its business related to the Application or Services, without Your consent.
No Third Party Beneficiaries. Except pursuant to Section 17 GTC, this Agreement is binding and inure solely to the benefit of You and Us (and each respective lawful successors and assigns). 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, Report or our Service is governed by and construed in accordance with Swiss substantive law, at the exclusion of its conflict of laws provisions.
Jurisdiction. Any dispute or controversy arising out of or in relation to the Agreement and/or Your use of the Application, Report 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: 07.12.2020