Terms & Conditions

Effective Date: January, 2024

The website chili.ch (“the “Site”) is owned and operated by ChiliDigital AG (“chili.ch”, “we”, “us”, or “our”), and provides registered users (“Subscribers“) with access to integrations that connect to third-party services and databases and allow users to export data to other third-party services (“Integrations”) (collectively, the Site and the Integrations, the “Platform”). These terms and conditions (“Agreement“) apply to all Subscribers and visitors accessing and using the Platform (“User”, “you”, or “your”).

You may only purchase and access the Integrations if you have created an account with us (“User Account”) and agree to this Agreement. Our Integrations may be provided for free or for a fee on a recurring basis (“Subscription Services”).

Please read the terms of this Agreement carefully before accessing and using the Platform. This Agreement controls your legal relationship with us, and the rights you are granting to us when you access and use the Platform.

THIS AGREEMENT CONTAINS A MANDATORY AND BINDING INDIVIDUAL ARBITRATION CLAUSE, CLASS ACTION WAIVER, WAIVER OF RIGHT TO A JURY TRIAL, AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.

 

1. Acceptance of this Agreement

Your access to and use of the Platform is conditional on your acceptance of this Agreement. By accessing and using the Platform, you agree on your own behalf, and on behalf of any organization, entity, or other person on whose behalf you may act, to accept and abide by this Agreement for each and every use of the Platform. If you do not agree with all terms and conditions of this Agreement, please do not access or use the Platform.

This Agreement forms the core agreement between us and you, and incorporates the following documents:

Privacy Policy: This policy explains how we collect, use, and disclose personal information about you.

Data Processing Agreement: This explains how we process your data and your customers’ data, as well as how we may transfer your data from one geographic region to another.

Product Specific Terms: These are additional terms and conditions that are either specified at the time of purchase of our Integrations, such as on our Platform, or through separate documents describing the features or functions applicable to each of our Integrations (“Documentation”). All Documentation provided to you in relation to our Integrations is incorporated into and made part of the Product Specific Terms and this Agreement.

 

2. Modifications to this Agreement

We reserve the right to modify this Agreement and any Product Specific Terms at any time by posting an updated Agreement on the Site. We may also, at our sole discretion, provide Subscribers with an email notice of changes. You are responsible for regularly reviewing this Agreement and any Product Specific Terms and your continued use of the Integrations after the effective date of any change shall constitute your acceptance of the updated Agreement and/or Product Specific Terms. If any modification is unacceptable to you, you shall cease using the Platform. If you have any questions about this Agreement or any Product Specific Terms, you may contact us at support@chili.ch.

 

3. Eligibility to Use the Platform

3.1 Age of Majority. You may only access the Platform if you are in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. You must be 18 years old or older to access or use the Platform. Any access or use of the Platform by anyone under 18 is strictly prohibited and in violation of this Agreement.

3.2 Government Agencies. The Integrations are not designed or intended for use by government agencies. If you or the entity you represent is a government agency, then you shall not be permitted to use the Integrations unless expressly agreed by us in writing. Any use of the Integrations contrary to this provision shall be a breach of this Agreement and will result in cancellation of your Subscription Services and termination of your access to the Platform. We cannot and will not be liable for your noncompliance with the provisions of this Subsection.

 

4. Purchased Integrations

4.1 The Integrations in General. ChiliDigital AG provides Integrations to Third-Party Services (as defined herein) that allow Subscribers to access and export Customer Data (as defined herein) from Third-Party Service providers. Subscribers are provided access to the features and components of the Integrations that are accessible and provided via the Site. Integrations may be subject to additional Product Specific Terms applicable to the Integrations purchased and as specified at the time of purchasing such Integrations.

4.2 Subscription Services. Subscribers will receive access to the Integrations which they purchase and connect to through the Site. Access to the Integrations is conditioned upon Subscriber’s (i) payment of all applicable Subscription Fees (as defined herein) for the period of time specified on the Platform at the time of purchase (“Subscription Period”), and (ii) adherence to the terms and conditions contained in this Agreement or any applicable Product Specific Terms.

4.3 Free Services. Certain integrations may be provided by ChiliDigital AG at no charge (“Free Services”). You may access and use the Free Services available on the Site, subject to the terms of this Agreement and any applicable Product Specific Terms. Free Services are provided on an “as-is” and “as available” basis, without warranty of any kind. We have no obligation to provide support services for Free Services, and we may make any Free Services or features or components thereof unavailable at any time at its sole discretion.  

4.4 Free Trials. We may, at our sole discretion, offer Integrations at no cost for a limited period of time (“Free Trial”) when you purchase it on a subscription basis. If you cancel the Subscription Services during the Free Trial, all Customer Data input into the Subscription Services may be permanently deleted and we will not recover it. We reserve the right to, at any time without notice, modify the terms and conditions of the Free Trial offer, or cancel such Free Trial offer.

4.5 Changes. We reserve the right, without prior notice, to amend, modify, and stop providing the Integrations to you and users generally, or create usage limits for the Integrations, at any time in our sole discretion. All Integrations are provided “as is,” and you acknowledge and agree that you will not rely on any existing features of the Integrations being available in the future, nor any proposed updates or additional features becoming available.

 

5. Access to the Integrations

5.1 Grant of Access. We grant you a non-exclusive, non-transferable, non-assignable, and revocable right to access and use the Integrations you purchase through the Platform for your internal business purposes only and in accordance with the terms and conditions contained in this Agreement and any applicable Product Specific Terms. The rights granted herein are subject to the payment of all Subscription Fees specified on the Site, if applicable, and the Integrations shall be available to you during the Subscription Period specified at the time of purchase.

5.2 Scope of Access. You may not, without our express written permission, share, transfer, sublet, or otherwise provide access to or the benefit of the Integrations you purchase through the Platform other than to Authorized Users (as defined below) or to your authorized Affiliates. For the purposes of this Agreement, “Affiliate” means an entity that Controls, is Controlled by or is under common Control with the subject entity, and “Control” means ownership of 50% or more of the shares, equity interest, or other securities entitled to vote for election of directors or managing authority.

5.3 Limitations. The rights granted herein are limited to ChiliDigital AG’s and its licensor’s Intellectual Property Rights (as defined herein) in the Site and Integrations. Software products not proprietary to ChiliDigital AG, including, without limitation, Third-Party Services, are licensed separately from the respective proprietary owner(s).

 

6. Service Disclaimers

6.1 Integration Descriptions. We are constantly updating the offering of Integrations on the Site. Integration descriptions available on the Site may be mispriced, described inaccurately, or unavailable, and we may experience delays in updating information regarding our Integrations. We cannot guarantee the accuracy or completeness of any information, including prices, Documentation, and availability of the Integrations.

6.2 Compliance with the Law. Unless otherwise specified on the Site or in this Agreement, our Integrations are not designed to comply with industry-specific or region-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Federal Information Security Management Act (FISMA), Financial Services Modernization Act (GLB), the Wall Street Reform and Consumer Protection Act (Dodd Frank), or other similar and applicable laws. You may not use the Integrations where your communications would be subject to such laws. If you store or otherwise process Customer Data subject to HIPAA, FISMA, GLB, Dodd Frank, or other similar laws, you do so entirely at your own risk and acknowledge that ChiliDigital AG will not be liable for non-compliance with this Subsection.

6.3 GDPR Compliance. We intend for every Integration to be compliant with GDPR. While we will continue to provide such Integrations in accordance with the GDPR and other applicable Data Protection Laws, we do not warrant that such Integrations will continue to be GDPR compliant. You are solely responsible for ensuring that the Integrations you purchase or subscribe to meet all laws and regulations applicable to your business and the Customer Data (as defined below) which you process through the Integrations.  For more information about our data protection and regional data hosting policies, please see our Data Processing Agreement and Regional Data Hosting Policy.

 

7. Chili Digital AG Responsibilities

7.1 Integration Support. We will provide support services for Subscribers with an active subscription to one or more of our Integrations. Support services are limited solely to the Integrations which you have purchased and have paid all applicable fees. We may provide support services, in our sole discretion, for Free Services, during a Free Trial, or for Integrations purchased as a one-time fee.

7.2 Support Requests. We will make reasonable efforts to respond to all Subscriber support requests within twenty-four (24) hours, except for weekends and federal holidays. However, no guarantees or warranties of any kind are given that Subscriber support requests will be resolved within any particular time frame or that we will satisfactorily answer or resolve any requests.

7.3 Updates and Upgrades. We may make revisions, bug-fixes, patches, or other alterations to the Integrations intended to correct an error in the Integrations or where required to correct a breach of warranty or other violation of this Agreement or applicable law (“Update”). We may also make updates, revisions, or other alterations to the Integrations that are intended to improve, expand, or otherwise enhance the functionality of the Integrations (“Upgrades”). We will make Updates and Upgrades to the Integration via releases. Updates will be made generally and commercially available to you without levying an incremental fee. Upgrades will be released by us at our discretion, and may be subject to additional fees (“Upgrade Fees”). You may Update or Upgrade your Integrations by following the instructions provided on the Platform, which may require reauthorizing the Integrations and/or paying additional Upgrade Fees, if applicable. The terms and conditions of this Agreement will govern any Updates and Upgrades provided by us to the Integrations unless such release is accompanied by an updated Agreement, in which case the updated Agreement shall control to the extent it conflicts with this Agreement.

 

8. User Accounts

8.1 Account Creation. You must create a User Account to request, access, and use any Integrations available on the Site. When creating your User Account, you must provide complete, accurate, and current contact information, including your name, mailing address, email address, and phone number (“Contact Information”). You must also create a username and password (“Credentials“), and you are solely responsible for safeguarding your Credentials.

8.2 Account Responsibilities. You may not transfer, sell, or share your User Account with other users or third-parties other than authorized users who you have provided Credentials or have otherwise granted access to your User Account through the Platform (“Authorized Users”). You are responsible for maintaining the confidentiality of your Credentials and User Account, and for all activities that occur under your User Account. You agree to immediately notify us of any unauthorized use of your Credentials or User Account or any other breach of security, and ensure that you exit from your User Account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this section. You may edit your Contact Information and how you interact with the Integrations by logging into your User Account and changing the settings in the “My Account” section.

 

9. Your Responsibilities

9.1 Your Responsibility. You shall (i) be solely responsible for the accuracy, quality, integrity, and legality of your Customer Data and the means by which you acquire Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access or use of the Platform and the Integrations; and (iiii) use the Integrations only in accordance with this Agreement and all applicable laws and government regulations, including without limitation, all laws relating to Intellectual Property Rights, nondiscrimination, technology export, privacy, and data security laws, and will not take any action that harms or violates the rights of any person or entity. Without limiting the generality of the foregoing, you are responsible and liable for: (a) compliance with all privacy laws applicable to the collection, storage, transfer, and use of your Customer Data, including all proper requests for disclosure and deletion of your Customer Data requested by your customers; and (b) all uses of the Platform or Integrations resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

9.2 Prohibited Uses. Except as expressly permitted by mandatory law and this Agreement, you shall not:

9.2.1 Access the Integrations in order to build a similar product or competitive product;

9.2.2 Copy, reproduce, or republish the Integrations, in whole or in part;

9.2.3 Modify or create derivative works based upon the Integrations;

9.2.4 Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the Integrations;

9.2.5 Share nonpublic features or content of the Platform or Integrations with any third party;

9.2.6 Assign, transfer, sell, resell, rent, lease, time-share, distribute, or otherwise transfer the rights granted to you under this Agreement to any third party;

9.2.7 Use or access the Platform or the Integrations to provide service bureau, time-sharing, or other computer hosting services to third parties;

9.2.8 Remove, modify, or obscure any copyright, trademark or other proprietary notices;

9.2.9 Use the Integrations in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law;

9.2.10 Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

9.2.11 Use the Integrations in any way to discriminate against any individual or class of individuals protected under federal, state, or local laws, or which may have a discriminatory impact against any individual or class of individuals, or which otherwise promotes illegal, racist, or discriminatory activities or outcomes;

9.2.12 Use any robot, spider, scraper, or other automated means to access the Platform or the Integrations for any purpose without our express written permission;

9.2.13 Introduce any malicious code or instructions that may disrupt, damage, delay, or interfere with other Users’ use of the Platform or the Integrations;

9.2.14 Upload, download, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

9.2.15 Disrupt or interfere with the security of, or otherwise abuse, the Platform, Integrations, system resources, accounts, servers, or networks connected to or accessible through the Integrations or affiliated or linked to the Platform;

9.2.16 Access, tamper with, or use non-public areas of the Platform or Integrations. Unauthorized individuals attempting to access these areas of the Integrations may be subject to prosecution; or

9.2.17 Frame or link to the Site except as permitted in writing by us.

 

10. Subscriptions and Payments

10.1 Subscription Fees. You shall pay the fee specified on the Platform at the time of purchase of the Integrations, if applicable (“Subscription Fee”). Subscription Fees are billed to you in advance and on a recurring and periodic basis as specified on the Site at the time of the purchase. Unless stated otherwise, all Subscription Fees are payable in EUR.

10.2 Recurring Payments. If you have purchased Subscription Services you authorize us to charge you on a recurring basis as specified on the Platform at the time of purchase. If we do not receive payment from our Payment Processor (as defined herein), or if your payment method expires or is rejected, you agree to pay all amounts due upon demand. Following such non-payment, we may require you to provide a second valid payment method to our Payment Processor before continuing use of the Integrations. You authorize us to charge outstanding Subscription Fees and other amounts due through our Payment Processor. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your credit card statement. If you do not bring them to our attention within thirty (30) days, you agree that you waive your right to dispute such problems or discrepancies.

10.3 Nonrefundable. All Subscription Fees are non-cancellable and non-refundable when paid, and no refunds will be permitted if you cancel your Subscription Services prior to the end of the Subscription Period. Certain refund requests for Subscription Services may be considered by us on a case-by-case basis and granted at our sole discretion.

10.4 Price Changes. We reserve the right to revise any Subscription Fees at any time prior to your purchase of such Subscription Service and at any time thereafter before the renewal of the Subscription Period. Any Subscription Fee changes will become effective at the end of the then-current Subscription Period. We will provide you with reasonable notice prior to any change in the Subscription Fee to give you an opportunity to terminate the Subscription Services before such change becomes effective. Your continued use of the Subscription Services after the Subscription Fee change comes into effect constitutes your agreement to pay the updated Subscription Fee amount.

10.5 Fee Adjustments. The prices quoted may be adjusted by us after you purchase an Integration in the event of any occurrence impacting the Subscription Fees and/or the Integration as applicable to you, including due to our ability to comply with applicable law, government action, changes in applicable Taxes, increased hosting, or transaction costs, increased foreign exchange rates, and other matters beyond our reasonable control. In that event, we will notify you of such adjustments and you will have the right to cancel your order and receive a refund of any Subscription Fees paid applicable to such purchase.

10.6 Free Trial. You may be required to enter your billing information to sign up for the Free Trial. Unless you cancel the Subscription Services prior to the end of the Free Trial, you will be automatically charged for all the applicable Subscription Fees described on the Site for the Integration purchased.

10.7 Payment Processing. All payments made through the Platform are made and processed through a third-party payment processor such as Stripe (“Payment Processor”). We do not access or store any financial information, including without limitation, credit card numbers, bank account numbers, or any other information by which a charge can be made. By utilizing Stripe or any other third-party payment processor, you are agreeing to their separate terms of service and/or privacy policy. We reserve the right to change the Payment Processor at any time. You understand and agree that we will not be held liable for any failure by you to complete a transaction through a Payment Processor on the Site. We are in no way responsible for resolving any dispute, support, penalty, or issue of any nature that may occur between you and the Payment Processor.

10.8 Taxes. Unless otherwise stated, Subscription Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction in connection with the Subscription Fees.

 

11. Cancellation; Suspension; and Termination

11.1 Cancellation. You may cancel the renewal of any Subscription Services prior to the end of the Subscription Period either on your “My Account” settings page or by contacting us at support@chili.ch.

11.2 Failure to Pay Fees. If any Subscription Fees are not received from you when due, in addition to the other rights and remedies available and at our discretion, we may: (i) suspend access to the Integrations until all undisputed amounts are paid, and/or (ii) levy a late fee at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is higher, from the date such payment was due until the date paid. You shall reimburse us for all reasonable costs incurred by us in collecting any late payment or interest, including attorneys’ fees, court costs, and collection agency fees. WE WILL NOT BE LIABLE FOR ANY LOSSES WHATSOEVER INCURRED BY YOU RELATED TO YOUR FAILURE TO PAY UNDISPUTED FEES IN ACCORDANCE WITH THIS SECTION.

11.3 Suspension or Termination by Us. We, without prior notice, may suspend or terminate your use of the Integrations, at any time if, in our sole discretion, your use of the Integration is in violation of this Agreement or applicable law, or if we otherwise reasonably believe that your use of the Integration could cause damage to the Integration, to avoid obligations or to avoid non-compliance with this Agreement or applicable law by us, to prevent the violation of the rights of other users, or for any other reason, even if not expressly set forth in this Agreement. Our right to suspend and/or terminate your User Account does not limit our right to seek any other remedy available to us through this Agreement or at law.

11.4 Effect of Cancellation. You must cancel all applicable Integrations purchased through the Platform individually, and cancelation of any one Integration will not result in cancelation of any other purchased Integrations. Upon cancellation or expiration of any Subscription Services, all of your rights to access and/or use the canceled Integrations will cease by the end of the Subscription Period and you shall discontinue all use of the Integrations. Cancelation of any Integration may result in the deletion and/or inability to access Customer Data applicable to such canceled Integration. Cancellation of any or all Integrations purchased by you shall not relieve your obligation to pay any outstanding Subscription Fees or other amounts owed by you to us, nor will it relieve you of any obligations set forth in this Agreement applicable to your use of the Integrations prior to cancellation.

 

12. Proprietary Rights

12.1 Definition of Intellectual Property Rights. “Intellectual Property Rights” means any and all of the following in any and all jurisdictions throughout the world (whether registered or unregistered): (a) patents and patent applications (including continuations, continuations-in-part, divisional, reexaminations, reissues, and extensions thereof); (b) copyrights; (c) trademarks, trade dress, service marks, and other similar designations of source of origin, together with the goodwill symbolized by or associated with the foregoing; (d) trade secrets; and (e) all other proprietary or intellectual property rights under any law or international conventions throughout the world, including all registrations of, and applications for, any of the items described in the foregoing.

12.2 Reservation of Rights. Subject to the rights granted under this Agreement or any Product Specific Terms, we reserve all Intellectual Property Rights in and to the Platform and the Integrations. You acknowledge and agree that this Agreement does not grant you any title or right of ownership in or to the Platform or Integrations, or to any enhancements, customizations, integrations, modifications, suggestions, Feedback (as defined below), features or feature requests, or improvements that are developed, associated, or integrated into the Integrations. You shall not take or cause any action inconsistent with or which would impair the rights of ChiliDigital AG or its licensors in the Integrations. “Feedback” means any communications or materials sent or transmitted from you to us suggesting or recommending changes to the Integrations, including but not limited to new features or functionality relating thereto, or any comments, questions, or the like.

12.3 Proprietary Notices. The Integrations may contain proprietary notices and/or attribution notices that shall not be removed, modified, or obstructed by you in any way. The ChiliDigital trademarks, our logos, and all other service marks, or trademarks (“Marks”) are trademarks or registered trademarks of ChiliDigital AG or its Affiliates, partners, or licensors. You may not use, copy, reproduce, republish, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity, without our prior written consent.

12.4 Promotional Rights. You agree that we may reference you in our client listings and place your name and logo on our website and marketing materials relating to our Platform, as well as in any press releases or client “case studies.” You hereby grant us a limited license to use your trademarks (name and logo only) for such limited uses, subject to your trademark/logo usage guidelines, if any, provided by you to us. Notwithstanding the foregoing, you may reasonably request removal of any such usage of your trademark/logo with written notice to us.

 

13. Confidentiality

13.1 Definition of Confidential Information. “Confidential Information” means all confidential information disclosed under this Agreement or through Services that a reasonable person would consider confidential, including without limitation, non-public features or components of the Services and Customer Data. Confidential Information shall not include any information that: (a) is or becomes generally known or available to the public through no fault of the receiving party; (b) is already known by the receiving party at the time of disclosure through no wrongful act of the receiving party; (c) is furnished by a third party with the right to do so; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information provided by the disclosing party hereunder.

13.2 Nondisclosure. The parties agree that during the performance of this Agreement each may receive Confidential Information of the other party or other third parties who have entrusted either party with the safeguarding of such Confidential Information. The parties agree not to use or disclose any Confidential Information except for the purpose of meeting its obligations related to the provision of the Integrations and will not use Confidential Information for any other purpose whatsoever. The parties agree that during the Subscription Period and thereafter for as long as Confidential Information remains confidential, the parties shall maintain such Confidential Information in strict confidence. The parties shall advise all their employees, agents, or contractors that they are bound by the confidentiality terms of this Agreement. If either party is required to disclose Confidential Information relating to the other party to a court or government agency, it shall, prior to disclosure, notify the other party and allow it an opportunity to take action to preserve the confidentiality of the information. The obligations and responsibilities of this subsection shall survive cancellation of Subscription Services for any reason and shall bind and benefit the parties and their respective successors and assigns.

 

14. Data Protection

14.1 Definition of Customer Data. “Customer Data” means all of Subscriber’s or Subscriber’s customers’ content, information, and data that includes, without limitation, any: (i) data input directly into the Integrations; (ii) data that is accessible or otherwise made available to the Integrations; (iii) Personal Data (as defined below) of you or your customers; and (iv) data that is stored on Third-Party Services and is readable or otherwise accessible by the Integrations.

14.2 Responsibilities for Customer Data. We are not responsible for any intentional or unintentional misuse of Customer Data by you (including by your employees, subsidiaries, Affiliates and/or parent companies) and/or by Third-Party Service providers to whom you have granted access to Customer Data via the Platform. You understand that you are responsible for safeguarding Customer Data, and for backup and restoration of Customer Data. We are not responsible for the unauthorized disclosure of Customer Data resulting from your negligence, Third-Party Services, or any other means outside our reasonable control.

14.3 Personal Data. For the purposes of this Agreement, “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by General Data Protection Regulation (“GDPR“); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation. Our Data Processing Agreement sets out how we will process Personal Data contained in the Customer Data on your behalf in connection with the Integrations provided to you under this Agreement.

14.4 User Privacy. Your privacy is very important to us. Our Privacy Policy sets out the categories of Personal Data and other data we collect directly from you, and how we store and use it. By accepting this Agreement you expressly consent to our disclosure and use of your Personal Data as described in our Privacy Policy, which is incorporated herein by reference. We encourage you to read our Privacy Policy before you submit any Personal Data to the Platform. Without limiting the terms and conditions of our Privacy Policy, you acknowledge and agree that we may disclose your Personal Data, including your name, email address, and User Account activity when we believe, in our sole discretion, that such disclosure is necessary or appropriate to: (i) comply with legal processes; (ii) enforce this Agreement; or (iii) to protect our rights, property, or personal safety or that of other users or the public.

14.5 Data Hosting. Certain Integrations may provide for hosting on your servers and/or on cloud hosting services located in a territory other than the Switzerland or the European Union, as specified in our Product Specific Terms and Regional Data Hosting Policy. Unless otherwise specified in our Product Specific Terms or Regional Data Hosting Policy, all Customer Data is stored and hosted in Switzerland and you expressly agree to our processing and/or transfer of Customer Data to Switzerland. We reserve the right to update or modify our cloud hosting services as specified in this Agreement or through Product Specific Terms. For more information about how we host your Customer Data, please see our Product Specific Terms and Regional Data Hosting Policy. For more information about how we may transfer Customer Data from one location to another, please see our Data Processing Agreement.

14.6 Hosting Disclaimer. Any use of the Integrations is at your own risk, and you are responsible for ensuring that the Integrations you purchase meet the data protection laws applicable to you and/or your customers, and you must comply with all applicable laws and regulations in using the Integrations. We may limit the Integrations’ availability at any time, in whole or in part, to any person, geographic area, or jurisdiction that we choose, at our sole discretion. We may maintain different data hosting and security protocols for different Integrations and for Subscribers in different jurisdictions at our sole discretion. For more information regarding how we process and transfer Customer Data, please see our Data Processing Agreement.

14.7 Related Data. ChiliDigital AG may derive information associated with or arising out of your use of the Platform or any ChiliDigital AG Integrations (“Related Data”). Related Data includes, without limitation, data associated with requests made to, and responses generated in connection with, the Integrations. Related Data will be our property, and neither us nor any of our Affiliates shall have any duty to compensate or account to you in connection with any of the foregoing rights. Except as required by law or by valid legal process, we shall not, without your consent, specifically identify you or any of your customers in association with such Related Data other than as expressly permitted under this Agreement, our Privacy Policy, or our Data Processing Agreement.

14.8 Use of Customer Data. ChiliDigital AG is committed to protecting your Customer Data and will not access, sell, transfer, or use your Customer Data (excluding Related Data) other than as necessary to provide the Integrations to you, including for troubleshooting, testing, and maintenance, and only for as long and as much as required (“Maintenance”). In order to permit us to provide Maintenance for your Integrations, you hereby grant us a non-exclusive, royalty-free, assignable, sublicensable, and irrevocable right and license to use, reproduce, adapt, and distribute Customer Data as reasonably necessary: (i) to provide, during the Subscription Period, the Integrations to Authorized Users as required under this Agreement and to exercise our other rights, and perform our other obligations, under this Agreement; and (ii) in perpetuity, to use and disclose Related Data, on an anonymous (de-identified) basis only, for statistical, analytical, research, marketing, product/service improvement, and other commercial purposes. The license at subsection (ii) above will survive the termination or expiration of this Agreement for any reason.

 

15. Third-Party Services

15.1 Third-Party Content. The Platform and the Integrations may contain content or links to third-party applications, services, websites, and other content that are not owned or controlled by us (“Third-Party Content”). We do not endorse or assume any responsibility for any such Third-Party Content. If you access Third-Party Content from the Platform, you do so at your own risk and you understand that this Agreement and our Privacy Policy do not apply to your use of such Third-Party Content. You expressly relieve us from any and all liability arising from your use of any Third-Party Content, and any terms related to Third-Party Content are solely between you and the Third-Party Content provider. You agree that we will not be responsible for any reliance or damages of any sort relating to your use of Third-Party Content.

15.2 Third-Party Services. The Integrations provide access and/or integrate with applications, software or services that are provided by third parties and which interoperate with the Integrations (“Third-Party Services”). All Third-Party Services are provided “As-Is,” and we do not warrant any such Third-Party Services, regardless of whether they are required to use our Integrations. You expressly relieve us from any and all liability arising from your use of any Third-Party Service, and any use by you of such Third-Party Service is solely between you and the applicable Third-Party Service provider. We do not endorse or assume any responsibility for any such Third-Party Service. If you access a Third-Party Service from the Platform or through an Integration, you do so at your own risk and you understand that this Agreement does not apply to your use of such Third-Party Service. We shall not be responsible for any disclosure, modification, or deletion of your Customer Data, including Personal Data, resulting from access by Third-Party Services. Additionally, we are not responsible for any downtime or unavailability of any Third-Party Services which is outside our reasonable control. Under no circumstances will we be liable for any indirect, special, incidental, punitive, or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use or the inability to use a Third-Party Service.

 

16. Disclaimer of Warranties

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, IF ANY, THE INTEGRATIONS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND AND WE MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, THAT: (I) THE INTEGRATIONS WILL MEET YOUR REQUIREMENTS; (II) THE OPERATION OF THE INTEGRATIONS WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; (III) DEFECTS, IF ANY, WILL BE CORRECTED; (IV) THE INFORMATION OR CONTENT PROVIDED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, OR CURRENT; OR (V) THE PLATFORM, ITS SERVERS, CONTENT, OR EMAILS SENT FROM OR ON OUR BEHALF ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES WORMS, MALWARE, TIMEBOMBS, OR OTHER HARMFUL COMPONENTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE FURTHER DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. YOU AGREE THAT YOUR USE OR PURCHASE OF INTEGRATIONS IS NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES.

 

17. Indemnification

You shall indemnify and hold us and our Affiliates harmless from and against any claims, actions, losses, damages or other liabilities that arise out of or result from any claim of any third party relating to: (i) any dispute or alleged dispute between you and your customer; (ii) any breach by you of any covenant, representation, or warranty set forth in this Agreement; (iii) any violation by you of any applicable law; (iv) your use of Third-Party Services; or (v) the unauthorized use of the Integration by any person using your Credentials.

 

18. Limitation of Liability

18.1 Limited Liability. IN NO EVENT WE WILL BE LIABLE TO YOU UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT, AND YOU CANNOT RECOVER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS); (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, INTERRUPTION, DELAY, OR DAMAGE RESULTING FROM SYSTEM FAILURE, MALFUNCTION, SHUTDOWN, FAILURE TO ACCURATELY TRANSFER OR READ INFORMATION, FAILURE TO PROVIDE CORRECT INFORMATION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES RESULTING FROM OR RELATED TO THE USE OR INABILITY TO USE THE INTEGRATIONS, HOWEVER CAUSED; (V) LOSS, INABILITY TO USE, OR RECOVERY OF ANY CUSTOMER DATA, OR BREACH OF CUSTOMER DATA OR SYSTEM SECURITY OTHER THAN AS A RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (VI) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE.

18.2 Aggregate Liability. YOU AGREE THAT OUR TOTAL LIABILITY TO YOU ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE INTEGRATIONS WILL NOT EXCEED, IN THE AGGREGATE FOR ALL SUCH LIABILITIES, ONE HUNDRED EUR (EUR100), OR THE TOTAL AMOUNT OF FEES, IF ANY, ACTUALLY PAID BY YOU TO US DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE MOST RECENT ACT OR OMISSION GIVING RISE TO OUR LIABILITY, IF ANY. YOU RELEASE US FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS IN EXCESS OF THE LIMITATION. THIS LIMITATION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED WARRANTY OR REMEDY HEREUNDER IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

18.3 Allocation of Risk. You acknowledge and agree that we provide the Integrations in reliance upon the disclaimers of warranty and limitation of liability provisions provided herein, and that the terms of this Agreement reflect an allocation of risk between you and us (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the provisions herein form an essential basis of the bargain between you and us. If you are subject to applicable laws that prohibit you from entering into the risk allocation arrangement as set forth herein, then the terms will apply to you to the fullest extent permitted by applicable law, it being understood that you and we wish to enforce the provisions of this Agreement to the maximum extent permitted by applicable law.

 

19. General Provisions

19.1 Entire Agreement. This Agreement, together with our Privacy Policy and any Product Specific Terms, and any amendments and any additional agreements you may enter with us in connection with the Integrations, constitutes the entire agreement between you and us concerning the Site and/or the Integrations.

19.2 Rights Cumulative. No right or remedy conferred upon or reserved to us is intended to be exclusive of any other right or remedy (unless such intent is expressly set forth in such provision), and every right and remedy shall be cumulative and in addition to any other right or remedy, now or hereafter legally existing upon any default.

19.3 Severability. In the event that any provision of this Agreement is considered invalid, illegal, or unenforceable by a court of competent jurisdiction having authority to bind the parties under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired.

19.4 No Waiver. Our failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. A waiver of any default by us will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

19.5 No Transfer; No Assignment. This Agreement and any rights granted to you hereunder may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

19.6 No Third Party Beneficiaries. Unless expressly stated otherwise herein or in any applicable addenda, nothing in this Agreement is intended to or will confer upon any third party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

19.7 Injunctive Relief. You acknowledge that a breach of the Proprietary Rights or Confidentiality sections of this Agreement could cause irreparable injury to us that may not be adequately compensated in money damages. In the event of such a breach, we shall be entitled to seek equitable relief to protect our interests, including but not limited to preliminary and permanent injunctive relief.

19.8 Arbitration. For any dispute with us, you agree to first contact us at support@chili.ch and attempt to resolve the dispute with us informally for at least thirty (30) days before initiating any arbitration or court proceeding. In the event we are unable to resolve the dispute informally, you and we agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this provision to arbitrate, shall be determined solely and exclusively by binding arbitration before a single arbitrator. You and we also agree that the arbitration shall be conducted by the Swiss Arbitration Association (“SAA”) under the Commercial Arbitration Rules and that such arbitration will be conducted in Switzerland, unless you and we agree otherwise. Each party will be responsible for paying any SAA filing, administrative and arbitrator fees in accordance with SAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

19.9 No Class Action; No Jury Trial. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NO CLASS ACTION OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION OR OTHER PROCEEDING UNDER THIS AGREEMENT. UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

19.10 Governing Law. The laws of Switzerland shall govern this Agreement without regard to the principles of conflict of laws. Any dispute between the parties that are excluded from the arbitration agreement or that cannot be heard in small claims court shall be resolved in Commercial Court of Zurich, Switzerland.

19.11 Limitation of Claims. The period of limitation for any cause of action arising out of, based upon, or relating to this Agreement, including without limitation any claim in contract (including breach of warranty) or tort (including any claim of Chili Digital AG liability or negligence), or a defect in, or failure of performance of the Integrations is hereby reduced to and shall be a period of twelve (12) months after such cause of action arises and the party having the cause of action becomes aware of the same.

19.12 Notices; Electronic Communication. By providing us with your email address, you consent to receive our related communications and notices electronically and you agree that all agreements, notices, disclosures and other communication that we provide to you via the Platform or email satisfy any legal requirement that such communications be in writing. We may also use your email address to send you other messages, such as changes to the features of the Integrations and special offers (“Promotional Messages”). If you do not want to receive Promotional Messages, you may opt out by clicking the “Unsubscribe” link in an email, or by emailing us at support@chili.ch

19.13 Force Majeure. Neither party shall be liable for any failure or delay in its performance under this Agreement or any and all addenda due to circumstances beyond its reasonable control (other than the payment of sums due), provided that it notifies the other party as soon as practicable and uses its best efforts to resume performance (such a “Force Majeure Event”).

 

Contact

For questions regarding this Agreement contact us at support@chili.ch.