General Terms and Conditions for Businesses
The following constitute the General Terms and Conditions for the Experify Platform and Related Services (hereinafter "GTCs") provided by Experify AG.
Description of the Software-as-a-Service subscription and the services offered therewith as well as application of these GTCs
1.1 Experify AG, with its registered office in Zurich/Switzerland, postal address Albrisriederstrasse 199, 8047 Zurich/Switzerland, email address info@experify.io, registered in the Commercial Register of the Canton of Zurich under company number CHE-377.954.338 (hereinafter "Experify") operates a platform (hereinafter and for all subdomains and/or the Experify App referred to as the "Experify Platform") for the exchange of experiences about various products under <www.experify.io>, <www.experify.com>, and any subpages, through which persons interested in purchasing Customer's products (hereinafter "Users") can find existing owners or users of Customer's products (hereinafter "Locals").
1.2 These GTCs of Experify, together with Experify's Privacy Policy and the Terms of Service For Users, form an integral part of Experify's Subscriptions and individual offers to the customer (hereinafter "Offer"). If the customer accepts the offer or pays for a subscription, these GTCs of Experify and the Privacy Policy of Experify will be deemed accepted by the customer. The accepted offer, including these GTCs, Experify's privacy policy, and Terms of Service for Users shall govern the contractual relationship between Experify and the customer unless the parties have expressly agreed otherwise in writing.
1.3 Experify may amend these GTCs and any other document referred to herein at any time at its sole discretion. Experify will notify the Customer of such changes to the extent the changes are applicable to the existing contractual relationship between the parties. To the extent such changes are required by applicable law, the changes will apply to an existing contractual relationship between Customer and Experify upon notice from Experify. If the changes are not required by law, but do not adversely affect the Customer's material rights and obligations under the existing contractual relationship, such changes will also be in full force and effect. To the extent that the changes adversely affect material rights and obligations of the customer under the existing contractual relationship, such changes shall not become effective until the customer consents thereto.
1.4 The Customer agrees to these terms by doing one or more of the following: (a) clicking a box or button confirming that you agree to these terms (or a similar confirmation); (b) signing or accepting a quote, order form or similar document which refers to these terms; (c) paying or accepting an invoice for a subscription to our paid services; or (d) claiming a business profile page or accessing or using any of our services.
Subscription
2.1 Experify hereby grants Customer a non-exclusive subscription to the Experify Platform or elements thereof as set forth in detail in the selected Subscription Plan.
2.2 Unless otherwise expressly provided in the Offer or Subscription Plans, the Experify Platform may only be used by the Customer as follows: The Experify Platform may be used to passively promote Customer's products and services by allowing Users to find Locals through the Experify Platform and to incentivize Locals with rewards. Any other use of the SaaS by Customer is prohibited.
2.3 The Experify platform or its use may not be sublicensed or otherwise made available by the customer to other brand owners or third parties. It may only be used for the benefit of the customer and for the domain specified in the offer. The Experify Platform or elements thereof may not be copied or otherwise reproduced. The Experify platform may not be tampered with, modified, decompiled, or reverse engineered. The Experify Platform may not be used for any purpose not expressly permitted by these GTC and all applicable laws and regulations.
2.4 The Experify platform is made available to the customer in its current version. Experify may update the Experify Platform to new versions at any time at its sole discretion. If provided by Experify, Customer will use the updated versions of the Experify Platform. There is no general entitlement to receive updates or upgrades for the Experify Platform.
2.5 The customer has no claim to the source or object code of the Experify platform or individual elements thereof.
Duties of Experify
3.1 Experify will provide services as stated on the website and in the Offer or Subscription Plan.
3.2 Experify will monitor the availability of access to the Experify Platform via the Internet and take reasonable steps to limit interruptions in availability. However, Experify shall not be liable for any interruptions to the Internet or network equipment or services that are beyond Experify's control.
3.3 Experify will provide reasonable advance notice to Customer in the event of planned maintenance and temporary unavailability of the Experify Platform.
3.4 Experify shall make support services available to Customer on weekdays from 8 a.m. to 6 p.m. (CET +1) (hereinafter "Support Hours").
3.5 Within the Support Hours, Experify will use reasonable efforts to provide the following (subject to staff and workload availability):
First answer to questions about support@experify.io within one working day at the latest.
Reports of unavailability or malfunctions shall be reported by Customer via email to support@experify.io. All reports must be accompanied by a reasonably detailed description of the steps taken to cause the unavailability or malfunction. Experify will use reasonable efforts to address such reports and resolve the issues within 3 business days of receipt of the report.
3.6 If Customer is unable to provide evidence that the reported unavailability or Customer-reported disruptions are Experify's responsibility, Customer shall compensate Experify for the effort on an expert time basis, costs and expenses based on Experify's then-current rates.
3.7 Services other than those specifically described in this Section 5 or more quickly requested by Client shall be compensated by Client to Experify based on Expert Time, costs and expenses based on Experify's then-current rates.
Subcontractors
4.1 Experify shall be entitled to sign third parties for all its obligations under the Proposal and these GTCs at its own expense, no consent of the Customer is required. Experify agrees to impose confidentiality obligations on such subcontractors that are no less stringent than those agreed between the customer and Experify.
4.2 Experify's liability for the services, acts and omissions of its subcontractors is hereby excluded to the extent permitted by applicable law.
Obligations of the Customer
5.1 Customer is fully responsible for their access to the Internet in order to access and use the Experify Platform.
5.2 The customer is responsible for the safekeeping of its password for the Experify platform and its protection against unauthorized access. Customer shall be liable for all activities under its account or through the use of Customer's personal password and credentials. Without limiting the customer's responsibility, the customer shall immediately notify Experify if there is any indication that an unauthorized third party may have gained access to or misused the login, identification or authentication data.
5.3 The Customer is fully responsible for ensuring that the Customer Services and the disclosure and use of personal data within the scope of the Subscription are carried out in accordance with the applicable laws and regulations, see also section 13.2 of these GTCs.
5.4 In case the Customer chooses to add Experify’s Reward Program, the Customer is fully responsible for handling those rewards and meeting obligations that arise from Users that have collected points to redeem rewards.
5.5. The customer bears full responsibility for its communications, premiums (including all premium processing), and products.
5.6 Sending invitations to your consumers outside of our platform: Where you display or send review invitations outside of our platform (for example, where you create and send review invitation links yourself or direct consumers to create reviews on your business profile page), you agree that you are accessing and using our services. It is your responsibility alone to make sure that the invitations that you send meet all applicable legal and regulatory requirements, and comply with the guidelines.
5.7 The Customer takes responsibility for fully controlling who administrates and can access your account, how it is managed and how you use our services. For example:
The Customer controls access to their account. They decide who is allowed to use and access the services available through your business account (“authorised users”) and what kind of access each of those authorised users has. The Customer can change or stop that access at any time.
The Customer is responsible for all their authorised users’ activity, their use of our services, and their compliance with these terms and our guidelines.
The Customer promises that they’ll keep their information (including a current email address) up to date.
The Customer is responsible for providing true, accurate and complete information.
The Customer is also responsible for protecting the username and password from getting stolen or misused.
The Customer has the right to let their affiliates access and use our services under these terms, however, if they do so they are responsible for ensuring that those affiliates comply with these terms and our guidelines, and the Customer is liable for their actions and omissions as if they were the Customer’s own.
The Customer should make sure to understand the permissions they’re granting to authorised users. Each authorised user that is added to the business account is subject to these terms and our guidelines. The Customer is liable for each of your authorised user’s acts and omissions. It is up to you to ensure that each of your authorised users is fully aware of their obligations and restrictions under these terms and our guidelines.
Fees
6.1 The customer is obliged to pay the fees specified in the Offer or Subscription Plan.
6.2 Charges for additional services not covered in these GTCs or the Subscription Plan must be compensated by Customer to Experify based on expert time, costs, and expenses based on Experify's then-current rates, which will be provided to Customer upon request.
6.3 All fees payable are exclusive of value added tax or other relevant taxes for which the customer is responsible.
6.4 Unless otherwise stated in the offer, all invoices are payable net within 14 days from the invoice date. Payments not made by the due date will incur a late fee of 1.5% per month, or the maximum rate permitted by law, whichever is lower. Late fees are calculated based on the unpaid balance at the due date and will continue to accrue monthly until the full payment is received.
6.5 Customers are responsible for providing complete and accurate billing and contact information to Experify and notifying us of any changes to such information.
6.6 In the event of a late payment, Experify may suspend your access to the Services until all outstanding payments are made in full. Experify reserves the right to initiate collections procedures for payments overdue by more than 14 days.
6.7 We understand that occasionally there may be a billing dispute. In such cases, we encourage customers to contact us promptly for resolution. Disputed charges must be reported to Experify within 60 days of the transaction; otherwise, you waive your right to dispute the charges.
Refund Policy and Cancellation
7.1 Experify does not offer refunds or money-back guarantees. Once a subscription fee is paid, it is non-refundable, regardless of the usage or satisfaction level with the Services provided.
7.2 Customers are encouraged to evaluate the Services during any free trial period offered prior to making a subscription decision.
7.3 To avoid charges for the next billing cycle, customers must cancel their subscriptions before the current subscription period ends. Cancellations are effective at the end of the active subscription period, and customers will continue to have access to the Services until then.
7.4 Experify does not provide credits, refunds, or prorated billing for subscriptions that are cancelled mid-month. In such a circumstance, you will continue to have access to your account until the end of the monthly billing cycle.
7.5 You may cancel your subscription to the Services at any time. To cancel your subscription, you can either do so in the Experify Dashboard or by notifying us via email at success@experify.io.
Confidentiality
8.1 Each party shall, during the term of the Subscription pursuant to the Offer and thereafter, keep confidential and not use for its own purposes (other than to fulfill its respective obligations under these GTCs) any information of a confidential nature (including trade secrets, source codes, uploaded data and other information of commercial value) that becomes known to such party from the other party and that relates to the other party, and shall not disclose such information to any third party without the prior written consent of the other party (unless required to do so by law or by a legal or regulatory authority pursuant to a relevant confidentiality obligation). Source code, uploaded data, and other information of commercial value that becomes known to such party from the other party and that relates to the other party will not be disclosed unless such information is in the public domain, was already known to such party at the time of disclosure, later becomes in the public domain except as a result of a breach of these TOS, or later lawfully comes into the possession of a third party. Each party shall use its best efforts to prevent the unauthorized disclosure of such information.
8.2 Notwithstanding the above, Experify shall be entitled to use the company and brand name of the customer for advertising purposes, in particular for online publications. Furthermore, Experify is entitled to use the information provided by the customer in accordance with section 8.5 in anonymized form for advertising purposes. This right shall not end upon termination of the subscription. Experify is further entitled to process, use and transmit the data (including personal data) and information provided by the customer to the extent necessary to fulfill the obligations arising from these GTCs or to enable all functionalities of the Experify platform.
Guarantees
9.1 Experify does not warrant that access to the Experify Platform will be uninterrupted or error-free. Temporary restrictions may occur for scheduled maintenance or unscheduled emergency maintenance, or due to other causes beyond Experify's control. Restrictions or impairments may also result from actions of users, residents, or third parties, as well as technical conditions of the Internet. The hardware, software, and technical infrastructure used by the customer will also affect the services to be provided by Experify. Experify will use reasonable efforts to provide availability of the Experify Platform of 98%, measured on a monthly basis, excluding scheduled maintenance, excluding partial outages, or causes beyond Experify's control. Experify shall endeavor to ensure that the Experify Platform has the functionality described in the Quote for the duration of the Subscription Term set forth in the Quote and that the Experify Platform complies with Applicable Laws. If Customer notifies Experify by email to support@experify.io of any unavailability or malfunction of the Experify Platform and such limited availability or malfunction is not due to acts or omissions of Customer or Customer's sphere (e.g., failure to properly install a plug-in), or in combination with technology, acts or omissions that are not Experify's responsibility, Experify will, at Experify's option, take one of the following actions:
Make changes to the Experify Platform or find a workaround so that it complies with the functionality described in the Proposal; or
Reduce the monthly subscription fees set forth in the Offer with respect to any reduction in availability or functionality; or
cancel the affected subscription and refund any portion of the subscription fees already paid for the period after the cancellation date.
Any troubleshooting is contingent upon Customer providing all information necessary to assist Experify in resolving the limited availability or disruption, including a documented example of a defect or disruption, or sufficient information to enable Experify to modify its service.
9.2 These GTCs exclusively govern the remedies of the parties in the event of a breach of one of the expressly granted warranties. The sole remedies for limited availability under Section 11.1 are exclusive. Any other warranty, whether express or implied, is expressly excluded.
9.3 The customer warrants that the customer services and their transfer and processing by Experify in accordance with these GTCs comply with the applicable laws and do not violate any third-party rights and data protection rights.
Intellectual Property Rights
10.1 The Experify Platform, all updates, and further releases are protected by intellectual property rights owned by Experify or its licensors. Experify warrants that, to the best of its knowledge, the Experify Platform complies with applicable laws and does not infringe the rights of any third party. Further, Experify warrants that it has the right to grant the subscription to the Experify Platform to Customer in accordance with these TOS.
10.2 The Customer warrants that it holds all necessary rights and licenses to the Customer Deliverables, in particular to all brand names, trademarks, images, etc. contained in the Customer Deliverables and used in connection with the Experify Platform.
10.3 Each party's Intellectual Property shall remain the sole and exclusive property of that party. The right of each party to access and use the other party's intellectual property is limited to use for the purpose of the subscription.
Privacy and Data Security
11.1 The processing of personal data by Experify is governed by Experify's Privacy Policy.
11.2 The Data Owner, as defined in Experify's Privacy Policy, is responsible for Personal Data disclosed to Experify or when using the Experify Platform and Services. The Data Owner warrants that its disclosure and processing of personal data is in compliance with applicable data protection laws and that, where applicable, appropriate consents have been obtained from the data subjects.
Term and Termination
12.1 These GTCs form an integral part of each Offer and shall remain in force during the validity of the Offer and throughout subsequent subscriptions to the Experify Platform pursuant to the Offer. Provisions regarding compensation shall apply beyond the termination of the subscription to the extent a claim is based on acts and omissions prior to the termination of the subscription.
12.2 Either party may terminate a subscription at any time with immediate effect if:
the other party breaches these GTCs and does not remedy such breach after a warning of sixty (60) days; or
the other party becomes insolvent without prior notice or is the subject of bankruptcy or other insolvency proceedings.
12.3 Experify may terminate the subscription at any time (including within the selected fixed term) with immediate effect if the customer is more than 45 days in arrears with payments.
12.4 The following provisions shall survive the term of the subscription: Sections 10, 12 and 13 and 21.
Notes
All notifications shall be made in writing by letter or e-mail to the registered office of the other party.
Waiver
A party's failure to exercise or delay in exercising any right or remedy provided for in these TOS or by law shall not constitute a waiver of such or any other right or remedy, nor shall it prevent or limit the further exercise of such or any other right or remedy. No single or partial exercise of any such right or remedy shall prevent or limit the further exercise of that or any other right or remedy.
Severance Pay
If any provision or partial provision of the Offer, these GTCs or Experify's Privacy Policy is or becomes invalid, illegal or unenforceable, it shall be replaced by a provision that most closely reflects the economic intent of the replaced provision. The amendment or deletion of a provision or partial provision pursuant to this clause shall not affect the validity and enforceability of the remaining Subscription and Applicable Terms.
No Partnership or Agency
Nothing in these TOS is intended to create or be deemed to create a partnership or joint venture between the parties, makes one party the agent of the other party, or authorizes any party to incur or assume any obligation for or on behalf of any other party.
Force Majeure
Neither party shall be in breach of these TOS or liable for the delayed performance or non-performance of any of its obligations, other than the obligation to pay fees, under the Offer, these GTCs and Experify's Privacy Policy, if such delay or non-performance is due to events, circumstances or causes beyond its control. In such circumstances, the time for performance shall be extended by a period equal to the period during which performance of the obligation was delayed or not performed OR the affected party shall be entitled to a reasonable extension of time for performance of such obligations.
Applicable Law and Jurisdiction
18.1 Subscriptions, offers and these GTCs, and any dispute or claim arising out of or in connection with them or their subject matter or formation, shall be governed by and construed in accordance with the substantive laws of Switzerland, excluding its conflict of laws rules and international treaties.
18.2 Disputes arising from or in connection with this contract shall be attempted to be settled amicably by the parties. The place of jurisdiction for disputes is at the registered office of Experify.
