The following contract governs the relationship for the provision and use of services offered at www.ethika.app.
1. DEFINITIONS
1.1. CONTRACT: means this Service Agreement; ENTITY: means the entity that accepts the following CONTRACT in order to use the SERVICES prepared by the PROVIDER; PROVIDER: ariska consulting Sàrl (Geneva) ; PLATFORM: means the ENTITY’s personal digital whistleblowing platform; SERVICES: preparation and provision of IT resources and training materials by the CONTRACTOR for the benefit of the ENTITY, in order to take advantage of a Digital Whistleblowing service based on GlobaLeaks software and delivered in Software as a Service (SaaS) mode.
2.SUBJECT OF THE CONTRACT
2.1 WHEREAS, GlobaLeaks is open-source software created to enable secure and anonymous whistleblowing initiatives released under the Affero General Public License (AGPL), that the use of open-source software is of paramount importance to the CONTRACTOR, and that the open-source license may include provisions that expressly override some of these terms.
2. 2 The CONTRACTOR proposes to the ENTITY the stipulation of conditions that allow the ENTITY to take advantage of the following SERVICES completely free of charge: access to a digital whistleblowing PLATFORM based on the GlobaLeaks software that allows the receipt of reports of wrongdoing from potential whistleblowers and dialogue with them, also anonymously; possibility of data export and configurations for migration to autonomous information systems guaranteed by the use of an open-source technology (no lock-in); training materials in e-learning mode; dispatch of informational materials in relation to technical and regulatory updates on whistleblowing; specific texts on whistleblowing and on the use of the platform to be published on the ENTITY website; templates of communication materials for the purpose of informing and raising awareness of potential whistleblowers.
2.3 Customizations are limited to the inclusion of the ENTITY logo and the uploading of customized texts to the homepage of the PLATFORM.
3. ACCESS TO SERVICES
3.1 Access to SERVICES is granted following registration at www.ethika.app. Having completed the registration, the ENTITY has access to the PLATFORM offered in SaaS mode and accessible via the Internet. The CONTRACTOR shall have the right to change the manner of access and use of the SERVICES, also due to changes in telematic technologies as well as due to changes in the technical characteristics of the application and basic software (operating systems and technological infrastructure).
3.2 By registering, THE ENTITY ensures that all personal and business data transmitted by it as part of the registration itself and the created account are complete and correct in terms of content.
4. USE OF THE SERVICES
4.1 The ENTITY is responsible for the proper use of the PLATFORM and the CONTRACTOR is not responsible for either its misuse or the loss of access credentials.
4.2 The data contained in the archives of its PLATFORM are the exclusive property of the ENTITY and may be processed directly only by the ENTITY. The data may be entered, varied, processed, or otherwise treated, only and exclusively in the ways and forms provided by the SERVICES made available by the CONTRACTOR.
4.3 In view of the secure Encryption measures implemented, the parties agree that the storage of Encryption keys shall take place according to option A described in the document Encryption Key Storage Mode attached to this CONTRACT.
4.4 The ENTITY shall promptly notify the CONTRACTOR of any abuse of which it becomes aware.
4.5 The ENTITY is not authorized to use the PLATFORM in any manner inconsistent with this CONTRACT or any applicable regulations. In particular, the ENTITY or personnel authorized to use the PLATFORM shall not: use the PLATFORM and SERVICES for illegal or unauthorized purposes; duplicate, transfer, authorize, assign, give access to, or copy the PLATFORM, without the prior written permission of the CONTRACTOR; attempt to modify, adapt, or alter any part of the PLATFORM or SERVICES; interfere with or disrupt the operation of the PLATFORM or SERVICES, servers, or networks connected thereto, including through the use and/or transmission of worms, viruses, spyware, malware, or any other code that has a destructive or disruptive nature; introduce content or code or interfere in any other manner with the ways in which the PLATFORM is made available or displayed on the browser; request SERVICES through unauthorized means or ways, including, but not limited to, through the use of automated devices, scripts, bots, spiders, crawlers or scrapers; circumvent, remove, shut down or otherwise disable implemented security measures.
4.6 ENTITY shall use the latest available version of the SERVICES and PLATFORM as updated for evolutionary or security enhancements by CONTRACTOR.
4.7 The ENTITY shall independently and under its own responsibility and at its own expense create all necessary conditions for the use of the SERVICES. This applies in particular to the remote terminals, which shall be adequate and compatible with the application and the telecommunications connection. It will be the responsibility of the ENTITY to ensure that the terminals used to use the SERVICES are equipped with up-to-date security measures and antivirus systems adequate to be able to protect the files downloaded to the terminal or uploaded from the terminal to the platform.
4.8 The ENTITY agrees to use the SERVICES exclusively for the purposes and through the contractually agreed channels.
4.9 The ENTITY shall adhere to appropriate technical and organizational security standards and ensure that no viruses, Trojans, or other malicious programs from its systems enter the CONTRACTOR’s systems. The ENTITY is also responsible for monitoring the proper use of the SERVICES by its employees and, in particular, those who are authorized to access the PLATFORM.
4.10 The ENTITY shall ensure that the CONTRACTOR’s use of the information, data, and materials provided by it does not violate the rights of third parties. Before providing the CONTRACTOR with the corresponding information, data, and materials, the ENTITY shall verify whether the CONTRACTOR has permission to use such information, data, and materials within the scope of the agreed upon services in accordance with this CONTRACT and, if necessary, provide any necessary rights of use and obtain the consent of third parties. The ENTITY shall indemnify the CONTRACTOR against all claims of third parties resulting from a breach of the above obligations. The indemnification shall also include the costs of any necessary legal defense.
4.11 The ENTITY also undertakes to observe the following provisions in the use of the SERVICES, in particular: the whistleblowing system may not be used for any other purpose, for example, it may not be used as a platform for exchanging files or information that is illegal or violates applicable legal regulations; the information on the ENTITY’s PLATFORM, which may be publicly accessible, and the description of the alerts in the whistleblowing system must be factual, objective, and accurate. They must not infringe any patent, copyright, trademark, personal right or other protected legal position of any third party; the ENTITY agrees not to distribute the following content through the whistleblowing system or make it accessible to third parties in any other way: content that is pornographic, obscene, offensive, vulgar, or otherwise objectionable; content that poses a security risk such as carrying viruses, Trojans, or other malicious programs; content that is discriminatory, racist, derogatory of human rights, radical, religious, xenophobic, national socialist, pornographic, or otherwise sexually degrading; statements or actions of any kind that violate the provisions of the law; ENTITY agrees to abide by the Acceptable Use Regulations attached to this CONTRACT; in the event of a change in the regulations by the provider, the provider will notify ENTITY and post a copy at: https://www. ethika.app/technical-documentation/.
4.12 If the ENTITY violates its obligations under this CONTRACT, the CONTRACTOR shall have the right to suspend access to the SERVICES and/or to delete the ENTITY’s account and/or content that violates the CONTRACT or the law, or to modify it to an allowable level, to terminate this contractual relationship, and/or to refuse the ENTITY a new registration. Any claim of the ENTITY against the CONTRACTOR for such measures is excluded.
5. INTELLECTUAL PROPERTY
5.1 Any intellectual property rights regarding the PLATFORM and SERVICES are owned or authorized by the CONTRACTOR and are subject to copyright and intellectual property rights under relevant Italian laws and international conventions. The ENTITY agrees not to remove, alter, or conceal any evidence of intellectual property that is incorporated in or accompanies the PLATFORM and SERVICES, and not to reproduce, modify, adapt, produce derivative material based on performing, displaying, publishing, distributing, transmitting, disseminating, selling, authorizing, or in any other way exploiting the PLATFORM and SERVICES. If the ENTITY infringes on the intellectual property right, the CONTRACTOR may inhibit the ENTITY from using the SERVICES and the PLATFORM should it deem it appropriate and proper. The CONTRACTOR owns all rights not expressly granted with respect to the SERVICES and the PLATFORM. The ENTITY agrees not to use, copy and distribute the SERVICES in any manner other than as expressly set forth herein.
5.2 Pursuant to the AGREEMENT and the following provisions, the ENTITY receives the simple, non-exclusive, non-transferable right, limited to the term of the AGREEMENT, to use the SERVICES subscribed to for itself and authorized users for its own purposes.
6. WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 The CONTRACTOR undertakes to provide the SERVICES with the characteristics conforming to those indicated in the product description sheets as of the date of activation of the product, without prejudice to the need to carry out hardware and software upgrades based on contingent circumstances.
6.2 In any event, the CONTRACTOR and its subcontractors shall not be held liable for any loss or damage not reasonably foreseeable.
6.3 The ENTITY agrees to indemnify and hold the CONTRACTOR and its subcontractors harmless from and against any and all claims, suits, or actions arising out of or relating to the use of the SERVICES or the breach of this CONTRACT, including any liability or expense arising out of claims, losses, damages, suits, judgments, court costs, and attorneys’ fees.
6.4 The use through the web of the SERVICES is permitted in its present state, without any guarantee that the functions contained and described in the specifications will meet the needs of the ENTITY or will work in all hardware, software and management/business combinations that may be chosen for use by the ENTITY, which, prior to signing this CONTRACT, has fully checked and evaluated, under its personal responsibility, the satisfaction of its needs. The ENTITY has the burden of constantly checking the software and verifying the result of the processing carried out through it and for the use of which it is solely responsible. The CONTRACTOR assumes no obligation and makes no warranty beyond those expressly described herein. Any liability of the CONTRACTOR for direct and indirect damages of any nature whatsoever that the ENTITY or third parties may suffer as a result of and as a consequence of this CONTRACT and occurring as a result of causes not attributable, even indirectly, to the CONTRACTOR is expressly excluded, including those resulting from the use or non-use of the procedures or from errors of the same, or those, without limitation, for loss or loss of profit, business stoppages, economic or information losses, as well as for malfunctions or defects related to or caused by the computer environments or operating systems on which the programs operate.
6.5 To the maximum extent permitted by law, the CONTRACTOR shall be liable only in cases of intent and gross negligence. This also applies to the intentional or grossly negligent conduct of its representatives and/or auxiliaries. This limitation of liability does not apply in case of injury to life, limb or health or in case of compulsory liability under the Product Liability Act.
6.6 Liability for damages is limited to foreseeable and typical damages. Therefore, events such as force majeure, strikes, official measures, transmission media failures, or other interruptions do not fall within the scope of the CONTRACTOR’s liability.
6.7 Except as expressly provided in this CONTRACT, the CONTRACTOR’s liability is excluded.
7. IMPROVEMENTS, UPDATES AND SUSPENSION OF SERVICES
7.1 The CONTRACTOR shall constantly strive for continuous research and improvement of its SERVICES: it is possible that functionality or features may be added or removed.
7.2 CONTRACTOR reserves the right to expand, modify, or limit features to the extent that this serves technical progress, is necessary to prevent abuse, or is required to do so by law, and does not guarantee that new versions will have identical functionality as previous versions. Such changes may be introduced at any time as the CONTRACTOR continuously updates its SERVICES. They may also be introduced on the basis of a predefined evolution and development plan and any new technical and functional specifications that over time, in its sole discretion, it has deemed useful or necessary, or on the basis of the need for maintenance or correction of any malfunctions or anomalies that have been reported to it or otherwise detected in the use of the SERVICES. For each primary release made on the SERVICES, the CONTRACTOR shall send notice via the PLATFORM, indicating the description of the main functional novelties.
7.3 The ENTITY shall therefore scrupulously verify, at its own sole expense, the applicability of the new updates, and therefore by way of example, but not limited to, it is obligated as of now to verify the new functionalities and whether they are suitable for its purposes without any inaccuracies, lacks and/or defects being able to give rise to any liability on the part of the CONTRACTOR, even on the grounds of slight negligence. The ENTITY hereby exonerates and indemnifies the CONTRACTOR from any liability for damages, of any nature whatsoever, resulting and/or arising to the same and/or to third parties. The CONTRACTOR also reserves the unquestionable right to modify, replace, eliminate and discontinue the distribution of one or more SERVICES and/or to discontinue their updates.
7.4 The CONTRACTOR may also suspend the delivery of SERVICES to carry out updates or maintenance activities. In such case, it will give reasonable notice to the ENTITY.
7.5 After any notice to be sent to the ENTITY by electronic mail, the CONTRACTOR may discontinue the connection if there are proven security and/or confidentiality assurance problems. In any case, the CONTRACTOR shall not be held liable for service interruptions beyond its control such as, but not limited to, the interruption or malfunctioning of telephone, telematics, electrical networks, connectivity services offered by providers or Internet network operators.
7.6 The CONTRACTOR may also decide to suspend or discontinue SERVICES in response to unforeseen circumstances beyond its control or in compliance with a legal obligation. Upon the occurrence of such a condition, where possible, the ENTITY shall be given reasonable notice to allow data to be exported from the systems. Under no circumstances shall the CONTRACTOR be held responsible for delays and/or violations due to causes not attributable to it and/or arising from obligations arising from law, regulations, orders, administrative provisions emanating from any civil and/or military authority, state and/or local government agency, acts or omissions of the other party (and so by way of example but not limited to: fires, floods, earthquakes, strikes, embargoes, wars, sabotage). The CONTRACTOR shall back up the archives, databases and any other information in the space dedicated to the ENTITY. Where, due to causes not attributable to the CONTRACTOR the destruction of the data present on the servers occurs, the CONTRACTOR itself shall restore them from the most recent available backup within 72 (seventy-two) working hours from the reporting of the incident, without the ENTITY being able to make any claim or demand for compensation.
7.7 The CONTRACTOR may, likewise, discontinue the provision of the SERVICES in the event of non-compliance with this CONTRACT.
8. RESPONSIBILITY OF DATA
8.1 The ENTITY is fully responsible for the data entered into the platform reserved for it by the CONTRACTOR and for any reports received and therefore agrees, by signing this CONTRACT, to exempt the CONTRACTOR from any civil and/or criminal liability arising from the storage and dissemination of data entered by it that violates any legal or regulatory requirement or any order coming from an administrative authority or the Judicial Authority.
8.2 The ENTITY is responsible for the safekeeping of authentication credentials for access to the data provided by the CONTRACTOR’S SERVICES in order to prevent access by other unauthorized parties.
8.3 Use of the SERVICES is permitted only as permitted by applicable legislation, including laws, regulations and orders of the Data Protection Authority.
9. DURATION OF THE CONTRACT
9.1 This CONTRACT is valid for 12 (twelve) months commencing from the date of its signature. At the end of the validity period, this CONTRACT shall be deemed, unless otherwise expressly stated, to be tacitly and automatically renewed each time with the duration of one year, unless either party gives notice of termination, by registered letter with return receipt or other means of communication, including electronic, provided that it is assisted by CONTRACTOR’s confirmation, at least 30 days in advance of the scheduled expiration.
10. WITHDRAWAL AND TERMINATION
10.1 The CONTRACTOR has the right to amend this CONTRACT at any time. The ENTITY shall be informed of these changes with reasonable notice and in writing (hard copy or electronic). In this case, the ENTITY shall have the right to terminate prior to the expiration of the notice period. If this right is not exercised, the changes will be considered accepted. If the CONTRACTOR is unable to provide the notice due to unforeseeable and unaffected causes (such as, for example, regulatory interventions), the CONTRACTOR has the right to modify the CONTRACT even without the ENTITY’s consent. The ENTITY shall likewise be informed in writing.
10.2 The parties agree that if the CONTRACTOR intends to eliminate and/or discontinue the distribution of one or more SERVICES, the ENTITY shall have the right to withdraw from the same; the withdrawal shall take effect 20 (twenty) days after receipt of the PEC.
10.3 It is understood that the modification and/or replacement of one or more SERVICES shall not constitute just cause for withdrawal.
10.4 Both parties shall be entitled to withdraw within the terms and in the manner set forth in Article 9.1.
10.5 The CONTRACTOR reserves the right to withdraw from the CONTRACT, suspend or discontinue the provision of the SERVICES to the ENTITY at any time, in the event that the ENTITY violates its obligations under this CONTRACT (for example, in the event that the Acceptable Use Policy is not complied with). Any claim of the ENTITY against the CONTRACTOR for such measures is excluded.
10.6 The CONTRACTOR may also discontinue the provision of SERVICES to the ENTITY at any time in case the PLATFORM is activated by a party not titled by the ENTITY itself, in case the intended use of the PLATFORM is not for anti-corruption compliance of a public entity and/or company controlled by the same in case the use of the PLATFORM involves costs for the end-user paid to a third party (e.g.: private company reselling the free platform to a public entity).
11. TECHNICAL ASSISTANCE AND MAINTENANCE
11.1 Any form of technical assistance and maintenance by the CONTRACTOR is excluded unless otherwise specifically agreed. The CONTRACTOR shall, on a best-effort basis, respond to any requests for clarification received.
12. PROCESSING OF PERSONAL DATA
12.1 The provision of the SERVICES is subject to acknowledgment and acceptance of the Privacy Policy attached to this CONTRACT.
12.2 The ENTITY, as the data controller, is obliged to prepare and provide the data subjects with an appropriate Privacy Notice detailing the information required under the revised Swiss Federal Act on Data Protection (“FADP”) and/or the Regulation (EU) 2016/679 (“GDPR”).
12.3 The CONTRACTOR shall be designated as a Data Processor in accordance with Article 28 of the GDPR and, for this purpose, shall be appointed by means of an appropriate contract or other legal act under the law of the European Union or Member States. The CONTRACTOR undertakes, in turn, to appoint any subcontractors as sub-processors in the manner provided for in Article 28, paragraph 4, GDPR and to notify the ENTITY thereof.
12.4 The personal data processed for the sole purpose of the conclusion of this CONTRACT and the provision of the related SERVICES are those communicated by the ENTITY to the CONTRACTOR.
13. COMPREHENSIVE AGREEMENT
13.1 This CONTRACT constitutes the sole complete and entire AGREEMENT between the parties with respect to the subject matter hereof, and supersedes any prior agreements, understandings, contracts or negotiations, written or oral, that the parties may have entered into with respect to its contents.
13.2 This CONTRACT shall apply to all SERVICES that may be activated even after the first period of validity.
14. VALIDITY OF THE CONTRACT
14. 1 In the event that any of the provisions of the CONTRACT – or any part of it – is deemed null, voidable, invalid or ineffective by the Judicial Authority, or otherwise results or becomes wholly or partially devoid of legal effect or ineffective, such nullity, voidability, invalidity, or otherwise ineffectiveness, shall not affect the other provisions of the CONTRACT nor, much less, shall it result in the nullity, voidability, invalidity or ineffectiveness of the entire CONTRACT.
14.2 The provision – or the part of it – deemed null, voidable, invalid or ineffective by the Judicial Authority, shall be understood to be modified, reinterpreted or supplemented, to the extent and according to the sense necessary for the same to be deemed admissible by law, and judged fully valid and effective by the Judicial Authority, preserving to the greatest extent possible the will of the parties as resulting from the CONTRACT.
14.3 To the extent permitted by applicable law, the provisions of this CONTRACT which, by their nature, scope or meaning, are intended to remain in force even after the expiration, following performance, termination or any other form of termination of the effectiveness of the CONTRACT, shall continue in force and effect.
15. APPLICABLE LAW AND JURISDICTION
15.1 This CONTRACT shall be governed by the laws of the State of Switzerland. By accepting this CONTRACT the parties exclude in its entirety the application of the United Nations Convention on Contracts for the International Sale of Goods (“UN Convention on Contracts for the International Sale of Goods – CISG”, Vienna, April 11, 1980).
15.2 The CONTRACTOR may, at its discretion, also make available and/or sign this CONTRACT in a language other than English. However, the English-language version of this CONTRACT shall always prevail in all cases of disputes and/or in cases of conflict of interpretation with respect to the version translated into another language.
15.3 To the extent permitted by applicable law, the ENTITY, by signing this CONTRACT, confirms that it is entered into between professionals and for commercial purposes, and agrees that the provisions of laws protecting consumers or weak contractors do not apply.
15.4 For all disputes relating to the CONTRACT, the parties acknowledge the exclusive jurisdiction of the Court of Geneva.
Document updated on December 7, 2024