TERMS AND CONDITIONS
This document stipulates the terms and conditions applicable to Users and Customers of Software as a Service (hereinafter “SaaS”), under which, Certilabor S.A.S. (hereinafter “Xertify”) allows the use and access to the Services defined in this instrument.
The user expresses its consent and acceptance of these terms and conditions by clicking and / or double-clicking on the links that the web portal has available for the purpose of making use of SaaS services.
Likewise, by performing any of the activities mentioned above, the Users declare that they have legal capacity and the necessary powers to be bound in accordance with these terms and conditions. If whoever uses Xertify’s SaaS services does so on behalf of a legal entity or third-party, such person warrants that he/she is fully authorized to bind and/or represent such person. In case of not being authorized, the applicant shall be personally liable for the obligations undertaken in accordance with these terms and conditions.
Notwithstanding the foregoing, and upon express written request of the User, Xertify will send an electronic copy of the terms and conditions set forth in this instrument.
“Client”: is the person who requests and acquires the SaaS service that is regulated by these terms and conditions.
“Users”: are the persons authorized by the Client and to whom Xertify activated their respective account to access the Services if they accept the binding nature of these terms and conditions. In that sense, these Persons will be those who hold the license to use the Software covered by this document.
“Maintenance”: shall mean downtime or interruptions to the Service, arising from technical, operational and/or technological maintenance that Xertify is required to perform and may include, but are not limited to: (i) maintenance windows of Xertify, understood as the modification or repairs of infrastructure of the Service; (ii) maintenance programmed by the Client, where maintenance of the Service configuration is performed, which has been previously requested by the Client and, therefore, has been subject to prior and joint programming. This configuration may respond to hardware and software update events; and (iii) emergency maintenance, which refers to unplanned critical maintenance for the security and performance of the Contracting Party’s configuration, without which the standards of the Services would not be met.
“Fee”: means the monthly value and/or payment payable by the Customer and acknowledged by Xertify as consideration for the use of the Software or its related services, in accordance with the specifications described in this instrument.
“Service(s)”: shall mean the actual service to be received by the Customer and made available by Xertify on the Software previously requested and required.
“Support”: shall mean the personnel and/or employees of Xertify who have training and experience in the services that will be available live by telephone, chat or via tickets at the times published on the website www.xertify.com.co, and any additional level of assistance offered by Xertify for the specific services purchased by Customer and described in this instrument.
“System Availability” means the percentage of minutes per month in which the elements essential to the proper delivery of the Service are operational. System Availability excludes, and therefore the following events will not be considered for System Availability accounting:
(i) Scheduled maintenance and repairs of the Service.
(ii) Events constituting extraneous causes.
(iii) Cyber-attacks to the systems required by the Service to operate properly.
(iv) Problems in the operation of the CONTRACTOR’s systems, of local networks or of the provision of Internet services; and
(v) Events in which the CONTRACTOR is unable to provide the Service due to acts or omissions attributable to the CONTRACTOR.
“Information” means all information relating to Xertify’s business activities that is circulated in use of the Software or otherwise created in connection with the performance of this Agreement in connection with Xertify’s business activities.
“Applicable Laws” means, collectively, with respect to any Person and its properties, all statutes, treaties, rules, standards, directives, regulations, bylaws, departmental ordinances, municipal agreements and judicial or administrative authority decisions applicable to such Person.
“Person”: means any natural person, civil or mercantile partnership, autonomous patrimony, joint venture, association, company, corporation, foundation or any other entity with legal personality or any other entity of the government of Colombia or any nation or political subdivision thereof, whether local or foreign, and any agency, authority, regulatory body, court, central bank, or any entity in the exercise of its executive, legislative or judicial powers.
“Service” has the meaning assigned to such term in Section 3 of this Agreement.
“Blockchain Ethereum” means the open source, decentralized platform that enables the creation of peer-to-peer smart contract agreements, based on the blockchain model within the common meaning ascribed thereto, used for the creation of the certificates issued under the framework of the Services as defined below.
“Tax”: means any present or future levy or contribution, charge, commission, fee, tariff, tribute, withholding tax obligation or other of any fiscal nature whatsoever, but excluding interest, penalties, sanctions, increased tax values or any other charge imposed by any competent governmental authority.
“Confidential Information”: means all information which, identified as such, is provided by one Party (the “Reporting Party”) to the other Party (the “Receiving Party”) during the term of the provision of the Service, regardless of its means of disclosure and the kind of medium on which it is contained, including, but not limited to, trade secrets, discoveries, ideas know-how, concepts, knowledge, techniques, specifications, drawings, flow charts, data, computer programs, costs, prices, trade lists, customer and supplier lists, operations manuals, job profiles, salaries, compensation of its personnel and information relating to its operations, critical route, business, products, services, methods, processes, procedures, agreements, designs, drawings, lists of current or potential suppliers, databases, plans, projects and business policies, strategies, technical or economic proposals, quotations or any other information that the Parties disclose even if not labeled as confidential, as well as all types of technical, financial, accounting, corporate, legal, commercial, advertising and other types of information and, in general, all information of industrial or commercial application that any of the Parties keeps as confidential.
“Form A”: Form signed by each Client and Xertify, detailing the commercial conditions of the business relationship which shall be subsidiary to these terms and conditions.
2.0 Service and Scope of Service
The SaaS Service refers to a license for access and use of the software, non-exclusive, non-assignable, and without sub-license permission, through which certificates and digital documents are issued in bulk through the blockchain. The specifications of this Service involve Support services and Maintenance services.
- Support Services.
Xertify will make available to the Client and Users, the support channels that allow to respond to their needs and concerns in the best possible way; this, to respond in reasonable times and as short as possible to the events.
- Other conditions for the provision of the Service and additional services.
Xertify is committed to guaranteeing a monthly availability level of 95%. If the service fails, Xertify guarantees that access to cloud services will be restored within 72 hours, from the identification of the problem, while the applications to be made to correct inconsistencies, if any, will be carried out in a maximum of 8 working days.
In events where the Service is under Maintenance, Xertify will notify, if possible, at least one (1) hour in advance of the need for such repairs or modifications. This maintenance will be performed during off-peak hours, so that the impact on the operation and functionality of the Service is minimized for the Customer and Users.
During the performance of the Service, the Client may have access to content from persons other than Xertify. This content refers to files, audio, data, graphics, illustrations, images, information, video, photographs, text and other content and / or materials, presented in any format, and obtained or derived from third parties sources. Notwithstanding the foregoing, this content shall not, under any circumstances, reflect the technological development of third parties outside Xertify, unless Xertify’s suppliers so state.
The term of the Service shall be indefinite and shall correspond to the time that Client uses Xertify’s services, unless the parties agree to a provision to the contrary.
Xertify has the right to temporarily suspend the Services if the actions or omissions of Client or Client’s Designated Users pose a threat to compliance with the provisions herein, or if payment has not been made in accordance with the provisions of clause eleven (11) of these terms and conditions. However, if the causes giving rise to the threats to the provisions hereof are cured or removed, Xertify shall resume the Services within 8 (eight) business days thereafter.
If either Party breaches any of the obligations and/or performs any of the prohibitions set forth in this instrument and fails to remedy such circumstances within three (3) days after notice of the occurrence thereof, the affected Party may terminate the provision of the Service, without waiving any remedies that are legally available, adequate, and appropriate.
- Software use license.
During the term of the provision of the Service, and unless otherwise provided, Client shall have an unlimited, non-exclusive, non-assignable and non-monetary right of use to access and use Xertify’s SaaS Services for its internal operations and management. By virtue of this License of Use, the Users designated by the Client, and the Client, may use the Services for a purpose not different from the aforementioned, provided which this is done under the responsibility and control of the Client.
Likewise, the Parties agree that the license to use the Services as set forth in this Section may also include access to and use of any additional functionality made available by Xertify or its third-party providers.
By accepting these terms and conditions, Client unequivocally represents that this license of use does not involve additional or related services that are not described in this document or for a time or period that exceeds that requested in the “Form A”, contract or any other document subscribed in lieu thereof. Therefore, upon termination of the term of the provision of the Services, Xertify’s provision of the Services will terminate.
- Prior Intellectual Property Rights.
Each Party shall be the exclusive owner of all intellectual property rights of which it is the rightful owner or licensee. Therefore, none of the Parties grants, implicitly or expressly, any right of ownership or exploitation in relation to any intellectual property rights of the Parties.
Therefore, all and any intellectual property rights that are used in any way by the Parties for the development of the provision of the Service or the Product, shall remain the property of the Party to which such Intellectual Property Rights belong, and their use for the purposes of the use and provision of the Service does not confer, expressly or implicitly, any right other than those set forth in this document.
The Client declares to understand that the license of use is subject to the following restrictions, namely:
- The user licenses may not be shared or used by more than one individual User, unless there is a reassignment of user by withdrawal or temporary absence of the User initially assigned and designated by the Customer, in which case the original User may not have access to the same license, and in return must use a new one or wait for the reassignment of the same.
- Customer may not license, sell, rent, lease, transmit, assign, distribute, display, host, subcontract, disclose or otherwise commercially exploit or offer or provide the Service and/or such other products and/or services that, in Xertify’s full and free discretion, Xertify chooses to provide; on terms other than those permitted by this instrument.
- Customer may not modify, create derivative works of, or disassemble, decompile, or reverse engineer any part of the Service, or access or use the Service for the purpose of creating, supporting and/or assisting a third Party in the construction and/or support of products or services that are in competition with Xertify and its Services, or that have a similar or identical purpose.
- Except as expressly provided herein, no part of the Service may be copied, reproduced, distributed, distributed, published, downloaded, displayed, edited, or transmitted, in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording and/or otherwise.
- The Client undertakes to prevent and avoid, by any means it deems reasonable, that unauthorized third parties have access to its Services and/or products and/or services that it is free to provide and/or grant.
The fee for the service provided by Xertify to Clients shall be as set forth in “Form A”.
Xertify will send a sales invoice to the Client for the Services rendered monthly within 5 (five) business days after the end of the effective month of the provision of the Service. For its part, Client unequivocally understands and agrees that the fees payable to Xertify will be due and payable within thirty (30) calendar days of Xertify’s submission of the applicable sales invoice.
12.0 Warranties, Disclaimers and Remedies.
Xertify warrants that it will provide the Services described herein in all material respects as described in the scope set forth herein. If the Services provided are not provided in accordance with the foregoing warranty, Client shall notify Xertify in writing of such failure, describing the deficiency in the Services.
Xertify guarantees the correct operation of its platform in the normal terms of the service it provides and, in the functionalities, according to clause 2 of this instrument. The warranty is effective only and exclusively when the Client provides the correct and due use of the system, takes advantage of the functionalities for the purposes for which they were created and respects the policies and restrictions of use related in this instrument.
Therefore, the service is provided to the Client with a minimum guarantee of service quality. In that sense, Xertify assumes its role to ensure an excellent service and a product that seeks to meet the expectations of the Client, based on the existing characteristics at the time of the request of the Service and those derived from the deliverables and scopes of the same.
Client acknowledges that Xertify does not control the transmission of data through communication systems, including the Internet, analog or IP telephony, and that the service may be subject to limitations, delays and other problems inherent in the use of such communication systems. Xertify shall not be liable for any delays, delivery failures or other damages resulting from such problems. Notwithstanding the foregoing, Xertify is obliged to make the necessary support and advice to the Client to ensure the level of service and that it can have the necessary transmission conditions for the proper operation of the contracted service, that is, only in the variables for the proper functioning, good practices, and good use of technological resources of its platform.
- Limitation of liability.
In no event shall Xertify be liable for indirect, punitive, special, exemplary, incidental, consequential, or consequential damages, or for any damages for loss of data, revenue, profits, or other variables with respect to the use of its platform, for misuse of the solution or for attacks, sabotage or other unethical practices or unlawful circumstances, force majeure or acts of God. Notwithstanding the foregoing and being Xertify an expert in the Services it provides, Xertify will endeavor to have the necessary security measures in place to ensure the protection of the Client’s data and information. In any case, the liability of Xertify, in case of persistence, whether contractual or extra-contractual, of any kind or nature, will be limited to the amount received in the provision of the Services.
The Parties undertake to use the Confidential Information only for the performance of the service regulated by this instrument. The Parties undertake to take all reasonable measures to maintain the confidentiality of the Confidential Information and to avoid its disclosure to third parties, or to avoid the consummation of any facts that in any way may cause the Confidential Information to become public knowledge. The Parties shall not disclose Confidential Information to any person other than any of their respective shareholders, agents, advisors, employers, contractors, or personnel with whom they need to discuss the content of such Confidential Information for the performance of the Service. Both parties undertake to instruct their officers, personnel, including subcontracted personnel, employees, agents, representatives and/or any person who, for good cause, is or may be related to them and the information subject hereof, regarding the content and scope of the obligation contained herein, to keep secret and maintain the confidentiality of the information, each party being directly responsible for the payment of damages caused by the violations incurred by the aforementioned persons to the aforementioned obligation. Likewise, the parties undertake to enter into the respective Confidentiality Agreements with each of the aforementioned persons in order to ensure compliance with the obligation contained in this clause.
The parties acknowledge and agree that the obligation to keep confidential the information received from the other, implies that they shall not disclose, in whole or in part, by any means, the content of the data and elements that make up the “Confidential Information”, to any person or entity, national or foreign, directly or indirectly, except in the case of the personnel, including subcontractors, if any, as well as their employees, representatives and/or any other person that for justified cause, is linked to the execution of the services due to the contractual or commercial relationship existing between them, and to the data and information in question, being jointly and severally liable for the payment of the damages caused by the violation of the obligation contained in this clause. For effects of the stipulated in the present clause, it is considered that there has been a breach of the obligation to keep in secret and confidentiality, independently of the use that has been given to the “Confidential Information”, or of the benefit that, in its case, has been obtained, by the simple fact that the data and information in question, have been delivered, disclosed or provided, in whole or in part, in all or in part, disclosed or provided, in whole or in part, by any means, to any person or entity, national or foreign, directly or indirectly by any of the parties, their officers, personnel, including subcontracted personnel, employees, agents, representatives and/or any person who, for any reason, is linked to them and to the data and information in question.
14.1 Information not considered as Confidential Information. Confidential Information shall not be considered as such, under this instrument, when: (i) it is or becomes publicly known by means of an act that does not constitute a breach of these terms and conditions, or breach of a confidentiality obligation of the Reporting Party; (ii) when the Receiving Party has independently obtained it from third parties who were entitled to disclose such Confidential Information; and (iii) when it has been independently developed by the Receiving Party without making use of the Confidential Information.
14.2 Events that do not constitute a breach of the confidentiality obligation. No breach of the confidentiality obligation set forth in subsection (a) above shall be deemed to exist when the Confidential Information: (a) is disclosed to governmental authorities in compliance with Applicable Laws; (b) is disclosed upon the valid request of any competent authority on the occasion of a valid judicial or administrative proceeding, in which case the Receiving Party shall immediately give written notice to the Reporting Party of such request in order for the latter to exercise all measures it deems appropriate in opposition to the request made by virtue of such judicial or administrative proceeding; or (c) is disclosed with prior written authorization from the Reporting Party.
14.3 Ownership of Confidential Information. The Parties agree that the Confidential Information is and shall remain the property of the Reporting Party. The Parties further agree that acceptance of these terms and conditions does not grant, expressly or by implication, any intellectual or proprietary rights to the Confidential Information, including, but not limited to, licenses to use the Confidential Information and trade secrets.
14.4 Destruction or Return of Confidential Information. The parties hereby acknowledge and agree that each of them has the right to request, at any time, that the Confidential Information be returned or destroyed, as well as all information, of any nature, that one has prepared for the other, including summaries, worksheets, extracts, analyses, reports, deliverables, and copies thereof, as well as all supporting media on which it is contained. To verify the foregoing, each party may request at any time to the other, to certify in writing or by any other means, that the Confidential Information has been destroyed in the terms agreed by them. Independently of the foregoing, the parties are obliged to return to the other all the Confidential Information and that which has been delivered for the execution of the instrument, which is still in their possession, upon written request of the interested party.
14.5 Extension of the confidentiality obligation. The obligation of confidentiality in relation to the Confidential Information disclosed by the Parties during the performance of the Service shall be extended after the termination of the performance of the Service, until such time as the Confidential Information ceases to be or may cease to be considered as Confidential Information, without prejudice to the indemnities that the improper disclosure of such information may entail for any of the Parties.
15.0 Personal Data. With the acceptance of these terms and conditions, the Client acknowledges that the treatment of personal data to which Xertify has access in the development of the provision of the Service, shall be governed by its Policy of Treatment of Personal Data, which is located at the following URL: ___.
16.0 Applicable Law and Jurisdiction. These terms and conditions, and all its rights, obligations, conditions, and terms shall be construed, governed, and enforced in accordance with the applicable laws of the Republic of Colombia. In the same sense, the resolution of any conflict or matter related to this instrument shall be subject to the jurisdiction of the competent courts of the Republic of Colombia, waiving any other jurisdiction that may be competent.