Earny Terms & Conditions

1. Scope

1.1 These terms and conditions (these "Terms") govern the contractual relationship between Earny SA, a company limited by shares organized under the laws of Switzerland and having its registered office in Morges, Switzerland (the "Provider") and its customers (each, a "Customer") in connection with the provision by the Provider, and the use by the Customer, of the payroll management platform available on www.earny.ch and any affiliated sites, digital services, or applications on which a link to these Terms appears (together the "Platform") (the "Agreement").

1.2 By registering on the Platform, the Customer unconditionally and fully accepts these Terms, as updated from time to time in accordance with section 1.3 below. Therefore, if the Customer does not agree to these Terms, the Customer shall not visit, use, or access the Platform.

1.3 The Provider reserves the right to make at any time subsequent changes or additions to these Terms (by notifying the Customer via the registered email address on the Platform), which shall become part of the Agreement within 14 days of becoming aware of them. The current version of these Terms is published on the Provider's website (www.earny.ch).

1.4 These Terms use the neutral gender for convenience only and words importing that gender shall apply equally to all genders. Likewise, the singular form includes the plural form, unless the context indicates otherwise.

2. License terms

2.1 License
(a) For the duration of the Agreement, the Provider grants the Customer a limited, revocable, non-perpetual, non-exclusive, non-transferable, and non-sublicensable right to use the Platform for the Customer's own business purposes (the "License"), in accordance with the applicable Package (as defined in section 3 below).
(b) Unless explicitly authorized under the applicable Package (e.g., for accountants using the Platform for their own clients), the Customer shall not make the Platform available to, or use the Platform on behalf of, any third parties without the Provider's prior written consent.

2.2 Third Parties' SoftwareDepending on the applicable Package, the Customer may be provided with an interface ("API") for communication with third-party software. The Provider sets and enforces limits on the Customer's use of the APIs in its sole discretion.

3. Packages

3.1 When registering on the Platform, the Customer may choose between several packages of services (each, a Package). The services provided by the Provider, and the Fees due, for each Package are described on the Provider's website (www.earny.ch).

3.2 The Provider may, at any time and in its sole discretion, update, modify, delete, add, or change in any other manner the Packages, including (but not limited to): the name of the Packages, the amounts of Packages available, the quantity, standard or costs of the services provided in a Package, or the Fees due for a Package. In such cases, section 1.3 above shall apply mutatis mutandis.

3.3 Also, the Provider may provide the Customer with special offers such as a limited demo free of charge, in its sole discretion, only for marketing purposes (a Limited Demo). The Customer using a Limited Demo is bound by these Terms, to the exclusion of the payment of the Fees.

4. Customer Data, Data Hosting, Data Backup and Support

4.1 The Customer is solely responsible for the accuracy and completeness of the data and information provided by the Customer on the Platform (the "Customer Data"). Moreover, the Customer represents and warrants to the Provider that it is entitled, and has given all required notices, to provide the Provider with the Customer Data.

4.2 The Platform will make recommendations to the Customer based on the Customer Data. The Customer has the option to accept or reject these recommendations and is responsible to verify the accuracy of these recommendations. Should the data provided by the Customer be inaccurate or incomplete, the recommendations provided by the Platform will also be inaccurate or incomplete. The Provider cannot be held responsible for these recommendations as the recommendations are based on the data provided by the Customer.

4.3 All the Customer Data is hosted in Switzerland.

4.4 The Provider shall ensure that the Customer can access the Customer Data via internet to the extent technically possible.

4.5 The storage space made available to the Customer on the Platform (the "Storage Space") is for the benefit of the Customer only. The Customer shall not allow any third-party to access or use the Storage Space, whether in whole or in part, in return for payment or free of charge. The Customer undertakes not to store any content on the Storage Space that violates any applicable law and/or any agreement with third parties.

4.6 The Provider shall take all reasonable measures within the scope of technical possibilities to safeguard the Platform and the Customer Data against data loss and to prevent unauthorized third-party access to the Customer Data, back up the data on a regular basis, monitor for viruses, and install firewalls. The Provider shall also provide the Customer with the support as reasonably required for the resolution of problems arising in connection with the day-to-day use of the Platform.

4.7 In case of loss or corruption of the Customer Data, the Provider shall provide reasonable support to the Customer for the restoration of that data.

5. Customer Obligations

5.1 The Customer shall:
- comply with these Terms;
- pay the Fees (as defined in section 5 below);
- not circumventor or attempt to circumvent any security protection of the Platform;
- not use the Platform in ways which are unlawful or fraudulent, or have any unlawful or fraudulent purpose or effect;
- not upload anything to the Platform which contains viruses, Trojan horses, worms, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any website, computer software or hardware;
- ensure that solely authorized users can access the Platform with their assigned credentials. The Customer shall immediately inform the Provider of any unauthorized use of the credentials;
- defend, indemnify and hold the Provider harmless against any and all claims, liability, loss, costs, penalties, and damages, including reasonable attorney fees, arising out of the breach by the Customer of any of its obligations.

5.2 The Customer acknowledges that failure to comply with its duty of cooperation may result in malfunction of the Platform and does not entitle the Customer to a refund or a termination right.

6. Fees and Payment

6.1 The grant of the License to the Customer is subject to payment of the fees agreed between the Provider and the Customer (the "Fees"), which are non-cancellable and non-refundable. All Fees quoted, unless expressly stated otherwise, are exclusive of any sales, value-added or similar taxes. The Customer hereby expressly waives any right to set off, retain, deduct, counter-claim and/or withhold any payments due to the Provider under these Terms, the Agreement and/or otherwise in connection with the Platform.

6.2 Unless indicated otherwise, the Fees are calculated on a pay-per use model and the Fees either invoiced on a monthly basis, directly debited to the Customer's credit card or paid through another method as set out on the Platform. In case of invoice, Fees are payable within thirty (30) days of the invoice date, unless otherwise indicated. Credit card payments are charged monthly after the Customer runs payroll. Payments more than thirty (30) days late are subject to an interest of eight percent (8%) per year. After notice of non-payment and thirty (30) days to cure, non-payment can result in the suspension or termination of the Customer's account on the Platform. The Provider may in addition charge effective and reasonable debt collection fees to the Customer.

7. Exclusion of Liability

7.1 The Platform, together with all content, data, recommendations, information and materials contained therein, is provided "as is" and "as available", without any warranties or representations of any kind. In particular (without limiting the generality of the foregoing), the Provider does not verify, and shall not assume any liability in connection with, any calculations, data output or any other information accessible through the Platform and it is the Customer's sole responsibility to verify any such information.

7.2 Subject to section 6.4, the Provider shall not be liable to the Customer, irrespective of the legal grounds (whether for breach of contract, for tort or under the law, including in case of negligence), whether for its own acts or omissions or for the acts or omissions of its Representatives (as defined in section 6.3 below) for any loss, or damage of any kind whatsoever arising out of, or in connection with, these Terms, the Agreement and/or the Platform, including any direct, indirect or consequential loss or damage. In particular (without limiting the generality of the foregoing), the Provider shall not be liable to the Customer for any: (i) loss of profit, revenue, anticipated savings or opportunity; (ii) contractual penalties or other liquidated damages payable by the Customer to third parties; (iii) loss, destruction, alteration or corruption of data; and/or (iv) loss of goodwill or reputation.

7.3 The personal liability of the representatives, staff, employees, workers and agents (auxiliaires; Hilfspersonen) of the Provider (the "Representatives") arising out of, or in connection with, these Terms, the Agreement and/or the Platform shall be excluded to the same extent as provided in section 6.2 above.

7.4 Notwithstanding anything to the contrary, the Provider's liability shall not be excluded or limited: (i) for any damage caused intentionally or through gross negligence; (ii) for any damage caused by defects of the Platform fraudulently concealed from the Customer; and/or (iii) to the extent that any exclusion or limitation of liability would otherwise not be permitted by applicable mandatory law.

7.5 Any claim by the Customer arising out of, or in connection with, these Terms, the Agreement and/or the Platform shall (i) be time-barred upon the expiration of a period of twelve (12) months from the occurrence of the harmful event and (ii) limited to the amount of the Fees paid by the Customer during the twelve (12) months prior to the occurrence of the harmful event.

7.6 For loss or corruption of the Customer Data, the Provider's liability will be limited to taking reasonable steps to try and recover that data from available backups.

7.7 Neither party shall be liable for breach of these Terms (other than payment obligations) caused by circumstances beyond its reasonable control (force majeure).

8. Term, Termination and Suspension

8.1 These Terms become effective upon registration by the Customer on the Platform and remain in full force and effect until the Agreement is terminated by either Party by giving a one month’s written notice for the end of a month in accordance with section 11.1 of these Terms.

8.2 Either party may terminate the Agreement for Cause at any time with immediate effect by giving written notice to the other party; provided that "Cause" shall mean (i) the material breach of these Terms by the other party, (ii) the bankruptcy, the insolvency, the liquidation or the official administration of the other party, or (iii) any other ground that renders (or is reasonably likely to render) the continuation of the Agreement unbearable for the terminating party.

8.3 The Provider may suspend access to the Platform or the Customer's account based upon the Provider's reasonable determination of the occurrence, or potential for occurrence of, any use of the Platform in breach of these Terms, illegal or wrongful activity, fraudulent use or attempted fraudulent activity by the Customer. In case of a suspension, the Customer remains liable for all charges and Fees incurred during the suspension period.

9. Intellectual Property Rights

All intellectual property rights in and to the Platform shall remain the sole property of the Provider. In particular, the Provider retains all rights to the Platform other than those expressly granted to the Customer under the Agreement. This includes (without limitation) all ownership rights, copyrights, design rights, patent rights, trademark and trade name rights and any other protective or proprietary rights relating to the Platform, distribution rights, processing rights and any other similar rights.

10. Confidentiality Obligation

10.1 The Provider undertakes to maintain confidentiality about all confidential information belonging to the Customer, in particular the Customer's trade secrets, of which it becomes aware in connection with the Agreement, and undertakes not to disclose this information to any third party, unless the disclosure of such information is required by applicable law or a competent authority.

10.2 Notwithstanding anything to the contrary, the confidentiality obligation set forth in section 9.1 shall be excluded for all data exchanged between the Provider and its affiliates; provided, however, that such affiliates shall maintain the same level of confidentiality and comply with the applicable data protection law. The Customer expressly gives its consent to such data transfer.

10.3 The Customer grants the Provider the right to name the Customer publicly as a reference and to use general information about the agreed contract in an appropriate manner for marketing and sales purposes.

11. Privacy Policy

11.1 These Terms incorporate the Provider's privacy policy ("Privacy Policy"), which can be found on the Provider's website (www.earny.ch), in its currently valid version. The Customer expressly accepts the Privacy Policy.

11.2 The Provider will process any personal data provided by the Customer as necessary for the purposes of the Customer' use of the Platform and in line with its Privacy Policy.

12. Miscellaneous

12.1 Notices
Notices sent via email or physical mail are deemed to be written notices for the purposes of these Terms. All notices made or given must be in the English or French language. The Provider will send notices to the email address provided by the Customer. It is the Customer's responsibility to keep the email address associated with its account current.Any notices to the Provider shall be sent to:

Earny SA
Rue de Lausanne 35a
1110 Morges
Switzerland

12.2 Severability
Should any provision of these Terms be held illegal, invalid or otherwise unenforceable (in whole or in part) by any competent arbitral tribunal, court, governmental or administrative body having jurisdiction, the other provisions of these Terms shall remain in full force and effect between the parties to the fullest extent possible.

12.3 Assignment
The Provider may assign or transfer its rights and/or obligations under these Terms and/or the Agreement, in whole or in part, without the Customer's prior consent, to any person or entity at any time. The Customer may not assign or delegate any rights or obligations under the Agreement without the Provider's prior written consent, and any unauthorized assignment and delegation by the Customer is void.

12.4 Precedence
In the event of any inconsistency between the French version of these Terms and a version in another language, the French version shall prevail (in the event that these Terms are available in several languages).

13. Governing Law & Jurisdiction

13.1 Governing Law
The parties agree that all legal relationships arising from these Terms, the Agreement and/or otherwise in connection with the Platform shall be exclusively governed by material Swiss law under exclusion of any conflict of law provisions that would cause the application of the laws of any other jurisdiction. The UN Convention on Contracts for the International Sale of Goods (CISG; Vienna Convention) and any successor convention or legislation is expressly excluded.

13.2 Jurisdiction
All disputes, controversies or claims arising out of or in connection with these Terms, the Agreement and/or the Platform shall be subject to the exclusive jurisdiction of the competent courts of Lausanne, Switzerland, subject to appeal as provided by the law.

Mise à jour : April 2024