Fairpicture AG General Terms and Conditions for Consent Management Tools
Conclusion of Agreement
1.1
The agreement between Fairpicture and the Client is concluded at the moment the Client registers for the service or if no such registration has taken place, at the latest when the Client starts using the service; or as otherwise agreed in a separate agreement.
1.2
The Client confirms acceptance of these Tool GTC by registering for or at latest by using the services.
1.3
If the natural person registering for or using the service (hereinafter referred to as ”User”) is acting on behalf of a legal entity (e.g., a company or organization)and is associated with the Client, the User confirms that:
a) they have full legal authority to bind the Client to the agreement; and
b) they have read, understood and agree to the Tool GTC on behalf of the Client.
1.4
If the User is acting as an individual, the User confirms that they:
a) are at least 18 years old; or if they are younger than 18 years old, they have obtained the legally valid consent of their legal representatives to conclude the agreement; and
b) have read, understood, and agree to be bound by the Tool GTC
2. Services
2.1 FairConsent App
Fairpicture provides a mobile app, designed for professionals (e.g.,photographers, marketers, healthcare providers) to collect declarations of consent from individuals whose personal data—particularly in the form images, videos, or audio recordings—is processed (hereinafter referred to as"FairConsent App"). The FairConsent App enables the Client to document consents, including required information such as purpose, legal basis, and retention period, in a manner that aligns with the requirements of the GDPR.
2.2 FairConsent Management Platform
Fairpicture offers a platform accessible via Fairpicture’s website as a software-as-a-service solution (SaaS), which enables the Client to manage, oversee, and organize consents collected through the FairConsent App (hereinafter referred to as "FairConsent Management Platform"). The FairConsent Management Platform provides functionalities such as license management, user access control,centralized administration of consents, and reporting tools for compliance and internal documentation.
2.3 Monitoring
Fairpicture may monitor the Client’s use of the services to ensure quality,security and compliance with the agreement and these Tool GTC, including by employing technical measures. The Client will not interfere with such monitoring.Fairpicture may audit (or appoint an independent auditor subject to appropriate/confidentiality obligations to audit) upon reasonable notice the Client’s systems and records to confirm compliance with these Tool GTC. Fairpicture will limit the audits to a maximum of one audit per year, provided that there is no reasonable indication of irregularities. Fairpicture will comply with the applicable data protection laws while performing the audits. The Client will provide Fairpicture with any documentation that Fairpicture reasonably requests to demonstrate theClient’s compliance with these Tool GTC.
2.4 Updates
Fairpicture may, in its sole discretion, at any time, with or without notice, and without liability to the Client, make updates to the services, and change or discontinue the availability of certain functionalities of the service.
2.5 Availability, Maintenance and Support
The availability and maintenance of the services are provided on a best-effort basis. Support is provided on best-effort basis.
3. Fees and Payment
3.1 FairConsent App
The FairConsent App is available for the fees as disclosed prior to purchase in theFairConsent App (e.g. subscription plans).
Certain advanced features or additional storage capacity may incur additional fees, which will be disclosed prior to purchase.
3.2 FairConsent Management Platform
The FairConsent Management Platform is offered for the fees as disclosed byFairpicture to the Client prior to purchase.
Additional features or extended storage may result in additional fees, which will be disclosed prior to purchase.
3.3 Payment Terms
Fees are payable in advance, with payment terms provided during the subscription process.
4. Data Protection and Privacy
4.1 Roles and Responsibilities under the GDPR
Fairpicture processes personal data on behalf of the Client and acts as a dataprocessor in accordance with Art. 4 para 8 GDPR. The Client is the data controller within the meaning of Art. 4 para 7 GDPR.
4.2 GDPR-Compliant Service Design
The services offered by Fairpicture— both the FairConsent App and theFairConsent Management Platform—are designed to support the lawful collection, management, and storage of consents and other personal data in accordance with the GDPR. However, the Client is solely responsible for ensuring that their use of the services complies with the GDPR as well as any other applicable data protection or privacy laws.Fairpicture ensures compliance of the service design with the requirements of the GDPR but does not assume responsibility for meeting additional or divergent requirements under other local or national data protection laws. The Client is responsible for identifying and fulfilling such obligations.
4.3 Client Obligations
The Client confirms that:
a) they are authorized to process the personal data entered into the services;
b) any personal data shared with Fairpicture through the services is either necessary for the initiation of a consent request or has been lawfully obtained prior to submission, and the Client is responsible for obtaining valid consent before any further processing or sharing occurs;
c) all personal data provided is – to the best knowledge of the Client - accurate,complete, and up to date;
d) no data shared through the services infringes upon third-party rights or contains unlawful, harmful, or otherwise illegal content.
4.4 Data Retention and Technical Support
Fairpicture provides technical features and functionalities to support the Client in managing data subject rights and in ensuring that personal data is archived or deleted in accordance with applicable retention periods. Personal data is only retained for as long as necessary to fulfil the processing purpose or to comply with legal obligations.
4.5 Withdrawal of Consent
Data subjects (e.g. Depicted Persons) have the right to withdraw their consent at any time. In such cases, the Client is obliged to:
a) immediately cease any further use of the affected personal data within the services;
b) remove the data from any public or third-party environments where reasonably possible;
c) inform Fairpicture without undue delay so that appropriate technical organizational measures can be taken by Fairpicture to reflect the withdrawal within the service environment.
4.6 Data Processing Agreement
The data processing relationship between Fairpicture and the Client is governed by a data processing agreement (hereinafter referred to as "DPA"), which forms an integral part of the contractual relationship between the parties and these Tool GTC (see Appendix).
5. Intellectual Property
5.1 Ownership of Intellectual Property
All IP Rights, including inventions, patents, patent applications, copyrights, know-how, trade secrets, trademarks, and any other intellectual and industrial property rights existing prior to the agreement between Fairpicture and the Client or created outside the scope of the services provided by Fairpicture shall remain the property of the party from which they originated.
5.2 Ownership of Fairpicture's Intellectual Property
Fairpicture retains ownership of all intellectual property created, developed, or provided during the course of providing the services, including, but not limited to, all IP Rights (especially copyrights) in the source code of the FairConsent App, FairConsent Management Platform, documentation, other source code,algorithms, designs, trademarks, and any related materials. This includes any improvements, modifications, or derivative works based on these.
5.3 License to Use Fairpicture's Intellectual Property
The Client is granted a non-exclusive, non-transferable, revocable license to useFairpicture’s IP Rights solely for the purpose of using the services in accordance with these Tool GTC. This license is subject to the Client’s compliance with these Tool GTC and does not extend to any right to sublicense, transfer, or otherwise commercially exploit the IP Rights without Fairpicture's prior written consent.
5.4 Data Ownership
The Client retains ownership of all data entered into the services, including any personal data collected and/or managed via the FairConsent App and/or theFairConsent Management Platform. The Client grants Fairpicture a non-exclusive,irrevocable, worldwide, transferable, sublicensable license, without charge, to copy, store, transmit, edit, and process the data to the extent necessary forFairpicture to fulfill its obligations under the agreement between Fairpicture and the Client and these Tool GTC.
5.5 Use of Feedback
If the Client provides any feedback, suggestions, or recommendations regarding the services or other products of Fairpicture, the Client agrees that Fairpicture may use such feedback freely and without restriction for any purpose, including improving the services, developing new products, or advancing its business operations.
6. Further Obligations of the Client
6.1 Access Information
The Client provides all reasonably necessary details and information requested byFairpicture for accessing the FairConsent App and FairConsent Management Platform.
6.2 Users
Each user of a Client is assigned a unique login credentials that grant the users access to the FairConsent App and/or FairConsent Management Platform. The Client is responsible for all users assigned to its account and has to instruct them to comply with the agreement with Fairpicture and especially these Tool GTC. The Client is fully liable towards Fairpicture for the behavior of all its users in connection with the agreement with Fairpicture and especially these Tool GTC.
6.3 Credentials
The Client will keep its credentials and all login information related to the account secure. The Client will not share its login credentials with any third party. If the Client suspects any unauthorized access or security breach, they must immediately notify Fairpicture of the incident.
6.4 Lawful use of Service
The Client must only use the services in a manner that is compatible with applicable laws and regulations. The Client must use the FairConsent App and/or FairConsent Management Platform in a manner that is lawful, ethical, and in compliance with these Tool GTC. The Client must not use the services for any illegal or unauthorized purposes.The Client’s use of the services must not infringe or violate any rights of third parties (including but not limited to intellectual property rights of third parties). The Client must not upload or store any illegal, harmful or otherwise infringing files on or via the FairConsent App and/or FairConsent Management Platform.The Client must not engage in any activities that could harm the functionality or security of the FairConsent App and/or FairConsent Management Platform or that could otherwise violate the agreement with Fairpicture or these Tool GTC.
6.5 Notification
The Client shall, upon comping aware, notify Fairpicture promptly of any suspected or alleged violation of the Tool GTC and shall cooperate with Fairpicture with respect to investigation of any suspected or alleged violation of the Tool GTC.
6.6 Further Obligations
In connection with the use of the FairConsent App and/or FairConsentManagement Platform, the Client will not, and will not authorize or encourage any third party to, directly or indirectly:
a) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the services; and
b) distribute or resell the services or any portion of the services, or attempt to do any of the foregoing; and
c) remove any proprietary notices or confidentiality notices from the services or any portion of it; and
d) modify, translate, reverse engineer, disassemble, reconstruct, decompile, or create derivative works of the services; and
e) use or access the services or monitor the availability, performance or functionality of the services, or for any similar benchmarking purposes; and
f) use the services in a manner likely to cause a material degradation in the services provided by Fairpicture to its other customers; and
g) engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner the servers, security, networks, data,applications, or other properties or services of Fairpicture; and
h) conduct any load testing or penetration testing on the services withoutFairpicture's prior written consent; and
i) bypass or circumvent any service technical restrictions or security measures,including limitations on calls to the services; and
j) distribute viruses, malware, spyware, adware, or other harmful programs through the services; and
k) falsify or alter any unique identifier assigned to the Client (e.g. credentials);and
l) develop another service or application whose primary purpose is to migrate customers off the services.
7. Liability and Indemnification
Liability and indemnification shall be governed by Section 9.5 of these Tool GTC. In addition, the following Service Part-specific provisions apply:
7.1 No warranties
Fairpicture warrants that the services are designed in accordance with the requirements of the GDPR. Beyond this, the services are provided without any further warranty of any kind, express or implied, including but not limited to any warranty of merchantability, fitness for a particular purpose, security, confidentiality, or non-infringement.
7.2 Service Availability
Fairpicture endeavors to provide continuous and reliable access to theFairConsent App and the FairConsent Management Platform. However, Fairpicture does not warrant uninterrupted availability or error-free operation. Temporary service interruptions or limitations may occur due to maintenance, updates, or technical issues.
7.3 Limitation of Liability
Fairpicture is not liable for any damages of Clients caused by
a) interruptions of the services;
b) loss, manipulation, destruction, damage or recovery of data (except if such damage is caused by Fairpicture’s non-compliance with GDPR).
7.4 Supportive Nature of Services
The FairConsent App and the FairConsent Management Platform are tools designed to assist Clients in the collection and management of consent ofDepicted Persons in compliance with GDPR. However, the use of the tools does not constitute a guarantee of Client’s legal compliance. Clients remain solely responsible for ensuring that their behaviour complies with applicable data protection laws and requirements.
7.5 Data Entry and Compliance
Fairpicture is not liable for any non-compliance, penalties, damages, or claims resulting from inaccurate, incomplete, or unlawful information entered by Clients into the FairConsent App or the FairConsent Management Platform, or from their failure to configure the services appropriately.
7.6 Data Security and Breach Notification
Fairpicture implements appropriate technical and organizational measures to protect personal data processed through the FairConsent App or the FairConsentManagement Platform. However, Fairpicture is not liable for damages arising from third-party attacks, data breaches, or unauthorized access unless such incidents are due to Fairpicture's non-compliance with GDPR, gross negligence or willful misconduct.
Clients are obliged to notify Fairpicture immediately upon becoming aware of any actual or suspected data breaches affecting the services.
7.7 Data Loss
Save for where in accordance with GDPR, Fairpicture is not obliged to provide theClient any copies of data in case the Client loses its data.
8. Termination
8.1 Termination by Clients
Clients may terminate the agreement in accordance with the agreed subscription terms and according to the termination process provided within the respective service. If no subscription term has been agreed, the Client may terminate the agreement with 30 days prior notice.
Client may extraordinarily terminate the agreement if Fairpicture materially breaches these Tool GTC upon giving Fairpicture a written notice and at least 20 days to remedy the breach.
8.2 Suspension and Termination by Fairpicture
Fairpicture may terminate the agreement in accordance with the agreed subscription terms. If no subscription term has been agreed, Fairpicture may terminate the agreement with 30 days prior notice.
Fairpicture may suspend or terminate the Client’s access to the FairConsent App and/or the FairConsent Management Platform with immediate effect if the Client materially breaches these Tool GTC, including but not limited to non-payment of fees, misuse of the services, or violation of applicable laws.
8.3 Effect of Termination
Upon termination of the subscription for any reason:
a) The Client’s right to access and use the affected services shall remain fully in effect until the end of the contractual term;
b) After expiry of the contractual term, Fairpicture will permanently delete or anonymize all user data, unless otherwise required by law or agreed in the DPA.
9. General Provisions
9.1 Severability clause
Should individual provisions or parts of these Tool GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision. The same shall apply in the event that the Tool GTC contains any omissions or gaps.
9.2 Amendments
Fairpicture may amend or change these Tool GTC. Amended Tool GTC have to be announced by Fairpicture to the Client with at least 30 days advanced notice period. They come into force on the date indicated by Fairpicture (hereinafter referred to as "Amendment Starting Date") if not explicitly rejected by the Client within 14 days after communication of Fairpicture. If the Client rejects the amended Tool GTC, the Client may extraordinarily terminate the agreement with Fairpicture by the Amendment Starting Date. With regard to the effects of termination, the conditions of the relevant Service Part shall apply.
9.3 Taxes
9.3.1
If not explicitly mentioned otherwise, all fees are exclusive of taxes. To the extent taxes are applicable (e.g., VAT), Fairpicture will charge the Client such taxes and the Client will pay such taxes on top of the Fees.
9.3.2
If the Client is required to deduct or withhold tax from its payment, then the Client will pay such additional amount and will ensure that the net amount Fairpicture receives and retains equals the full amount which Fairpicture would have received and retained had the deduction or withholding not been required.
9.4 Payment
9.4.1
The Client will make payment through such means as Fairpicture communicates to the Client (including by wire transfer, credit card payment, or other means of payment).
9.4.2
If not agreed otherwise, payments are due 30 calendar days after receipt of an invoice.
9.4.3
If the Client fails to timely satisfy its payment obligations, the Client shall pay additional five percent per month on the outstanding amount.
9.4.4
Except as expressly set forth herein or in an applicable Offer or agreement between Fairpicture and the Client (e.g. “money back guarantee”), all payment obligations are non-cancellable and all amounts paid are non-refundable (except where a) services have not been performed by Fairpicture yet and b) the agreement is lawfully terminated by the Client due to a material breach of the Tool GTC by Fairpicture).
9.5 Liability, Indemnification and Force Majeure
9.5.1
Fairpicture shall only be liable for direct damages caused by non-compliance with GDPR, gross negligence or willful misconduct. Any liability for indirect, incidental or consequential damages, including loss of profit or data, is excluded to the extent permitted by applicable law.
9.5.2
Fairpicture shall not be liable for the actions or omissions of auxiliary persons, unless mandatory law requires otherwise.
9.5.3
To the extent permitted by applicable law, Fairpicture shall not be liable for damages resulting from interruptions, errors or delays in the performance of its services caused by force majeure. Force majeure includes, but is not limited to, natural disasters, epidemics, pandemics, war, riots, cyberattacks, and acts of public authorities.
9.5.4
To the extent permitted by applicable law, the Client will indemnify, hold harmless and defend at its expense,Fairpicture from any and all third-party claims, actions, proceedings, and suits brought against Fairpicture or its representatives, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), arising out of or relating to:
a) the Client’s breach of the agreement with Fairpicture or these Tool GTC;
b) the Client’s use of the services;
c) violation of applicable laws by the Client;
d) any violation of third-party IP Rights or privacy rights by Client in connection with the services, including, without limitation, claims related to unauthorized use of copyrighted material, violation of trademark rights, or any breach of applicable laws and regulations;
e) data that is uploaded, transmitted, stored, or otherwise processed by the Client or on its behalf in connection with the services.
To the extent permitted by applicable law, Fairpicture will indemnify, hold harmless and defend at its expense, the Client from any and all third-party claims, actions, proceedings, and suits brought against the Client or its representatives, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), arising out of or relating to non-compliance with GDPR or another breach of the these Tool GTC by Fairpicture.
9.5.5
The Client agrees to promptly notify Fairpicture in writing of any claim, demand, suit, or proceeding related to the above matters, and to cooperate fully with Fairpicture in the defense of such claim, demand, suit, or proceeding. The Client shall not settle any such claim, demand, suit, or proceeding without the prior written consent of Fairpicture, which shall not be unreasonably withheld.
9.5.6
Fairpicture shall have the right, at its sole discretion, to assume control over the defense of any such claim, demand, suit, or proceeding at the Client's expense. The Client agrees to provide Fairpicture with all necessary assistance, documents, and information in order to defend the claim, and to grant Fairpicture full control over the defense and settlement of the claim.
9.5.7
Any additional or service-specific limitations of liability or indemnification obligations are defined in the section for the respective Service Part.
9.6 Assignment
Neither party may assign or otherwise transfer rights or obligations arising out of the agreement between Fairpicture and the Client or these Tool GTC, to any third party without the other party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that Fairpicture may assign or otherwise transfer rights or obligations arising out of the agreement between Fairpicture and theClient or these Tool GTC,
a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of all or substantially all of its assets, or other change of control, or
b) to an affiliate.
9.7 No Partnership
Nothing in the agreement between the Client and Fairpicture or these Tool GTC is intended nor shall be deemed to create any partnership, agency or joint venture relationship by or between the parties.
9.8 Subcontractors
Fairpicture may at its sole discretion use services of third parties for the performance of all their Service Parts (hereinafter referred to as "Subcontractors"). Fairpicture is reliable for the performance of its Subcontractors.
9.9 Applicable law and Place of Jurisdiction
Swiss law (under the exclusion of the international conflict laws and the Vienna Sales Convention) applies to the relationship between Fairpicture and the Client. The ordinary courts of the Canton of Bern, Switzerland, shall have exclusive jurisdiction for the settlement of disputes, irrespective of the parties' place of business or residence.