Sustainable Infrastructure Foundation
Last update on June 27, 2018
The Sustainable Infrastructure Foundation, a Geneva based non-profit entity with offices at 13 Chemin de Serves, 1228, Geneva, Switzerland, under the supervision of the Swiss Federal government, owns and operates “SOURCE” (www.sif-source.org) with the aim of supporting governments, public institutions and agencies (“public sector”) to be more efficient and better prepared in the development of sustainable, climate resilient and inclusive infrastructures.
This Agreement constitutes a legal agreement between a natural person, government, corporation, company, or any other type of legal entity (hereinafter referred to as the “User” or collectively as the “Users”) and the Sustainable Infrastructure Foundation (hereinafter referred to as “SIF”) (hereinafter collectively referred to as the “Parties”, and each individually as a “Party”) describing the services provided to the User by SIF and other aspects of the contractual relationship between the User and SIF.
“Background Intellectual Property” means any Intellectual Property owned or controlled by a Party to this Agreement at the Effective Date of this Agreement.
“Confidential Information” means any knowledge and information disclosed or made available by a Party to the other Party pursuant to or in the course of this Agreement, pertaining to the first Party’s proprietary products and processes, know-how, inventions, technical data or specifications, systems, improvements, discoveries, materials, data, database, source code, object code, software, methods, designs, concepts, compilations of information, records, templates (including sector and subsector templates and their benchmark), trade secrets, business plans, customer lists, supplier lists as well as any other information pertaining to the business of that Party.
“Content” means any information, content and material, including, but not limited to, text, documents, databases, images, photographs, graphics, logos, sounds, video clips, source code, object code and software.
“Disclosing Party” means any Party to this Agreement disclosing Confidential Information to the other Party, regardless of the modality of disclosure.
“Effective Date” means the date of first acceptance of this Agreement by the User or the date of first access to or use of SOURCE (previously named the IISS Platform) by the User or the date on which the Special Conditions were agreed upon between the Parties, whichever is the earliest.
“Intellectual Property” or “Intellectual Property Rights” means any registered and unregistered intellectual property rights, such as but not limited to patents, designs, trademarks, copyrights, know-how, trade secrets and Confidential Information.
“Special Conditions” means any additional terms and conditions pertaining to specific Services and features provided by SIF, such as particular levels of access of SOURCE.
“Receiving Party” means any Party to this Agreement receiving Confidential Information from the other Party.
2. Scope of Agreement and Acceptance
This Agreement governs the access to and use of SOURCE, a secure cloud based multi-user project development application software that is developed, operated and maintained by SIF, and any updates, upgrades, new versions, enhancements, features, editions or components (hereinafter referred to as “SOURCE”) as well as all current or future, paid or free, associated Services (hereinafter referred to collectively as the “Services”) by a natural person, government, corporation, or any other type of legal entity that has completed the account registration process as described under section 3 “User Account and Registration” below (hereinafter referred to as the “User” or collectively as the “Users”).
The obligations contained therein apply equally to natural persons (e.g. officers, members, employees, agents, representatives) actually using SOURCE and to the legal persons (e.g. government, corporation, partnership or any other type of entity) on whose behalf they are acting. The User represents and warrants that the User has all necessary rights and authority to enter into this Agreement and, when applicable, the Special Conditions and perform its obligations hereunder. If the User is acting on behalf of a government agency, that entity accepts the terms and conditions of this Agreement.
The Services may contain email services, bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, photo albums, documents and task management, report generation, file cabinets and/or other message or communication facilities designed to enable the User to communicate with others. The use of any of the Services set forth above, including any updates, enhancements or new features, are subject to the terms and conditions of this Agreement.
By accessing to or using any part of SOURCE or the Services, or by agreeing to this Agreement where the option is made available to the User, the User agrees to be bound by the terms and conditions of this Agreement in their entirety without limitation or qualification, as well as SIF’s Privacy and Data Protection Policy, which is incorporated herein by reference.
3. User Account and Registration
In order for the User to have access to and use SOURCE and the Services, the User must register with SIF or be invited by an existing User.
When opening an Account, the User must complete the registration process by providing SIF with current, complete and accurate information as prompted by the applicable registration form. All information is collected in accordance with SIF Privacy and Data Protection Policy, as described under “10. Privacy and Data Protection”.
The right to use SOURCE is personal to the User and is not transferable to any other person or entity.
The User is entirely responsible for maintaining the confidentiality of the User’s login credentials (account’s username and password). Furthermore, the User is entirely responsible for any and all activities that occur under the User’s account and for ensuring that all use of the User's account complies fully with the provisions of this Agreement. The User agrees to notify SIF immediately of any unauthorized use of the User’s account or any other breach of security. SIF will not be liable for any loss that the User may incur as a result of someone else using the User’s password or account, either with or without the User’s knowledge.
4. Use of SOURCE and the Services
Subject to the User’s compliance with the terms and conditions of this Agreement, SIF grants to the User a non-exclusive and non-transferable right to access and use SOURCE and the Services as described in this Agreement for the User’s own internal business or personal use in conformity with the purpose set out in this Agreement. All proprietary rights in SOURCE and the Services shall remain with SIF. The User is not granted any license to any software by this Agreement.
Any other use of SOURCE or the Services is expressly prohibited. In particular, the User shall not, without limitations:
- copy, transmit, distribute, sell, license or sublicense, rent, lease, lend, publish,
reproduce, modify, create derivative works from, transfer, download, backup, archive, or make available to third parties in whole or in part, SOURCE or the Services;
- Attempt to breach or circumvent SOURCE security;
- Disassemble, decompile, or reverse engineer any aspect of SOURCE or the Services, except and only to the extent that the applicable copyright law expressly permits doing so;
- Separate components of SOURCE or the Services for use on different devices;
- Use SOURCE or the Services in any unauthorized way that could interfere with anyone else’s use of SOURCE or the Services.
The User is entirely responsible for obtaining and maintaining any and all technical equipment, such as computer hardware, operating system and Internet access, needed to access and use SOURCE and associated Services and for taking adequate and appropriate data security measures in accordance with good industry practice to protect against fraud or cyber-attacks on a continuous basis.
It is also the sole responsibility of the User to take security measures to protect its computer system, including, but not limited to, the installation of antivirus and firewall software.
5. Acceptable Use Policy
The User shall use SOURCE and the Services only for the purposes permitted by this Agreement and only for lawful purposes.
Without prejudice to the above, in particular, the User shall not
- mislead or deceive, including, but not limited to, misrepresent one’s identity or authority to act on behalf of another;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- interfere with or disrupt the operation of SOURCE or the Service or any another’s computer and software in any respect, including, but not limited to, by uploading or transmitting files that contain viruses, Trojan horses, worms, time bombs, cancel bots or corrupted files;
- engage in systematic retrieval of content from Source to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes);
- create links to SOURCE without written permission from SIF;
- use SOURCE or the Services for any commercial or other purposes, such as advertising or offering to sell or buy any goods or services, in a way contrary to the purposes of SOURCE as set out in this Agreement;
- use SOURCE or the Services to advertise or perform any unauthorized commercial solicitation, including, but not limited to, the solicitation of Users to become subscribers of other on-line information services competitive with SIF;
- use SOURCE or the Services in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise);
- post, upload, distribute, transmit or otherwise make available through SOURCE or the Services any Content that violates or infringes in any way the rights of others, including, but not limited to, the right of privacy and publicity;
- post, upload, distribute, transmit or otherwise make available or disclose through SOURCE or the Services any Content in violation of intellectual property rights, such as copyright, patent, trademark, trade secrets or other proprietary rights;
- post, upload, distribute, transmit or otherwise make available through SOURCE or the Services any Content that is unlawful, threatening, abusive, defamatory, indecent, vulgar, obscene, profane, racially or ethnically offensive, or otherwise objectionable or inappropriate;
- post, upload, distribute, transmit or otherwise make available through SOURCE or the Services any Content that promotes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
- post, upload, distribute, transmit or otherwise make available through SOURCE or the Services any Content that contains advertising or any solicitation with respect to products or services, in a way contrary to the purpose of SOURCE as set out in this Agreement;
- copy, store or otherwise access any Content contained on SOURCE or the Services, unless expressly permitted by SIF or the applicable the third-party owner;
- use any Content which is made available through SOURCE or the Services, in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any Party;
- falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
Any conduct by a User that in SIF's discretion restricts or inhibits any other User from using or enjoying SOURCE or the Services will not be permitted.
Any violation by the User of the User’s obligations under this Section 7 will result in the suspension of the User’s account. SIF may immediately terminate this Agreement by giving written notice of termination to the User if the User fails to remedy the violation within 14 days of notification of such violation.
6. Ownership & Intellectual Property
Each Party is and shall remain the exclusive owner of its respective Background Intellectual Property, and shall have no right to use the Background Intellectual Property of the other Party, unless expressly provided otherwise.
SOURCE and all related Services, as well as the Content made available by SIF through SOURCE, are protected by copyright, trademark and other laws of Switzerland and foreign countries.
The User acknowledges that SOURCE and the Services, as well as the Content made available by SIF through SOURCE, including all associated Intellectual Property Rights, are the exclusive property of SIF and its licensors. All rights not expressly granted herein are reserved by SIF.
Except as expressly set forth in this Agreement, SIF neither assigns any Intellectual Property Rights, nor grants any licenses or other rights with respect to Source the Services or the Content made available through SOURCE. SIF, or the applicable third party owner, retains all right, title and interest (including but not limited to copyrights, trademarks, patents, trade secrets, as well as any other Intellectual Property Rights) in and to SOURCE, the Services and the Content made available on SOURCE.
The User agrees and acknowledges that all Intellectual Property that was developed or discovered by User relying on SIF’s Intellectual Property shall be the sole and exclusive property of SIF.
7. User Content
a. In General
The User acknowledges and agrees that the User is solely responsible for the Content that the User makes available through SOURCE or the Services. Accordingly, the User represents and warrants that the User either is the sole and exclusive owner of all the User Content made available through SOURCE or the Services or that the User has all the rights necessary for the Content made available through SoOURCE or the Services and that the posting, uploading, publication, submission or transmittal of said Content on SOURCE or the Services does not infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary rights or result in the violation of any applicable law or regulation.
By making the Content available through SOURCE or the Services, the User hereby grants SIF the irrevocable, royalty free, non-exclusive, worldwide right to use, copy, modify, transmit, distribute, display, perform, reproduce, publish, license or sublicense, create derivative works from, transfer and process such User Content in the framework of SOURCE or the Services solely for SIF to performs its obligation under this Agreement. SIF does not claim any ownership rights in any such content.
b. Publicly Accessible Content
If the User posts contributions (such as comments, etc.) or any other Content that by its nature is intended to be publicly accessed through corresponding functions of SOURCE, the User acknowledges and agrees that this Content or these contributions may be disclosed so that they could be publicly accessed. This also applies to the User name or pseudonym.
c. Comments or suggestions
All User’s comments and suggestions of a general nature on SOURCE or the Services are treated as non-confidential. The User licenses to SIF all rights necessary to use and incorporate them into SOURCE or the Services, without payment or attribution to the User.
d. Special Provisions related to Public Procurement Procedures
In the event that the User in using SOURCE to exchange information in the context of public procurement procedures, The User acting as a Procuring Authority in the awarding of public contracts for supplies, services and works undertakes to comply with the laws and regulations governing award of public sector contracts to the extent such laws and regulations are applicable to User as an international organization with certain privileges and immunities. In particular, when issuing public invitations to tender, the User bears full responsibility for the content of such invitations and any modifications thereto as well as any other Content related to a public invitation to tender published on SOURCE.
Furthermore, the User acting as a Tenderer in public procurement procedures hereby agrees to the transmission of the User Content and Personal Data to the Procuring Authority.
Both Procuring Authority and Tenderer hereby agree to the publication of the Content related to the award of a contract on SOURCE to be publicly accessed.
SIF is independent and neutral and has no influence on decisions taken by a procuring authority and published on SOURCE. SIF is neither a party to nor an intermediary in contracts concluded between the Users of SOURCE. All procurement contracts are concluded and executed between the relevant procuring authority and tender outside SOURCE. Consequently, objections to award of contracts cannot be filed against SIF.
8. SIF Content and Trademark
SIF, or the applicable third party owner, retains all right, title and interest (including but not limited to copyrights, trademarks, patents, trade secrets, as well as any other Intellectual Property Rights) in and to the Content made available on SOURCE by SIF.
The User shall not, without limitations, copy, transmit, distribute, sell, display, perform, reproduce, modify, publish, license or sublicense, frame, create derivative works from, transfer, backup, download, archive or otherwise use in any other way for commercial or public purposes, in whole or in part, any Content obtained from SOURCE without the prior written consent of SIF or the applicable third party owner.
The logo and name of SIF and SOURCE are trademarks or registered trademarks of SIF. All rights reserved. All other trademarks appearing on SOURCE is the property of their respective owners.
The User agrees and acknowledges that all Content, and all Intellectual Property Rights in, or arising from, SIF Content is and shall always remain the property of SIF. The User agrees and acknowledges that all Content and all Intellectual Property that was developed or discovered by the User relying on SIF Content shall be the sole and exclusive property of SIF. the User hereby irrevocably assigns to SIF all right, title and interest in and to all such Intellectual Property for the full duration of such rights, wherever in the world enforceable.
a. In the performance of this Agreement, the Parties will exchange Confidential Information. The Receiving Party undertakes to keep confidential and not to disclose to any third party any Confidential Information of the Disclosing Party, including after termination of this Agreement.
b. Specifically, the User undertakes to keep confidential and not to disclose to any third party the Templates made available by SIF through SOURCE, including after termination of this Agreement.
c. The Receiving Party undertakes to use the Confidential Information exclusively for the purpose of this Agreement. The Receiving Party agrees and acknowledges that all Confidential Information, and all Intellectual Property Rights in, or arising from, the Confidential Information is and shall always remain the property of the Disclosing Party. The Receiving Party agrees and acknowledges that all Confidential Information and all Intellectual Property that was developed or discovered by the Receiving Party relying on the Confidential Information disclosed by the Disclosing Party shall be the sole and exclusive property of the Disclosing Party.
d. The obligations mentioned under 9.a., 9.b. and 9.c. shall not apply to Confidential Information which:
(i) was in the public domain at the time of its receipt by the Receiving Party;
(ii) becomes part of the public domain after its receipt by the Receiving Party, but not through a breach of this Agreement by the Receiving Party or its employees, agents and affiliates;
(iii) is rightfully given to the Receiving Party by an authorized third party on a non-confidential basis;
(iv) was independently developed or discovered by the Receiving Party without reliance upon the Confidential Information disclosed by the Disclosing Party.
The Receiving Party shall bear the burden of proof if it invokes one of these exceptions.
e. The Receiving Party shall have the right to disclose to the competent authority any Confidential Information which is required by law, a competent court or a governmental entity to be disclosed, provided however that the Disclosing Party shall first have been given the opportunity to obtain a protective order precluding or limiting the disclosure of said Confidential Information.
f. The Receiving Party may communicate the Confidential Information only to those of its employees, agents and affiliates who are directly and necessarily involved in the performance of this Agreement, and who are bound in writing to the Receiving Party by obligations similar to those of this Section 9. The Receiving Party shall be responsible for any breach of these obligations by its employees, agents and affiliates.
10. Privacy and Data Protection
The treatment of the Users’ Personal Data made by SIF, its subcontractors, or any of its affiliates is in compliance with Article 13 of the Swiss Federal Constitution and the provisions of the Swiss Federal Act on Data Protection.
11. Monitoring and User Disputes
SIF reserves the right, but has no obligation, to monitor the access to and/or use of SOURCE or the Disputes between Users.
The User is solely responsible for its interactions with other the Users of SOURCE.
12. Unsolicited Idea Submission Policy
SIF or any of its employees, officers and agents do not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new products or technologies, processes, materials, marketing plans or new product names. Please do not send any original creative artwork, samples, demos, or other works. The sole purpose of this policy is to avoid potential misunderstandings or disputes when SIF's products or marketing strategies might seem similar to ideas submitted to SIF. So, please do not send your unsolicited ideas to SIF or anyone at SIF. If, despite our request that you not send us your ideas and materials, you still send them, please understand that SIF makes no assurances that your ideas and materials will be treated as confidential or proprietary.
13. Disclaimer and Limitation of Liability
The User expressly agrees that its access to and use of SOURCE and/or the Services is at the User's own risk.
a. Disclaimer of Warranty
SOURCE, the Services, as well as the Content provided by SIF through SOURCE or the Services are provided on an "as is" and “as available” basis, without representation or warranties of any kind, either express or implied, including, but not limited to, warranties of title, non-infringement, merchantability or fitness for a particular purpose.
Without limiting the foregoing, SIF does not warrant the accuracy, reliability, up-to-dateness, timeliness, completeness, integrity, security, accessibility or availability of SOURCEm the Services or the information, Content or results obtained from SOURCE or the Services, or that SOURCE, the Services or the Content will be available at all time or is error-free or virus-free.
b. Limitation of Liability
To the fullest extent permitted by law, in no event will SIF or any of its Directors, Officers, Principals, Employees, Board Members, Interns, Volunteers, Agents and Representatives be liable to the user or any other person for any direct or indirect loss or damage whatsoever, including but not limited to loss of profit, sales, business; loss of business opportunity, goodwill or reputation; loss of data; liability, cost, claim, expense or damage of any kind; arising out of or related to the access to or use of or the inability to access to or use of all or part of SOURCE or the Services, as well as the use of or reliance on the content held on or made available in connection with SOURCE or the services, regardless of the cause of action, even if SIF has been advised of the possibility of the same.
to the fullest extent permitted by law, SIF excludes all conditions, warranties and representations in relation to SOURCE, the services as well as the content provided by SIF through SOURCE or the services, whether express or implied.
c. Force majeure
Neither party will be responsible for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, acts of god, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, and failures of third party providers (including providers of internet services and telecommunications). The party affected by any such event shall notify the other party within a maximum of fifteen (15) days from its occurrence. The performance of this agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this agreement.
d. Links to Third Party websites
The User acknowledges that by clicking on links to third party websites, the User leaves Source.
Links to third party websites and the content or availability of such websites lie outside the scope of responsibility of SIF. SIF has no control over the content of third party’s websites. Links to third parties’ websites are included solely for the User’s convenience, and do not constitute any endorsement by SIF. Access and use of such websites are at the User’s own risk.
14. Indemnity Clause
To the extent permitted by applicable law, regulation, or privileges and immunities, the User agrees to defend, indemnify and hold harmless SIF, its affiliates and subsidiaries and their respective Directors, Officers, Principals, Employees, Board Members, Interns, Volunteers, Agents and Representatives from and against any liability or claim made against SIF by any third parties, including any and all actions, suits, damages, claims, loss or liabilities (including, without limitations, expenses and attorneys' fees) arising out of or related to the access to or use of Source or the Services by the User or the User’s violation of the terms and conditions of this Agreement.
The User shall promptly notify SIF of such claim.
15. Changes and Updates
SIF reserves the right, at its sole discretion, to change or amend the terms of this Agreement, including its Privacy and Data Protection Policy, at any time without prior notice. The updated terms will be effective immediately upon providing the User with notice of the modification. By continuing to access or use Source or any of the associated Services after the modified terms have been provided to the User, the User is indicating that it agrees to be bound by the modified terms.
SIF reserves the right to change, modify, update, expand, limit, suppress, restrict, discontinue or delete at any time Source or the Services or any aspect or feature of Source or the Services without prior notice, including, but not limited to, content, hours of availability and equipment needed for access or use.
16. Term and Termination
The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either Party as outlined in this Section 16.
Either SIF or the User may terminate this Agreement at any time by providing the other Party thirty (30) days written notice of such termination. SIF may immediately terminate this Agreement by giving written notice of termination to the User in the event of any material breach by the User of the terms and conditions hereof or as otherwise provided in this Agreement.
The obligations mentioned under Section 6, 7, 8, 9, 10, 13 and 14 shall survive the expiration or termination of this Agreement, as well as any other obligation which by its nature is intended to survive.
The User agrees that all questions, comments, notices and other communications concerning this Agreement shall be submitted in writing to SIF via email at firstname.lastname@example.org. All notices and other communications to be given under this Agreement to the User shall be submitted by SIF via the User’s account.
b. Entire Agreement
This Agreement and, when applicable, the Special Conditions, constitute the entire and exclusive understanding and agreement between SIF and the User pertaining to the subject matter hereof and supersedes any and all prior and contemporaneous agreements and understanding between SIF and the User (whether written or oral) relating thereto, except any prior confidentiality agreement which may have been entered by the Parties, which shall continue to apply to disclosures made prior to the Effective Date. This Agreement may be modified or amended according to Section 15.
If there is a conflict between these Terms of Service and the Special Conditions, the Special Conditions will control for that conflict.
No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
Nothing contained in this Agreement shall be deemed a waiver, express or implied, of any privilege, exemption or other immunity pursuant to the Convention on the Privileges and Immunities of the United Nations or other Convention, law or decree of an international or national character.
d. Relationship of the Parties
The Parties shall perform all obligations under this Agreement as independent contractors, and nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent between the parties to this Agreement or any affiliates or subsidiaries thereof, or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.
SIF is not and does not become a party to or other participant in any contractual relationship between Users, nor is SIF acting as an agent in any capacity for any User.
This Agreement may not be assigned or transferred by either Party without the other Party’s prior written consent.
f. Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of Switzerland, without giving effect to any choice of law or conflict of law rules.
If one or more of the provisions of this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.
h. Disputes Resolution
The Parties shall use their best efforts to settle amicably any dispute, controversy or claim arising under, out of or relating to this Agreement including, without limitation, its existence, validity, binding effect, performance, interpretation, breach, termination, or any other act within the scope of this Agreement, as well as non-contractual claims, through negotiation, mediation or other modes of amicable settlement.
Where the Parties wish to seek such an amicable settlement through mediation, the mediation shall be undertaken in accordance with the Swiss Rules of Commercial Mediation of the Swiss Chambers' Arbitration Institution.
If the Parties fail to resolve the dispute, controversy or claim amicably within sixty (60) days after receipt by one Party of the other Party's request for such amicable settlement, either party shall submit the dispute, controversy or claim to arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Geneva. The arbitral proceedings shall be conducted in English.
The Parties shall be bound by the arbitration award rendered in accordance with such arbitration, as the final adjudication of any such dispute, controversy or claim.