PREAMBLE
This Liability Policy aims to present, in an educational and concise manner, the architecture of the liability regime applicable to the contractual relationships between Nereva SA and its professional Clients. It does not create rights or obligations distinct from those resulting from the Terms and Conditions of Use (“T&Cs”), the order form and the other contractual annexes, but clarifies their scope and articulation.
Legally subordinate explanatory document. This Policy constitutes an explanatory document. It is legally subordinate to the entire contractual framework governing the relationship between Nereva SA and the Client. In the event of a contradiction between this Policy and another contractual document, the contractual document prevails over this Policy. The applicable order of priority is defined in Article 4 of the T&Cs and Article 36 of the Payment and Licensing Policy. This Policy ranks last in the contractual order of priority.
Statutory corporate purpose of Nereva SA. In accordance with Article 3 of its articles of association entered in the commercial register of the canton of Vaud, the purpose of Nereva SA is the design, development, publishing, marketing, integration and operation, in Switzerland and abroad, of software and digital solutions for orchestrating and synchronising logistics flows operated by vehicles, in particular flows of materials, waste, machinery, equipment and skips linked to construction, civil engineering, recycling, construction-site transport and related sectors.
The company may in particular provide, in the form of software on demand (Software as a Service) or licences, platforms for planning, executing, documenting, tracing and archiving logistics operations, as well as associated configuration, integration, support, training and consulting services.
The company may acquire, hold, exploit, license and defend any intellectual property right, in particular patents, trademarks, designs, models, copyrights and know-how, directly or indirectly related to its main purpose.
The company may carry out, both in Switzerland and abroad, on its own behalf or on behalf of third parties, all administrative, technical, commercial, financial, movable and immovable transactions directly or indirectly related to its main purpose. It may establish branches and subsidiaries in Switzerland and abroad, acquire holdings in companies pursuing a similar or complementary purpose, and grant loans or guarantees to its subsidiaries and group companies.
The company does not carry out any transport activity and does not act as a commercial intermediary between principals and transport companies. It does not capture the commercial contractual relationship between its users.
TABLE OF CONTENTS
Article 1 — Purpose and scope
Article 2 — Relationship with the contractual framework
Article 3 — General principles of the liability regime
Article 4 — Architecture of responsibilities
Article 5 — Obligations of Nereva SA
Article 6 — Operational limits of the platform
Article 7 — Relationship between Articles 22, 22 bis and 22 ter of the T&Cs
Article 8 — Exclusions of liability
Article 9 — Quantitative limits of the liability of Nereva SA
Article 10 — Public policy reservation and mandatory rules
Article 11 — Relationship with insurance
Article 12 — Exclusion of indirect and consequential damages
Article 13 — Contractual time bar
Article 14 — Scope of exclusions and limitations
Article 15 — Client's liability
Article 16 — Indemnification by the Client
Article 17 — Disputes between Users
Article 18 — Errors, inaccuracies and non-performance by Users
Article 19 — Force majeure
Article 20 — Special case of Pilots and Beta-testers
Article 21 — Amendment of the Liability Policy
Article 22 — Applicable law and jurisdiction
Article 23 — Reference language
Article 24 — Contact
Article 1 — Purpose and scope
This Policy aims to present, in a single document, the principles, architecture and limits of the liability regime of Nereva SA, as they result from the applicable contractual framework.
It aims to facilitate the reading and understanding of the corresponding provisions by Clients, their advisers and third parties likely to have an interest in knowing this regime, in particular insurers, in-house lawyers and data protection officers.
This Policy creates no right, no obligation, no limitation and no extension of liability distinct from those resulting from the T&Cs and the other contractual documents.
Article 2 — Relationship with the contractual framework
The liability regime of Nereva SA results mainly from the following provisions of the T&Cs: Article 2 (Scope of the Services and nature of the obligations), Article 14 (Operational limits of the platform), Article 15 (Absence of party status to contracts between Users and non-enforceability of disputes), Article 15 bis (Errors, inaccuracies and non-performance by Users), Article 22 (Global limitation of liability), Article 22 bis (Express exclusion of indirect and consequential damages), Article 22 ter (Insurance and risk coverage), Article 23 (Exclusions of liability), Article 24 (Warranties and exclusion of warranties), Article 25 (Indemnification for intellectual property infringement), Article 25 bis (Indemnification by the Client), Article 26 (Force majeure), and Article 100 paragraph 1 of the Swiss Code of Obligations (public policy reservation).
The regime is supplemented by the specific provisions of the Payment and Licensing Policy (Articles 25, 29, 30), the DPA (Articles 16 and 17), the SLA Annex (Articles 8, 9 and 14), the Copyright and Intellectual Property document (Articles 18 to 20), the AI & Data Policy (Articles 22 and 23) and the Acceptable Use Policy (Articles 13 to 16).
Article 3 — General principles of the liability regime
The liability regime applicable to the Nereva Services rests on the following general principles.
Best-efforts obligations. The obligations of Nereva SA constitute, unless expressly stipulated otherwise, best-efforts obligations. Nereva SA undertakes to implement reasonable means with regard to the professional standards applicable to SaaS publishers, without any commitment as to results.
Direct attributability. The liability of Nereva SA can only be engaged in the event of a proven, established breach directly attributable to Nereva SA, having caused direct, certain and material damage to the Client.
Burden of proof. The burden of proving the breach, the loss and the causal link lies with the claimant Client.
Default limitation. The liability of Nereva SA is, by default, subject to the contractual limitations provided for in Article 22 of the T&Cs and the exclusions provided for in Article 22 bis of the T&Cs, without prejudice to the mandatory rules of Swiss law.
Contractual good faith. The entire regime is implemented in compliance with the principle of contractual good faith within the meaning of Article 2 of the Swiss Civil Code.
Article 4 — Architecture of responsibilities
The liability regime of Nereva SA is structured in three complementary levels.
First level — Definition of scope. Articles 2 and 14 of the T&Cs delimit the scope of the activity of Nereva SA as publisher of a SaaS logistics orchestration platform. Nereva SA performs no physical operation, controls no fleet, supervises no mission, and acts neither as carrier, nor as freight forwarder, nor as intermediary within the meaning of Article 1.3 of the T&Cs.
Second level — Contractual limitation. Articles 22, 22 bis and 22 ter of the T&Cs set the quantitative and qualitative limits of the liability of Nereva SA in compliance with Article 100 paragraph 1 of the Swiss Code of Obligations.
Third level — Specific exclusions. Articles 15, 15 bis, 16, 23 and 24 of the T&Cs, as well as the annexed Policies, identify the cases in which the liability of Nereva SA is expressly excluded, in particular disputes between Users, operational frictions in the field, failures of third-party systems, the consequences of Client Data and the consequences of conduct contrary to the Acceptable Use Policy.
Article 5 — Obligations of Nereva SA
The main obligations of Nereva SA, as they result from the contractual framework, include (i) the provision of the Services under the conditions defined in the order form and the T&Cs; (ii) compliance with the availability commitment provided for in Article 17 of the T&Cs and specified in the SLA Annex, within the limits of the applicable exclusion windows and caps; (iii) the implementation of the technical and organisational security measures provided for in Article 20 of the T&Cs and in the DPA; (iv) respect for the confidentiality of Client Data and the protection of personal data under the conditions provided for in the DPA and the Privacy Policy.
These obligations constitute, unless expressly stipulated otherwise, best-efforts obligations.
Article 6 — Operational limits of the platform
The Nereva Services are software functionalities. As such, the Client acknowledges and accepts that Nereva SA performs no physical operation and has no power of direction over the physical operations of Clients or their partners, that the indications, suggestions, recommendations or proposals generated by the platform are of an exclusively indicative nature and do not relieve the Client of the exercise of its own judgement, that the regulatory compliance of physical operations remains the exclusive responsibility of the Client and its partners, that Nereva SA carries out no verification of the authorisations, approvals, certifications or permits held by Clients or their partners, that the quality, accuracy, completeness and truthfulness of the information entered in the platform are the sole responsibility of the User who enters it, and that the effective, compliant, punctual or complete performance of physical services falls solely within the contractual relationship between the Users concerned.
Article 7 — Relationship between Articles 22, 22 bis and 22 ter of the T&Cs
The relationship between the three central articles of the liability regime is organised as follows.
Article 22 (Global limitation of liability). Defines the contractual cap applicable to the liability of Nereva SA for direct, certain, material damage attributable to Nereva SA. The annual cumulative cap is limited to the total amount of the sums excluding tax actually paid by the Client during the twelve (12) months preceding the triggering event. The cap per claim is limited to half of the annual cumulative cap.
Article 22 bis (Exclusion of indirect and consequential damages). Entirely excludes compensation for indirect, intangible and consequential damages, regardless of their amount. This exclusion applies before the application of the cap of Article 22 and is intended to filter the heads of compensable loss.
Article 22 ter (Insurance and risk coverage). Governs the relationship between the contractual liability of Nereva SA and its insurance coverage, and invites the Client to take out insurance policies suited to its own operational activities.
The combined application of these three articles results, in practice, in a balanced framework in which direct damages attributable to Nereva SA are compensable within the limit of the contractual cap, indirect damages are entirely excluded, and each Party bears through insurance the risks specific to its activity.
Article 8 — Exclusions of liability
Without prejudice to Articles 22 and 22 bis of the T&Cs, Nereva SA is expressly excluded from any liability in respect of (i) the inaccuracy, incompleteness or unlawfulness of Client Data; (ii) the choice, configuration and use of third-party integrations under the conditions of Article 16 of the T&Cs; (iii) the consequences of physical operations carried out by the Client or its partners; (iv) cases of force majeure; (v) the consequences of conduct contrary to the Acceptable Use Policy; (vi) disputes arising between Users; (vii) operational frictions in the field within the meaning of Article 15 bis.3 of the T&Cs; (viii) the consequences of misuse, non-compliant use or diverted use of the Services by the Client or its Users.
Article 9 — Quantitative limits of the liability of Nereva SA
The quantitative limits applicable to the liability of Nereva SA, as provided for in Article 22 of the T&Cs, are organised around the following principles.
Annual cumulative cap. The total amount of compensation owed by Nereva SA to the Client in respect of a contractual year calculated from date to date may not exceed the total amount of the sums excluding tax actually paid by the Client during the twelve (12) months preceding the triggering event. This cap relates to subscription fees exclusively.
Cap per claim. For the same triggering event or a series of related triggering events, compensation may not exceed half of the annual cumulative cap.
Scope of the invoicing taken into account. The cap is calculated on the basis of subscription fees only, excluding one-off services, re-invoiced costs and taxes.
Exclusive nature. The Service Credits provided for in the SLA Annex constitute the Client's exclusive contractual remedy in the event of non-compliance with the target availability rates and are counted, where applicable, within the global cap.
Article 10 — Public policy reservation and mandatory rules
All the contractual limitations and exclusions provided for in the contractual framework apply without prejudice to the mandatory rules of Swiss law, and in particular Article 100 paragraph 1 of the Swiss Code of Obligations, which prohibits any contractual exclusion of liability for gross negligence or wilful misconduct.
Gross negligence or wilful misconduct personally attributable to Nereva SA cannot be presumed. Its proof, which lies with the claimant Client, must be strictly established according to the evidentiary standards of Swiss law.
Article 11 — Relationship with insurance
Nereva SA has taken out a professional civil liability insurance policy as a SaaS publisher, covering its commitments under the usual conditions and limits applicable to software publishers operating in SaaS mode on the Swiss market. The corresponding certificates may be provided to Clients upon reasoned request sent to legal@nereva.com.
The Client takes out and maintains at its own expense the insurance policies suited to its own operational activities, in particular professional civil liability, operating civil liability, fleet insurance, business interruption insurance and legal protection insurance. Nereva SA assumes no insurance advisory obligation and cannot be held liable for the consequences of insufficient coverage on the part of the Client.
The insurance coverage of Nereva SA constitutes the reasonable limit of its liability exposure. Clients wishing to have broader coverage for their own operational risks are invited to take out policies suited to their activities.
Article 12 — Exclusion of indirect and consequential damages
In accordance with Article 22 bis of the T&Cs, Nereva SA under no circumstances assumes compensation for indirect, intangible or consequential damages suffered by the Client, its Users or any third party, resulting directly or indirectly from the use, unavailability, malfunction or cessation of the Services.
The following are in particular considered as indirect, intangible or consequential damages, without this list being exhaustive: loss of business, loss of activity, loss of production, loss of a site, loss of market or contract; loss of earnings, loss of opportunity, loss of margin, loss of expected profit; delay or interruption of a site, extension of deadlines, contractual late penalties towards third parties; costs of remobilisation, substitution, reorganisation or recovery of a logistics operation; commercial loss, damage to image, damage to reputation; loss of business opportunity, loss or deterioration of a commercial relationship with a partner; contractual penalties, insurance penalties, tax or social security surcharges or reassessments; internal incident management costs, crisis communication costs, legal assistance costs not attributable to an admissible action; costs of material repair of transported goods, vehicles, sites or equipment; personal injury, except where personally, directly, provably and exclusively attributable to Nereva SA; the consequences of an error, inaccuracy or non-performance by a User; and the consequences of a challenge, dispute, appeal or claim between Users or between Users and third parties.
Article 13 — Contractual time bar
Any liability action against Nereva SA must be brought by detailed written notification within one (1) year from the date on which the Client became aware, or should reasonably have become aware, of the triggering event and its author. Failing this, the action is time-barred.
This contractual time bar applies without prejudice to the mandatory limitation periods of Swiss law, which cannot be reduced by agreement below the mandatory thresholds.
Article 14 — Scope of exclusions and limitations
The exclusions and limitations provided for in the contractual framework and recalled in this Policy apply to any liability action directed against Nereva SA, whatever its legal basis, and in particular contractual liability within the meaning of Articles 97 et seq. of the Swiss Code of Obligations, tort liability within the meaning of Articles 41 et seq. of the same Code, culpa in contrahendo and liability based on reliance, and any other similar theory tending to implicate Nereva SA.
The exclusions and limitations also benefit the directors, employees, agents and successors of Nereva SA, when they are implicated by reason of their involvement in the context of the Services.
Article 15 — Client's liability
The Client is liable, towards Nereva SA and towards third parties, for compliance with the T&Cs, the DPA, this Policy and the other contractual documents by itself and by its Users; for the truthfulness, accuracy, completeness and lawfulness of Client Data; for the use it makes of the Services and of the outputs produced by the analytics functionalities; for compliance with the regulations applicable to its physical activities, in particular regarding transport, waste management, environmental protection, occupational safety, employment law and the protection of personal data; and for any operational, economic, financial or legal consequence resulting directly or indirectly from its own operational and commercial choices.
Article 16 — Indemnification by the Client
In accordance with Article 25 bis of the T&Cs, the Client indemnifies, defends and holds harmless Nereva SA, its directors, employees, agents and successors, from any claim, action, demand, proceeding, judgment, settlement, costs and losses, resulting directly or indirectly from (i) a breach by the Client or its Users of the contractual documents; (ii) an inaccurate, incomplete, late or bad-faith entry of Client Data; (iii) non-performance or defective performance by the Client or by a User of its obligations towards a third party; (iv) a dispute arising from a contractual or pre-contractual relationship between Users; (v) a failure by the Client to inform the data subjects; (vi) a failure by the Client to implement the security measures provided for in Article 20.6 of the T&Cs; (vii) any other cause provided for in Article 25 bis.1 of the T&Cs.
The indemnification obligation provided for in Article 25 bis of the T&Cs is not subject to any cap and survives the termination of the main contract for as long as necessary for its useful effect.
Article 17 — Disputes between Users
In accordance with Article 15 of the T&Cs, Nereva SA is not a party to any contract concluded between Users. Disputes, challenges or disagreements between Users remain foreign to Nereva SA. No action based on the existence, content, validity, performance, non-performance, defective performance or termination of a contract concluded between Users may be directed against Nereva SA.
This non-enforceability applies as a principal claim, as a counterclaim, by way of recourse action, by way of warranty action, by way of subrogation or by any other means, subject to gross negligence or wilful misconduct personally attributable to Nereva SA and strictly proven by the claimant.
Article 18 — Errors, inaccuracies and non-performance by Users
In accordance with Article 15 bis of the T&Cs, the quality and truthfulness of the information entered by Users are the sole responsibility of the User who enters it. The effective performance of physical services by the Users' partners falls solely within the contractual relationship between the Users concerned. Operational frictions in the field, as defined in Article 15 bis.3 of the T&Cs, remain foreign to Nereva SA and in no way engage its liability.
Article 19 — Force majeure
In accordance with Article 26 of the T&Cs, no Party may be held liable for a breach resulting from a case of force majeure within the meaning of Swiss law. Cases of force majeure include in particular natural disasters, armed conflicts, acts of terrorism, pandemics, decisions of public authorities, widespread failures of telecommunications or energy networks, massive cyberattacks not specifically directed against Nereva SA and failures of an essential technical subcontractor that cannot be replaced in the short term.
Article 20 — Special case of Pilots and Beta-testers
In accordance with Article 1 quater of the T&Cs, Clients benefiting from Pilot or Beta-tester status are subject to a specific liability regime, which replaces the general regime for the duration of the pilot phase.
For these Clients, the annual cumulative cap applicable under Article 22.3 of the T&Cs is reduced to a maximum lump sum of one thousand Swiss francs (CHF 1,000), no service level obligation applies under the SLA Annex in accordance with its Article 1, and the indemnification obligation provided for in Article 25 bis of the T&Cs remains fully applicable.
The other limitations and exclusions of the general regime remain applicable to the Pilot framework.
Article 21 — Amendment of the Liability Policy
Nereva SA reserves the right to amend this Policy to take account of developments in the main contractual framework. Any amendment is made by way of an addendum published on Nereva SA's media and notified to the Client by any appropriate means.
Given the explanatory nature of this Policy, its amendments cannot under any circumstances modify the scope of the provisions of the T&Cs and the other contractual documents. In the event of an amendment to the main contractual framework, this Policy is updated to reflect its content.
Article 22 — Applicable law and jurisdiction
This Policy is governed exclusively by Swiss law, to the exclusion of any conflict-of-laws rule and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG, Vienna, 1980).
Any dispute relating to the formation, validity, interpretation, performance or termination of this Policy falls within the exclusive jurisdiction of the ordinary courts of the canton of Vaud, place of the registered office of Nereva SA, subject to a mandatory appeal to the Swiss Federal Supreme Court.
Article 23 — Reference language
The French version of this Policy alone is legally authoritative. Any translation is provided for information purposes only and cannot bind Nereva SA.
Article 24 — Contact
Nereva SA, Rue de Rive 22D, CH-1260 Nyon, Switzerland.
Legal questions : legal@nereva.com.
Security and incidents : security@nereva.com.
Data protection : privacy@nereva.com.