Terms & Conditions
These General Terms and Conditions apply to the Agreement entered into by and between Provider and Customer. The Parties agree to abide by and comply with these General Terms and Conditions and acknowledge that these General Terms and Conditions apply to all aspects of the Agreement (including any Quotation) and other contracts concluded between the Parties.
1. Definitions
“Affiliate” means, in relation to a Party: (i) an organization, which directly or indirectly controls a Party; (ii) an organization, which is directly or indirectly controlled by a Party; or (iii) an organization, which is controlled, directly or indirectly, by the ultimate parent company of a Party. “Control” as per (i) to (iii) above is defined as owning more than fifty percent of the voting stock of a company or having otherwise the power to govern an organization.
“Agreement” means these General Terms and Conditions and any Quotations as well as any amendments to any of the foregoing.
“Documentation” means user manuals and technical documents that are generally provided by Provider to customers in connection with the Software.
“Renewal date” means the license period related to a specific Quotation.
“SLA” means Service Level Agreement.. Unless otherwise agreed between the parties, the SLA offered by the Provider shall include access to the Software all calendar days with the exception of scheduled and announced services due to maintenance, updates and other services required. The availability offered will furthermore include access to the Software per calendar month of XX %.
“Software” means the commercially available web-based software application(s), or on-premises installed, as specified in the Quotation, including any associated products.
“Quotation” means each specific ordering document duly executed by the Parties and based on a quotation, which specifies certain specific matters such as the Software, products, services, and content ordered, and the fees and payment terms for the same.
2. Software usage rights and services agreed
2.1 Upon execution of each Quotation, and subject to Customer’s payment of all applicable fees under such Quotation, Provider grants to Customer a limited, non-transferable, non-exclusive right to access and use the Software solely for the permitted purposes stated in the respective Quotation.
2.2 Provider will host and retain control over the Software as such and make the Software available through the internet for access, use and operation by Customer through a web-browser or via an on-premises installation.
2.3 Customer shall not make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software or Documentation, or access the Software or Documentation in order to build a similar or competitive product or service.
2.4 Customer shall supply Provider with all reasonable information Providers requests regarding Customer’s use of the in order for Provider to deliver any services agreed. Failure in this respect may result in adjusted time of delivery and of fees offered should the failure have affected Provider´s ability to deliver.
3. Provider’s general Undertakings
Provider shall, unless otherwise agreed to in writing:
a) make the Software available to Customer through Provider’s web portal on the internet or via an on premises installation;
b) provide customer support in the English language in accordance with these General Terms and Conditions and as per the SLA, if applicable.
4. Fees and payment
4.1 Customer shall pay compensation to Provider for the rights granted under each Quotation as well as for the specification and other support services as specified in each Quotation. Quotations also stipulate the amount to be paid in respect of the foregoing. Customer’s payment obligations apply upon the execution of each respective Quotation. All amounts paid by Customer are non-refundable.
4.2 Customer is not entitled to any set-off for claims which refer to any other Quotation than the specific Quotation covered by the respective invoice for which set-off is claimed. Amended scope or requested changes by Customer, will affect fees accordingly.
4.3 All amounts shall be paid no later than thirty (30) days after the date of each invoice. Should Customer fail to make payment in full on the due date for any payment, Provider shall be entitled to claim interest on an annual rate of 10% on the sum overdue until payment is made in full.
4.4 Payments are deemed made when the money is available in an account designated by Provider. All payments delivered under the Agreement shall be made in SEK unless agreed otherwise in writing in the Quotation.
4.5 All fees and other charges payable by Customer to Provider under the Agreement are exclusive of all taxes (including withholding taxes), duties, levies or other charges of any kind, which shall be paid by Customer. Provider is entitled to amend fees following the end of an agreed term/license period and the General Terms and Conditions may also be subject to change following the end of an agreed term.
4.6 In the event payment is not made within thirty (30) days of the date payment was due and such payment is not the subject of a reasonably basis written dispute, Provider shall have the right, at its sole option, to suspend or limit Customer’s use of the Software and publish notifications in the Software until payment is made. Provider will provide ten (10) days written notice to Customer prior to any suspension, limitation or notification in the Software. Any such suspension in time will not be seen as any grant to Customer to withhold payment, irrespective of term of suspension.
5. Data protection
Both parties shall comply with all applicable data protection laws and regulations as well as the terms of the data processing agreement if applicable. A separate data processing agreement will be entered into between the parties should this be deemed required. Irrespective of the aforementioned, the Customer shall not without the prior written approval of the Provider upload any personal data in the Software that will become accessible to Provider.
6. Intellectual Property Rights
6.1 Provider shall retain all right, title and interest in and to Software and the Documentation (including all intellectual property rights therein), as well as all modifications and/or improvements to any of the foregoing, regardless of whether Customer has provided feedback regarding such modifications and/or improvements. Furthermore, Provider retain all rights to their proprietary education or training content, and pre-existing materials related to any professional services, processes and methodology. Provider reserve all rights not expressly granted under the Agreement.
6.2 Notwithstanding anything to the contrary in the Agreement, Provider may access and use, and shall retain all right, title and interest in any material and or data provided by Customer to Provider for the purposes of being content in the Software. For avoidance of doubt, this includes but is not limited to samples and combinations of end user offerings supplied by Customer.
6.3 Customer shall notify Provider as soon as it becomes aware of any illegal or unauthorized use of the Software or any of Provider’s intellectual property rights therein or relating thereto. Customer shall assist Provider (at Provider’s expense) in taking any reasonable steps to defend Provider’s rights therein.
7. Warranties
7.1 Provider represents and warrants that (i) Provider possesses all rights necessary to grant to Customer the rights set forth herein;
(ii) the Software is provided “as is” and will perform substantially in accordance with the Documentation and, the SLA; and (iii) any professional services will be provided in a
professional manner consistent with industry standards. Extended support may be agreed separately.
7.2 Provider does not guarantee or warrant that the Software will perform error-free or uninterrupted or that Provider will correct all errors. For any breach of the above warranties, Customer’s exclusive remedy and Provider’s entire liability shall be (i) for Provider to correct the software errors that caused a breach of the warranty, or, if Provider cannot correct such breach in a commercially reasonable timeframe, Customer may terminate its Quotation for the specific Software product that is in breach and receive a refund of the amount of the fees prepaid by Customer for such Quotation or, if applicable, (ii) for Provider to re-perform deficient professional services.
7.3 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, PROVIDER AND ITS AFFILIATES DISCLAIM AND EXCLUDE ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Audit and Inspections
8.1 Provider may, upon thirty (30) days’ prior written notice, conduct reasonable audits of Customer’s activities related to the Agreement. Such audits shall be conducted at reasonable times mutually agreed to by the Parties during regular business hours, and without disruption to normal business operations. Each Party shall bear its own costs in connection with any audit.
9. Indemnification
9.1 Each Party agrees to defend and indemnify the other Party, and their respective directors, officers, employees and agents from and against any liability, damage, loss or expenses (including reasonable attorneys’ fees and cost of litigation) awarded by an arbitration tribunal, suffered or incurred in relation to or arising out of Customer’s use of the Software.
9.2 The indemnifying Party shall have the exclusive right to defend any claim (including the right to select and control the work of counsel). The indemnifying Party may not settle or compromise any claim, action or allegation, except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed). The other Party shall give such assistance and information as the liable Party may reasonably require in settling or defending the claims.
10. Limitations of Liability
10.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR
ANY LOSS OF REVENUE, PROFITS, USE OR DATA ARISING UNDER THE AGREEMENT.
10.2 PROVIDER’S MAXIMUM LIABILITY IN CONNECTION WITH THE AGREEMENT, ON THE BASIS OF ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL BE LIMITED TO THE FEES COLLECTED BY PROVIDER FROM CUSTOMER PURSUANT TO THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE IMPOSITION OF LIABILITY, HOWEVER NO MORE THAT FEES PAID.
10.3 THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION 12 DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW OR TO CUSTOMER’S CONTRACTUAL PAYMENT OBLIGATIONS.
11. Confidentiality
11.1 Each Party agrees, in the event it receives confidential information of the other Party or its Affiliates to take all reasonable actions to protect and hold such information in confidence and to use such confidential information only for those purposes contemplated under the Agreement. The obligations of each Party under this Section 11 shall survive for five (5) years after the expiration or termination of the Agreement.
11.2 Notwithstanding Section 11.1, the recipient shall have no obligations with respect to any portion of the received information which:
a) is or becomes available to the public without the fault of the recipient;
b) is already rightfully known to the recipient free of any obligation of confidentiality, at the time of disclosure;
c) is independently developed by the recipient as evidenced by its written records; or
d) is required to be disclosed to comply with applicable law or a judicial order and the disclosing Party is given timely and non-prejudicial notice of the demand for such disclosure, to the extent possible.
12. Term and termination
12.1 Any termination of the Agreement shall be made by written notice to the other Party. Specific provisions on the term and termination are set forth in the Quotation. However, any notice of termination without cause of the Customer, shall be made no later than sixty (60) days prior to the agreed renewal date related to a specific Quotation.
12.2 In addition, and without prejudice to any remedy it may have against the other Party for breach or non-performance of the Agreement, each Party shall have the right to terminate the Agreement in whole or in part with immediate effect by giving the other Party notice in writing if:
a) the other Party is in material breach of the Agreement and fails to remedy such breach or default within thirty
(30) days of receipt of written notice from the Party asserting the material breach and requesting its remedy; or
a) the other Party suspends its payments or otherwise becomes insolvent to the extent that it may not be expected to fulfil its duties.
12.3 Termination according to Section 12.2 shall be made without undue delay after the circumstance invoked as basis for termination becomes known to the terminating Party or should have been known to such Party.
12.4 Termination of the Agreement shall be without prejudice to any remedy either Party may have against the other Party for breach of this Agreement.
12.5 Upon termination of the Agreement (and save for on-going Quotations as set out in section 12.1 above in which the terms in this section 12.5 shall apply when the relevant Quotation is finalized):
a) all rights and licenses granted by Provider to Customer, including without limitation the right to use the Software in any manner, shall terminate immediately.
b) any materials and tangible of a disclosing Party’s confidential information provided by such Party pursuant to the Agreement to the receiving Party shall be promptly destroyed or returned by the receiving Party to the disclosing Party, as instructed by the disclosing Party; and
c) in no event shall termination of the Agreement release either Party from any accrued obligation, including Customer’s obligation to pay any amounts due on or before the effective date of termination. Unless termination is due do Provider´s material breach, Customer must pay fees related to the remainder of the then current term applicable to each specific Quotation.
13. Force majeure
13.1 Performance by either Party of its obligations under the Agreement shall be excused for a period that is reasonable under the circumstances if failure or delay thereof is caused by
any unforeseeable events or circumstances beyond such Party’s control which could not have been reasonably foreseen or reasonably circumvented after occurrence (hereinafter “Force Majeure”).
13.2 A Party wishing to claim relief by reason of Force Majeure shall notify the other Party in writing without delay on the intervention and on the cessation thereof. If performance by either Party is delayed for a period three (3) months or more, the other Party may terminate the Agreement.
14. Notices
Any notice, request, and other communication to be given by a Party under the Agreement shall be deemed to be valid and effective if personally delivered to the other Party or sent by email to the recipient Party’s e-mail. Notices to be sent to Provider, shall be sent to [email protected] to be deemed valid.
15. Miscellaneous
15.1 Provider may engage subcontractors to perform any undertakings, services and/or actions under the Agreement.
15.2 Neither Party may in any respect represent the other Party nor enter into any agreement or other commitment on the other Party’s behalf. Nothing herein shall be construed to, nor create the relationship of principal and agent, or employer and employee, or partnership, or joint venture between the Parties.
15.3 These General Terms and Conditions and such other terms and conditions set forth in the Agreement constitute the entire understanding and agreement by and between the Parties with respect to the transactions contemplated by the Agreement and supersede any previous understandings or agreements between the Parties, whether written or oral, regarding the transactions contemplated by the Agreement. The provisions set forth for each specific Quotation shall prevail should there be any inconsistency between the foregoing and these General Terms and Conditions.
15.4 The provisions of the Agreement are severable and should any provision of the Agreement be determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions of the Agreement, provided that the essential purpose of the Agreement is not frustrated.
15.5 The failure of either Party to assert a right under the Agreement or to insist upon compliance with any term or condition of the Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party.
15.6 Neither the Agreement nor any of the rights and obligations arising hereunder may be assigned or transferred by either Party (including, without limitation, by operation of law) without the prior written consent of the other Party. Such consent will not be unreasonably withheld or delayed. Both Parties shall however be entitled to transfer the Agreement and any of the rights and obligations arising hereunder as part of a merger or acquisition.
16. Governing law and Disputes
16.1 The Agreement shall be construed in accordance with and be governed by the laws of Sweden, without any reference to its conflict of law principles.
Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of one (1) arbitrator, unless the Institute in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the arbitral tribunal shall be composed of three (3) arbitrators. The place of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be Swedish.