Voyado Elevate 4 General Terms and Conditions 2023-04-17
1.1 These General Terms and Conditions together with the other agreement documents govern the use of the Product.
2.1 The following terms shall have the meanings set forth below (wherever used in the Agreement):
• “Acceptable Use Policy”: conditions for use of the Product as made available by the Supplier from time to time.
• “Business Days” means all days except for weekends and Swedish public holidays.
• “Cluster” is a number of servers/nodes in Cloud, interacting within close proximity.
• “Commencement Date” means the first day of the month which the Customer receives access to the Product, but no later than the date stated in the Agreement.
• “Component”: functionality not part of standard product, available as add-on functionality.
• “Confidential Information” means all material, non-public, business-related information, written or oral, that is disclosed or made available through the Agreement. Confidential Information includes, but is not limited to this Agreement, price information, trade secrets, ideas, concepts, techniques, designs, software, source code, computer programs, business activities etc.
Confidential Information also includes information exchanged between the Parties under any non-disclosure agreement entered into prior to this Agreement.
• “Customer Contact” means any Customer employee appointed by Customer to manage the technical and operational aspects of the Product from the Customer side. All Customer Contact details, such as email address etc. shall be provided to Supplier before using the Product and be kept up to date at all times.
• “Customer Data” means all electronic data or information submitted by the Customer to the Product.
• “Customer Development” means consultancy services for additional functionality, enhancements, trainings etc. which may be provided by call-off as described in Section 8 below.
• “Defect” means any material errors, non-conformities, malfunctions, or other deviations from the specifications, which are not insignificant.
• “Documentation” means written information, including specifications, technical manuals, training material or other material regarding the Product, as made available to the Customer online or in any other matter.
• “Effective Date” is the date when this Agreement is duly signed by authorized individuals from both Parties.
• “Indexed Items” means the total number of imported indexed variants and imported indexed content for each catalogue. Catalogue means a combination of Market and Locale.
• “Intellectual Property Rights” means all patents, inventions, trademarks, logos, design rights (whether registered or not), applications for any of the foregoing, copyright, software, database rights, domain names, know-how and other similar rights or obligations whether registerable or not in any country.
• “License Activation Date” means the date when the Product can be made publicly available to Customer’s end-users, but no later than the date stated in the Main Agreement.
• “Locale(s)” means number of unique subsets of a language, for which region-specific formatting is required, for example, “en-GB” imported into the Product.
• “Main Agreement” is the agreement document named “License Agreement”.
• “Market(s)” means number of unique containments that separate behavior data, configured in the Product.
• “Non Production Cluster” is defined as a Cluster that is used for development or testing purposes and which may not be used for Customer clients. The Service Level Agreement agreed between the Parties is not applicable on Non-Production Clusters.
• “Production Cluster” is defined as a Cluster where the Product is made available to Customer clients via the site.
• “Product” means the functionality described in the specification and the Agreement.
• “Project License” means the license applicable under the project period from the Commencement Date to the License Activation Date.
• “Regular License” means the license applicable from the License Activation Date.
• “Sessions” means a group of user interactions during a certain time frame that result in communication with the Product and as measured according to the Supplier’s standard further detailed in the Documentation.
3. Scope of the Product and Supplier’s Undertakings
3.1 The Supplier undertakes to deliver the Product as described in the specification and the Agreement subject to the terms and conditions.
3.2 The Product shall be delivered with due care and in a professional and workmanlike manner.
4. License Grant and Customer’s Responsibilities
4.1 Subject to the terms and conditions of the Agreement and the payment of applicable fees, Supplier grants the Customer a: (i) non-exclusive, non-transferable, right to use Product solely for its internal business purposes; (ii) the Product may only be used on the Site(s) specified in the Main Agreement in a manner consistent with the user limitations specified or referenced in the Agreement and the Documentation, and (iii) to use the Documentation solely for supporting the Customer’s authorized use of the Product.
4.2 The Customer shall: (i) be responsible for the accuracy, quality and legality of the submitted Customer Data to the Product and of the means by which the Customer Data has been acquired; (ii) use the Product only in accordance with the Agreement, the Documentation and applicable laws and government regulations; (iii) not copy, maintain, distribute, sell, sublicense, lease, rent, network, transfer, make corrections to or modify, revise, improve, upgrade, enhance or create derivative works of the IPR; (iv) not reverse engineer, decompile, disassemble or otherwise translate the IPR or attempt to derive any of the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the IPR or permit or induce the foregoing; (v) not use, make available or sublicense the Product for the benefit of a third party or in any manner, for example, but not limited to, in a service bureau, commercial time-sharing, rental, software as a service or outsourcing context.
4.3 Any product data submitted to the Product on behalf of the Customer shall be product data which actually will be used by the Product. Product data no longer in use by the Product shall be removed by the Customer within a reasonable time.
4.4 The Customer shall not conduct performance testing on the Production Cluster of the Product, or invasive tests on any Cluster without prior approval.
4.5 In the event of a breach of this Section 4, the Supplier is entitled and free to choose, effective immediately, whether to restrict access to the Product or give notice to terminate the Agreement and receive compensation for any damages. The Supplier reserves the right to charge the Customer any expense or cost for measures taken by the Supplier resulting from misuse by the Customer. In the event of a breach of this clause, the Supplier reserves the right to retain information (however not personal data) stored by the Supplier, awaiting the Customer’s performance, as surety for its claim.
4.6 The Customer is responsible at all times for both access to and costs of any and all technical equipment and software which are required to use the Product.
5. Prices and Terms of Payment
5.1 Applicable prices and fees for the Product are specified in the Agreement. All fees in the Agreement are specified exclusive of value-added tax, customs, duties and similar taxes and Customer is liable for payment of all such. The Regular License fee is invoiced quarterly in advance, which also applies to any overage for super users and/or additional clusters. The invoice will be sent out one (1) month before the applicable period. Any overage for Indexed Items and visits will be invoiced monthly in arrears. Payment falls due no later than thirty (30) days after the invoice’s date of issue. In the event of overdue payment, default interest will be charged pursuant to the Swedish Interest Act (1975:635). Fees may be adjusted annually on the 1st of January with a five (5) percent increase.
5.2 In the event of non-payment, where such late payment is not subject to a good faith dispute, the Supplier is entitled and free to choose whether to block access to the Product until payment in full has been received or to give notice to terminate the Agreement. Such notice of termination requires the Supplier to have given the Customer a thirty (30) day deadline for rectification. Supplier is entitled to setoff any claims the Customer might have against Supplier for any outstanding fees.
5.3 The Supplier shall be entitled to review and audit systems and records used for measuring Sessions solely for the purpose of ensuring the Customer’s correct measurement and reporting of Sessions. In the event the audit should determine that Customer has reported an incorrect number of Sessions, the Supplier shall be entitled to charge the outstanding fees retroactively plus an interest of twenty (20) percent of the correct fee.
6. Users and Access to the Product
6.1 The Customer is responsible for approving access to users and maintaining the confidentiality of usernames, passwords, and account information. Customer is responsible for all use and harm caused by its users, including unauthorized users who were able to gain access through any actions or omissions by Customer. Customer agrees to immediately notify Supplier of any unauthorised use.
6.2 Customer shall not permit use of the Product which (i) in any manner violates applicable legislation or issued guidelines, (ii) may be considered harassing, promotes racism or hatred or is otherwise damaging to any person or property, (iii) violates privacy rights, (iv) infringes any Intellectual Property Rights or other proprietary rights, (v) interferes with the operations of the Product, including any action that imposes or may impose an unreasonable or disproportionately large load on Supplier’s or our third party providers infrastructure, interferes or disrupts any networks, equipment or servers connected with the Product, or (iv) constitutes fraud or misrepresentation.
6.3 The Customer is responsible to notify the Supplier of individuals which are authorised to contact the Supplier with support inquiries. In the event the Customer has not made such notifications, the Supplier accepts no liability for proper authorizations.
7. Updates and New Versions
7.1 As Part of the Supplier’s ongoing effort to improve and develop the Product, the Supplier is entitled to update and make other changes to the Product. Any change which results in the removal of, or any drastic reduction in key-functionality that existed at the Effective Date of this Agreement, must be notified within reasonable time from when the applicable change is to be implemented. Provided that the change involves a clear and substantial functionality impairment or restriction for the Customer, the Customer may object to such change within fourteen (14) days from the date of the notification and the Customer has upon such objection the right to terminate the Agreement effective from the day on which the change is to be implemented and to be refunded any advance payments for the license paid for the period from the date of the implementation of the change. The Supplier shall however always be allowed to implement changes necessary due to legal and/or regulatory requirements.
From time to time, Supplier may invite you to try services and functionality that are not generally available on a beta, pilot or limited release (“Exploratory Services”) You may accept or decline such trial at your sole discretion. Any Exploratory Services will be clearly designated as exploratory, beta, pilot, limited release, developer preview, non-production or by a similar description. Exploratory Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs and errors, and may be subject to additional terms. Exploratory Services are not considered part of the “Product” hereunder and are provided “as is” with no express or implied warranty or liability.
8. Customer Development
8.1 Customer Development may be provided upon the Parties mutual agreement. All such services shall be detailed in a statement of work or service description and be provided under the terms of the Agreement and further subject to Supplier’s applicable hourly rates unless otherwise agreed.
9. Liability for Defects
9.1 If any Defects in the Product should occur, Customer shall notify such Defects to the Supplier as soon as possible but no later than seven (7) Business Days after becoming aware of the Defect. The Supplier shall then remedy the Defect as soon as possible without any cost for Customer. In the event an error or fault should prove to not be Supplier’s responsibility, Supplier shall be compensated for any work performed according to Supplier’s applicable hourly rates.
9.2 The Customer shall designate one (1) primary and preferably two (2) backup Customer Contacts each one with sufficient technical expertise, training and/or experience, who may address Supplier’s support team in case of Defects(s).
10. Customer Data
10.1 The Customer retains the rights to Customer Data in the Product. The Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights ownership of and/or right to use all Customer Data and the Customer hereby warrants that it has and will continue to have all rights and consents necessary to allow us to process such data as stated in the Agreement. The Supplier ensures that necessary technical and organizational measures are adopted to protect the Customer Data stored with the Supplier from unauthorized access, destruction, and modification.
10.2 The Supplier undertakes to refrain from handing over Customer Data to a third party, except in instances where such an obligation complies with a statute, statutory order, court order or court ruling (not limited to Swedish legislation).
10.3 The Supplier may only process Customer Data in order to perform responsibilities under the Agreement and the Customer’s instructions. This paragraph notwithstanding, customer information (not containing personal data) may be used by the Supplier for statistical purposes in a manner that is aggregated, non-personally identifiable and does not identify the Customer and further, to analyze, develop, test, and operate, provide and support the Products and/or any of products of the Supplier and its Affiliates.
11. Personal Data
11.1 For the processing of personal data, the Parties have entered into a data processing agreement. The Customer is responsible, as data controller, for the lawful processing of personal data that takes place by means of the Customer’s use of the Product as described in the data processing agreement. Customer is further responsible to ensure that all personal data has been obtained in a lawful manner and that it has all necessary consents, permits and approvals (as applicable) for the processing, Customer may not provide or collect any personal data which may be regarded as sensitive and may only use the Product in accordance with the purposes described in this Agreement.
12. Intellectual Property Rights
12.1 Other than the usage right in Section 4.1 above, all Intellectual Property Rights and proprietary rights relating to the Product or created, developed or used in or in connection therewith, belong to Supplier, or, if applicable, Supplier’s third party licensors and this Agreement does not transfer any Intellectual Property Rights to the Customer.
12.2 The Customer is not entitled to adapt, translate, arrange, reverse engineer, decompile, disassemble or otherwise modify any software or part of the Product without obtaining the advance written approval of the Supplier. If approved, all Intellectual Property Rights concerning such modifications will belong to the Supplier without separate compensation. Customer may further not copy or recreate any source or object code unless explicitly permitted by applicable mandatory law.
12.3 The Customer may provide Supplier with suggestions of modifications, improvements and other ideas regarding the Product, (“Feedback”). Supplier shall be entitled to freely use such Feedback and incorporate it into the Product without any obligation to compensate the Customer.
13.1 Supplier shall compensate the Customer for reasonable and proven damages which has been finally awarded in a judgement or approved settlement due to reasonable claims that the Product infringes any Intellectual Property Right of a third Party within the jurisdiction of this Agreement. This indemnity shall apply provided that Customer notifies Supplier as soon as becoming aware of the claim, no admission of liability is made, and Supplier is given sole authority, information and assistance for the defense or settlement of the claim.
13.2 The indemnity in Section 13.1 above, shall not apply for any claim that, (i) arises of any unauthorized use of the Product, or (ii) arises out of the use of the Product in combination with any software or equipment not approved in writing by Supplier, or (iii) reasonably could have been avoided if Supplier’s written instructions had been followed. Supplier has no liability towards Customer if Customer continues to use the Product after the end of such usage rights.
13.3 If the Product is subject to an infringement or misappropriation claim, or in Supplier’s reasonable opinion is likely to become, Supplier may at its own expense and option, elect to either: (i) procure the right for Customer to continue using the Product, (ii) make such alterations/modifications so that it becomes non-infringing without incurring a material diminution in performance and function, or (iii) replace the Product with a non-infringing substantially similar substitute. If none of these are available, Supplier may terminate the Agreement and refund Customer any prepaid fees.
13.4 Customer shall, at its own expense, defend Supplier in a lawsuit or other judicial action, and pay the amount of any adverse final judgment (or settlement to which Customer has consented) from such lawsuit, judicial action or similar proceeding, for any third party claim(s) alleging that the Customer Data or Customer’s unauthorized use of the Product in breach of the agreement terms infringes or misappropriates the intellectual property rights of a third party or violates applicable law, provided that Supplier (i) gives Customer prompt written notice of such claims, (ii) permits Customer to assume and have sole control over the defense or settlement of the claims, and (iii) provides Customer with such assistance, documents, authority and information as it may reasonably require in relation to any such claim and defense or settlement thereof.
13.5 The foregoing Section 13 states each Party´s entire liability, and the other Party´s sole remedy, for the type of claim described in these Sections.
14. Force Majeure
14.1 Except for Customer’s payment obligations, neither Party can be held liable for any undertakings or for loss or damage in the event that a Party is prevented from performing its obligation due to circumstances that are beyond that Party’s control. For example, but not limited to, legal enactment in Sweden or abroad, official action in Sweden or abroad, events of war, large-scale mobilization or calling up of troops, requisition, sequestration, strike, blockade, lockout, break-in, water damage, fire damage, stroke of lightning, flooding or other similar circumstance. The provisions concerning strike, lockout and blockade also applies, even if the Party is the object of or takes such industrial action. A Party cannot be held liable for loss or damage caused by stoppage or other disturbance of automatic data processing, data transfer, telecommunications, other electronic communication or power supply or for any other similar reason beyond that Party’s control.
15.1 The Supplier is entitled to use sub-contractors for the provision of the Product to the Customer. Supplier shall however remain fully liable for such sub-contractors. All use of any sub-processors is governed by the Data Processing Agreement.
16. Liability and Limitation of Liability
16.1 A Party shall be liable for any damage caused to the other Party due to breach of this Agreement. Neither Party shall however be liable for any indirect damage, such as, loss of profit, loss of production, loss of data or similar.
16.2 A Party’s aggregate liability shall be limited to a sum that at most equates to the Regular License for the Product in the twelve (12) months prior to when the damage occurred, or in the event the Agreement has not yet been in force for twelve (12) months, the average Regular License (or Project License if the License Activation Date has not occurred) multiplied by twelve (12). In order for compensation to be payable, a claim must be submitted within one (1) month from the time the loss/damage is detected or should have been detected.
16.3 The limitations in this Section 16 shall not apply for damages caused by a Party due to gross negligence or willful misconduct, unauthorized disclosure of Confidential Information under Section 18, breaches of Section 12 (Intellectual Property Rights), and breaches of Section 4.2 (Customer Data) above.
16.4 Both Parties shall procure and maintain reasonable insurance for potential liability under this Agreement.
17.1 During the term of the Agreement, each Party grants the other Party the right to: (i) use the other Party’s logo and name to identify the Party as being a customer of Supplier or supplier of Customer, on its website, in marketing materials and in other publicity material; and (ii) issue a press release announcing the Parties relationship.
18.1 Each Party undertakes to the other Party at all times, during the term of the Agreement and thereafter, to hold in confidence, to use only for the purposes of performing its work under the Agreement and not to print, publicize or otherwise disclose Confidential Information relating to the other Party to any third party, without the prior written consent of the other Party. Each Party shall safeguard the Confidential Information of the other Party with the same degree of care as it uses for its own Confidential Information of equivalent importance, but in no event less than a reasonable degree of care.
18.2 However, Confidential Information shall not include any information that:
(i) is known to the receiving Party, under no obligation of confidence, at the time of disclosure by the other Party;
(ii) is or becomes publicly known through no wrongful or negligent act of the receiving Party;
(iii) is lawfully obtained by the receiving Party from a third party who in making such disclosure breaches no obligation of confidence to the other Party; or
(iv) is independently developed by the receiving Party, as evidenced by the receiving Party’s records.
18.3 Notwithstanding Section 18.1 above, the receiving Party shall not be prevented from disclosing Confidential Information received from the disclosing Party if (i) such disclosure is in response to a valid order of a court or any other governmental body having jurisdiction over the Agreement, or (ii) such disclosure is otherwise required by law or mandatory stock market regulations, provided that the receiving Party first has given prior written notice to the disclosing Party and made reasonable effort to protect the Confidential Information in connection with such disclosure. Supplier shall further be entitled to share Confidential Information with its mother company.
18.4 However, nothing in the Agreement shall prevent the receiving Party from using – in its own business activities – general know-how acquired, general principles learned, and general experience gained during any work performed under or in connection with the Agreement, provided that such use does not constitute a breach by the receiving Party of its undertakings of confidentiality as set out in the Agreement.
19. Third Party Services
19.1 Supplier may provide integration, APIs and connections to other services, (“Third Party Services”). Such are provided “as is” and the Supplier accepts no responsibility or liability for such and may further discontinue or makes changes to such at any time. Customer agrees and acknowledges that Customer is responsible to follow any and all terms and conditions provided by the third party and to indemnify Supplier for any damages caused to the Supplier by Customer’s use of Third Party Services or breach of this Section 19.
20 . Assignment of Agreement
20.1 Neither Party shall be entitled to assign or transfer all or any of its rights, benefits or obligations under the Agreement without the written approval of the other Party, except that Supplier may transfer and assign the Agreement to an affiliate.
21. Term and Termination
21.1 The Agreement shall enter into force upon the Effective Date and shall remain in force until terminated. The term for each Agreement is stated in the Main Agreement.
21.2 Both Parties shall be entitled to immediately terminate the Agreement if:
21.2.1 the other Party enters into bankruptcy, reorganization, composition negotiations or liquidation proceedings.
21.2.2 the other Party commits a material breach of the Agreement which remains un-remedied thirty (30) days after the Party has notified the breaching Party of the applicable breach. Repeated failures to pay invoices in due time and breaches of the Intellectual Property Provisions shall always be considered a material breach.
21.3 Upon the termination of this Agreement, for whatever reason, Customer’s right to use the Product will automatically terminate and Customer shall return all documentation regarding the Product to Supplier.
21.4 Upon termination of this Agreement, Supplier shall after Customer’s request provide the Customer Data in a standardised format at Customer’s cost. Supplier will store the Customer Data four-teen (14) days after the termination of this Agreement after which all Customer Data will be deleted.
21.5 Sections naturally intended to survive the termination of this Agreement, such as Section 12 (Intellectual Property Rights) Section 16 (Liability and Limitation of Liability), Section 18 (Confidentiality) and Section 25 (Applicable Law and Disputes) shall continue in full force and effect and survive the termination of this Agreement.
21.6 Termination shall not affect the Supplier’s right to payment up until the date of termination.
22.1 The Supplier is entitled to modify the Agreement if deemed necessary due to regulatory requirements, changes regarding sub-contractors or company polices. The Customer must be notified of such modifications no less than sixty (60) days before the modification enters effect. If the Customer objects to the modification within thirty (30) days from receiving the notification, the Customer is entitled to terminate the Agreement and be refunded fees for any pre-paid Product concerning the time after the implementation of the change.
23.1 Supplier or a third party appointed by Customer, however not a competitor to Customer, may, at any time during Customer’s normal business hours and upon reasonable advance notice, conduct an audit at Customer’s premises to ascertain if Customer’s use of the Product is in compliance with this Agreement. The audit will be conducted on Supplier’s expense, but Customer shall reasonably assist Supplier in the conduct of such audit and shall grant Supplier reasonable access to Customer’s premises and computer equipment solely for the purpose described herein. In the event an audit should reveal that Customer is in breach of the terms of this Agreement, Customer shall promptly reimburse Supplier for the costs of such audit.
24.1 The Agreement, and any agreement incorporated herein via mutual written consent among the Parties, constitutes the entire agreement between the Parties hereto with respect to its subject matter and annuls and replaces any and all other previous oral and written agreements, understandings and communications which may have existed between the Parties with respect to such subject matter. No modification, amendment, alteration or waiver of any provision hereof will be valid or binding unless made in writing and either signed or accepted electronically by the Party against whom the modification, amendment, alteration or waiver is to be asserted.
24.2 Any waivers hereunder shall be in writing and the failure of any Party at any time to require the other Party’s performance of any obligations under the Agreement shall not affect the right subsequently to require performance of the obligation. Any waiver of any breach of any provision of the Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision.
24.3 Unless otherwise stated in the Agreement, Customer shall, in order not to forfeit its right to assert a claim, submit its demand for compensation not later than one (1) month after becoming aware, or reasonably should have become aware, of the claim, however no later than twelve (12) months after the expiry or termination of the Agreement.
24.4 If due to a change in any applicable law or due to a decision or other act (including failure to act) by any competent authority one or more of the provisions of the Agreement shall be invalid, illegal or unenforceable in any respect or an amendment of one or more of the provisions of the Agreement is required, the remainder of the Agreement shall be valid and binding and the Parties agree that they shall replace or amend such provision or provisions with a valid, legal and enforceable arrangement which in its economic and other effects shall be as close as possible to the contractual situation existing prior to such a change, decision or act.
25. Applicable Law and Disputes
25.1 This Agreement shall be governed by Swedish law, except for its rules regarding international private law. Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
25.2 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm and the language for the proceedings shall be English or Swedish. Any judgements, material or documentation subject to the proceedings shall be subject to confidentiality.