GENERAL CUSTOMER TERMS AND CONDITIONS 2016-01-01
1.1 Infobaleen AB, Swedish company registration no. 559007-9892, (hereinafter “Infobaleen”) has developed a web-based service that collects companies transactional data, analyse and visualise the data and can connect the analysed data with relevant actions (hereinafter the “Service”). A more detailed description of the Service is available on www.infobaleen.com (hereinafter the “Website”).
1.2 By providing the requested customer information and approving these General Customer Terms and Conditions, Infobaleen and the Customer (hereinafter referred to individually as “Party” and jointly as the “Parties”) enter into a binding agreement the detailed contents of which are derived from the information provided by the Customer in conjunction with registration and these General Customer Terms and Conditions (hereinafter jointly referred to as the “Agreement”). In this Agreement, “Customer” means the legal person set forth in the provided customer information. The Personnel of the Customer who use the service are referred to herein as the “Users”. In this Agreement, “Personnel” means employees, consultants and persons holding comparable positions. The Agreement is a condition for the Customer and the Users to be able to receive and have access to the Service. The Customer shall be responsible for the acts and omissions of the Users to the exclusion of all liability on the part of Infobaleen.
2. USER ACCOUNT
2.1 In order for the User to be able to use the Service, the Customer must create a personal user account for the User (hereinafter a “User Account”). In the creation of a User Account, it is incumbent upon the Customer to use correct and complete user information (hereinafter the “User Information”). The User must be a natural person who is alive at the time a User Account is created, and only one User Account may be used per natural person.
2.2 The User can log into the Service via the Website or, if approved by the Customer, via Slack (hereinafter a “Third Party Account”). When logging into the Service via the Website the User’s e-mail address is used as the username for the User Account. Following the creation of the User Account, the User obtains an automatically generated password. The Customer undertakes to ensure that the User, without undue delay, replaces the automatically generated password with a new password chosen by the User. The username and password are used when the User logs into the Website and/or the Service via the Website. When logging into the Service via a Third Party Account, the user name and password for the Third Party Account are used. Infobaleen reserves the right to deny access to the Service if it can not be verified that the Third Party Account is held by natural person that is alive.
2.3 Infobaleen cannot verify that it is the User who is using the Service, only that (i) the proper username and password have been given, (i) the proper Third Party Account has been used. Accordingly, the Customer undertakes to ensure (i) that the User does not disclose or in any other manner make available the password to the Service or the Third Party Account (hereinafter jointly a “Password”) to any unauthorised person, and (ii) that unauthorised persons do not obtain access to the Password in any other manner. In the event the Password is nonetheless used by a person other than the User, or where there is a failure to comply with the rules set forth in Section 2.4, Infobaleen may block the User from using the Service. However, in such event, the Customer shall be notified of such block.
2.4 The Customer undertakes to ensure that the User:
(a) will choose a Password which is difficult for persons other than the User to determine. Accordingly, the Password may not consist of, for example, all or part of the name and/or personal identification number of the User or a closely-related person to the User;
(b) will securely store any record of the Password;
(c) will not disclose the Password to any unauthorised person; and
(d) will immediately change the Password in the event of any suspicion that an unauthorised person has obtained the Password.
2.5 Where there is reason to assume that (i) the username and password, or (ii) the Third Party Account, are being misused or have been misused by unauthorised person, the Customer shall immediately notify Infobaleen. Such notification shall contain information regarding the User’s name, username, password, Third Party Account and information regarding the period of time the Customer suspected that the username and password or the Third Party Account were misused by unauthorised persons. The Customer shall be liable for any loss incurred by Infobaleen as a consequence of the misuse of the username or password or Third Party Account by unauthorised persons. Such liability shall apply until such time as the Customer, by notifying Infobaleen, blocked the User’s username and password or Third Party Account.
3. USE OF THE SERVICE
3.1 The Parties are agreed that title to all copyright, as well as patent rights and other intellectual property rights relating to the Service and/or the Website is vested with Infobaleen and, accordingly, the Customer is not entitled to use the Service and/or Website in any manner other than as expressly stated in this Agreement.
3.2 Provided that the Customer fulfils its undertakings in accordance with the Agreement, Infobaleen grants to the Customer the non-exclusive right to use the Service in accordance with that which is permitted by the functions of the Service and as specified in this Agreement. Notwithstanding the right to establish Users pursuant to this Agreement, the Customer shall not be entitled to assign, transfer or sub-license its rights pursuant to this Agreement without Infobaleen’s prior written consent.
3.3 As stated in Section 1.1, the Service is web-based. This means that the Service is reached by connection to the Internet. For such connection and communication, it is necessary to maintain, for example, certain data and/or other communications equipment, software and internet connections services (hereinafter the “Equipment”). Infobaleen shall bear no responsibility for such Equipment. The technical requirements from time to time relating to the Customer’s Equipment are available on the Website. Infobaleen shall bear no liability for losses incurred by the Customer as a consequence of faults or deficiencies in the Customer’s Equipment. The Customer acknowledges and is aware that upgrades and/or modifications of the Service may entail changes to the technical requirements relating to the Customer’s Equipment. The aforementioned is necessary in order for the Customer to be able to use the improvements entailed in updates and/or modifications.
3.4 The Customer undertakes to, and undertakes to ensure that Users:
(a) in using the Service, comply with (i) the provisions of this Agreement, (ii) applicable laws, ordinances and decisions by governmental authorities, and (iii) Infobaleen’s instructions for the use of the Service issued from time to time (see the Website);
(b) in conjunction with the use of the Service, refrain from uploading any material to the Website and/or Service which may contain viruses, trojans or any other code (so-called “malware”) which may damage, deactivate, overload or impair the Website and/or the Service or encroach on the use by any Other Customer of the Website and/or Service. In this Agreement the term “Other Customer” means another Customer who utilises the Service by virtue of an agreement with Infobaleen in a manner comparable to that of the Customer;
(c) refrain from any actions the purpose of which are to circumvent Infobaleen’s security system – e.g. by utilising another user’s username and password or Third Party Account, or disclosing usernames and passwords or Third Party Accpunts to another person – or attempting to test the security of the Website and/or the Service without obtaining Infobaleen’s prior written approval;
(d) refrain from the compiling (reverse engineer) the Website and/or the Service;
(e) refrain from taking measures the purpose of which is to afford Customers/Users unauthorised access to any computer system or network covered by the Website and/or the Service; and
(f) refrain from procuring or attempting to procure material or information which was not intentionally made available or provided by the Website and/or the Service.
3.5 Violations or attempted violations of one, several or all of the provisions in Section 3.4 may constitute a criminal act and Infobaleen may therefore, where necessary, involve relevant authorities in order to address such type of criminal act.
4.1 The Service is provided 24 hours a day, seven days a week, 365 days per year and is available (at least) 98 percent of said time. This means that Infobaleen does not warrant that the Service and the Website at all times will be free of faults or outages.
4.2 Since the Service is web-based, the Customer is aware and acknowledges that temporary outages and Internet delays do not constitute a fault or outage in the Service. Infobaleen has no duty to remedy faults or outages beyond Infobaleen’s control which could not be reasonable expected by Infobaleen and the consequences of which Infobaleen could not have reasonably avoided or overcome such as, for example, but not limited to, faults or outages relating to the Customer’s Internet connection, the Equipment and the presence of such circumstances as set forth in Section 11.3.
4.3 From time to time, provision of the Service may be suspended for measures (hereinafter “Measures”) such as, for example, but not limited to, maintenance, service and updating. Infobaleen reserves the right to suspend provision of the Service in order to take such Measures. To the extent possible, such outages shall be planned for times when the use of the Service is normally low.
4.4 Infobaleen shall be entitled, at any time whatsoever and without advanced notice, to close the Website and/or access to the Service in order to protect the Website and/or the Service from unauthorised attack or comparable.
4.5 Infobaleen shall be entitled, with immediate effect and until further notice, to block Users from using the Service (i) where payment of the Monthly Fee (defined in Section 7.1) has not been received by Infobaleen by the due date, (ii) where the Customer fails to fulfil its undertakings pursuant to the Agreement, or (iii) where Users, at any time, do not comply with this Agreement or where Infobaleen has reasonable grounds to assume that such is the case. The Customer shall not be released from its payment obligation in respect of the Service for the period during which the Service is blocked. Where there are no grounds for termination of the Agreement (see Section 8.2), Infobaleen shall re-open the Service as soon as the activity in violation of the Agreement has ceased. The Customer shall be notified of such block.
5. FAULTS IN THE SERVICE
5.1 The following shall apply where there is a fault or outage in the Service for which Infobaleen is responsible. Subject to the exceptions set forth in Sections 5.4 and 5.5, faults or outages in the Service for which Infobaleen, is responsible pursuant to the Agreement shall be rectified without cost to the Customer. In this Agreement, “faults or outages in the Service” means that the Service does not function in the intended manner or is not available to the agreed extent.
5.2 Troubleshooting is provided foremost via the help section on the Website and, in the alternative, by e-mail via forms on the Website or via e-mail to email@example.com. Infobaleen shall provide manual troubleshooting only during office hours (hereinafter “Office Hours”), i.e. between 08.00 and 17.00 (Swedish time), Monday to Friday, with the exception of Swedish Holidays on which no troubleshooting will take place and days prior to Swedish Holidays on which troubleshooting will take place only between 08.00 and 12.00 (Swedish time). In this Agreement the term “Swedish Holidays” means so-called bank holidays and Easter Eve, Midsummer Eve, Christmas Eve and New Year’s Eve.
5.3 In conjunction with fault notices, the Customer shall describe the manner in which the fault is manifested. In addition, the Customer shall, where the personnel working with troubleshooting so request, demonstrate the manner in which the fault manifests.
5.4 Infobaleen shall have no duty to rectify faults where outages in the Service or due to the improper use of the Service or which were caused by faults or outages in the Equipment.
5.5 Where, following fault notification from the Customer, Infobaleen determines that there is no fault for which Infobaleen is responsible pursuant to the Agreement, it shall be incumbent on the Customer to pay reasonable compensation to Infobaleen for the costs incurred by Infobaleen as a consequence of the Customer’s fault notification.
6.1 Infobaleen provides Support with respect to the Service to the following extent. “Support” means support to the Customer to be able to use the Service in the intended manner. Support is provided foremost via the help section on the Website and, in the alternative, by e-mail via forms on the Website or via e-mail to firstname.lastname@example.org. Infobaleen shall provide manual troubleshooting only during Office Hours, Monday to Friday, with the exception of Swedish Holidays on which no troubleshooting will take place and days prior to Swedish Holidays on which troubleshooting will take place only between 08.00 and 12.00 (Swedish time).
6.2 In conjunction with Support, the Customer must clearly describe the problem via forms on the Website or by e-mail. In addition, the Customer shall demonstrate the problem upon request by personnel working with the support matter.
6.2.1 For the sake of clarity, it is noted that Infobaleen does not provide support with respect to Equipment for which the Customer is responsible, for example, but not limited to, the Equipment.
7. PRICE AND PAYMENT TERMS AND CONDITIONS
7.1 For the use of the Service by the Customer and support (Section 6) the Customer shall, unless otherwise agreed by the Parties, pay compensation in the following way.
(a) Starting Fee: a starting fee, in an amount set forth in the Agreement, shall be paid on the day when this Agreement is duly entered into by both Parties.
(b) Monthly Fee: a monthly fee, in an amount set forth in the Agreement, shall be paid (per calendar month) in advance.
7.2 Payment shall be made in Swedish currency (or any other currency agreed in writing by the parties) and deposited on the bank account set forth in the respective invoice. Payment must be received by Infobaleen not later than the due date set forth in the invoice. Upon the failure to pay an invoice, the following shall apply. Penalty interest shall be payable in accordance with the Swedish Interest Act (Swedish Code of Statutes 1975:635) (Sw: räntelagen). In addition, Infobaleen shall be entitled to charge the Customer statutory reminder fees from time to time, collection fees and fees comparable therewith. The Parties are agreed that, in conjunction with the interest calculation pursuant to this Agreement, the reference interest rate shall at no time be less than zero (zero floor).
7.3 Infobaleen shall be entitled to assign its right to payment pursuant to the Agreement to a third party.
7.4 In the event the Customer is of the opinion that an invoice is incorrect, the Customer shall notify Infobaleen of the same within a reasonable time. Except where special cause exists, a reasonable time shall be deemed to be within seven (7) days from the date on which the invoice was received by the Customer. In the event notice of the error is not received by Infobaleen within the prescribed time, the Customer’s right to object to the invoice shall be forfeited.
7.5 The Customer shall only be entitled to a set-off of any counterclaims against Infobaleen where such are based upon a final judgment of a court of law or accepted by Infobaleen.
8. AGREEMENT TERM AND TERMINATION
8.1 Agreement term
8.1.1 The Agreement shall – except where prematurely terminated in accordance with Section 8.2.1 below – apply for a period of three (3) months commencing on the day it is entered into and shall thereafter be extended by consecutive periods of three (3) months except where terminated. In order to be valid, notice of termination must be in writing and received by the Party not later than one (1) month prior to the expiry of the respective term of agreement.
8.2 Premature termination
8.2.1 In addition to the provisions thereon in other parts of the Agreement, each Party shall be entitled to terminate the Agreement with immediate effect:
a) where the other Party or, as regards the Customer, a party for whom the Customer is responsible (Users), materially breaches this Agreement and does not effect full rectification within fourteen (14) days following a written demand therefor received by the breaching Party. For the sake of clarity, it is noted that breaches of the provisions under Section 3.4 shall at all times constitute a material breach of this Agreement; or
b) where the other Party suspends payments, takes a decision to enter into voluntary or involuntary liquidation (Sw: likvidation), applies for corporate reorganisation (Sw: företagsrekonstruktion) or bankruptcy (Sw: konkurs) (or where a third party petitions to place such Party into bankruptcy) or where a Party, in another manner, is deemed to be insolvent.
8.2.2 In addition, Infobaleen shall be entitled to terminate the Agreement with immediate effect in the event payment pursuant to the Agreement is not received by Infobaleen within fourteen (14) days following the due date.
8.2.3 Notice of termination shall be given in writing and without unreasonable delay after the circumstance upon which it is based becomes known or should have become known to the affected Party.
8.2.4 Irrespective of whether the Agreement is terminated, a Party shall be compensated for any loss incurred as a consequence of a breach of contract.
8.3 Consequences of the termination of the Agreement
8.3.1 In conjunction with the termination of the Agreement, the Customer shall ensure that the Users immediately cease all use of the Service.
8.3.2 It shall be incumbent upon the Customer, prior to termination of the Agreement, to transfer the Information and Processed Information (defined in Section 9.3) to another location. Where, however, the Agreement is terminated in accordance with Section 8.2.1, Infobaleen shall afford the Customer the possibility, during a period of not less than thirty (30) days following termination of the Agreement, to transfer Information and Processed Information to another location.
8.3.3 Notwithstanding the reason for the termination of the Agreement, the provisions of Sections 3.1, 7 (Price and Payment Terms and Conditions), 8.2.4, 8.3, 9 (Intellectual Property Rights), 11 (Damages, Etc.), 12 (Miscellaneous) and 13 (Disputes) shall continue to apply between the Parties.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All intellectual property rights and technical solutions pertaining to the Website and/or the Service shall remain the property of Infobaleen or the property of third parties with whom Infobaleen cooperates. The Customer undertakes not to use, and to ensure that Users do not use, intellectual property rights or technical solutions pertaining to the Website and/or the Service other than is necessary to use the Service in accordance with the Agreement.
9.2 The Customer undertakes, and undertakes to ensure that Users, refrain from modifying, publishing, forwarding, distributing, presenting or participating in the transfer or sale, creation of secondary works or in some other manner the commercialisation (e.g. in printed form or another website or networked computer or mobile unit), either in whole or in part, of any part of the content of/in the Website and/or the Service without obtaining Infobaleen’s prior written consent.
9.3 In the relationship between the Parties, the Customer enjoys all rights to the information which the Customer conveys via the Service (hereinafter the “Information”). The aforementioned shall also apply to the information generated by means of the Customer’s use of the Service (hereinafter “Processed Information”).
9.4 Infobaleen shall only be entitled to dispose of the Information to the extent necessary in order for Infobaleen to be able to perform its undertakings in accordance with the Agreement. In addition, Infobaleen shall be entitled – during the term of the agreement and the period of time thereafter – to use Information in Anonymised Form for the purpose of developing and improving the Service. In this Agreement, in this Agreement the term “Anonymised Form” means that (i) it is not apparent that the Information comes from the Customer, and (ii) the Information does not contain such information as is covered by Section 10. The Parties are agreed that the Customer is not entitled to any compensation for such use of the Customer’s information.
9.5 The Customer warrants that:
(a) the Information does not (i) contain copyright-protected material which is the property of third parties or material which is the subject of third-party ownership or to which a third party in some other manner holds rights, or (ii) in some other manner violates applicable laws; and
(b) the Customer – in the event the Information contains copyright-protected material which is the property of a third party, material which is the subject of a third-party ownership, or to which a third party holds the rights – (i) is entitled to use the Information or (ii) in some other manner enjoys a legal right to upload the Information.
9.6 In conjunction with a suspicion of (i) a deficiency in any of the warranties provided in Sections 9.5 (a) or (b), or (ii) that the Information in any respect violates this Agreement, Infobaleen shall be entitled to unilaterally determine whether Information fulfils the requirements imposed in this Agreement. Infobaleen shall thus be entitled, without prior notice to the Customer, to remove Information uploaded via the Service. In such cases, however, the Customer shall be informed of such removal.
10. PERSONAL DATA
10.1 The Customer is the personal data controller (Sw: personuppgiftsansvarig) in respect of the processing of all personal data (Sw: personuppgiftsbehandling) which may occur by means of the Service. The Customer shall be responsible for ensuring that all such processing of personal data takes place in accordance with the Swedish Personal Data Act (Swedish Code of Statutes 1998:204) (Sw: personuppgiftslagen).
11. DAMAGES, ETC.
11.1 In the event a Party, or another person for whom the Party is responsible, breaches this Agreement, such breaching Party shall, irrespective of whether negligence, gross negligence or intent may be demonstrated, pay compensation to the other Party for direct losses caused by the breach of the Agreement. Infobaleen’s liability for damages per year shall be limited to SEK 300,000. In this Agreement the term “Direct losses” means reasonable and verifiable additional costs incurred by the non-breaching Party. Damages arising as a consequence of a breach of contract shall not be payable for indirect losses such as, for example, but not limited to, loss of production, loss of profit in the operations of the non-breaching Party or a third party, impediments to the fulfilment of obligations to third parties and the loss of the benefit of the Agreement. However, these limitations shall not apply in conjunction with (i) a breach of any of the provisions of Sections 3.4 or 9.5 or (ii) where the breaching Party has acted with intent or gross negligence.
11.2 In addition to what follows from Section 11.1, the Customer shall be obligated to hold Infobaleen harmless for all losses incurred by Infobaleen as a consequence of a User’s breach of the Agreement. The aforementioned shall also include holding Infobaleen harmless in respect of claims brought against Infobaleen by third parties due to the use by Users of the Service in violation of the Agreement.
11.3 A Party shall be released from the consequences of the failure to perform a certain obligation pursuant to this Agreement where such failure is based upon circumstances beyond such Party’s control and which such Party could not reasonably foresee or avoid such as, for example, but not limited to, armed conflict or similar circumstances, uprisings, measures by governmental authorities, new or amended legislation, conflicts on the labour market, trade or currency restrictions, blockades, fires, lightning strikes, explosions, floods and extreme weather conditions. As soon as the impediment has ceased, the obligation shall be performed in the agreed manner. It shall be incumbent upon the Party who desires to invoke a released from liability pursuant to this provision to immediately notify the other Party with respect to the presence – as well as the cessation – thereof. Upon the failure to do so, a Party shall not be released from the consequences of its failure to perform its contractual obligations.
11.4 Any claims for compensation must be asserted within three (3) months of the date upon which the loss was discovered. The failure of a Party to assert a claim for compensation against the other Party within the prescribed time shall constitute a forfeiture of the Party’s right to assert the claim.
12.1.1 This Agreement constitutes the Parties’ complete agreement with respect to the issues addressed by the Agreement. Any written or oral undertakings and representations previously provided are thus hereby replaced and superseded by this Agreement.
12.1.2 The event any provision of this Agreement becomes unlawful, invalid or for some other reason inoperative, such provision shall be deemed separate from the Agreement’s other provisions and such separation shall not affect the validity and enforcement of the remaining provisions. In such case, the invalid provision shall be replaced by a valid provision agreed upon by the Parties in order to achieve the same result, both economically and in all relevant respects.
12.1.3 A Party shall not be entitled, in whole or in part, to assign or pledge its rights and/or obligations pursuant to this Agreement without the other Party’s written consent. Notwithstanding this provision, Infobaleen shall be entitled to freely assign its rights and obligations pursuant to the Agreement to another party in conjunction with the restructuring of the Infobaleen corporate group or in conjunction with an assignment of all or part of the operations conducted by Infobaleen.
12.3 Premature termination and other notices pursuant to this Agreement (hereinafter “Notices”) must be in writing and sent by e-mail. Notices to Infobaleen shall be sent to email@example.com. Notices to the Customer shall be sent to the e-mail address provided in the submitted customer information. Notices shall be deemed to have been received by a Party within five (5) days after the Notice was sent (where the Notice was not de facto received earlier).
12.4.1 Infobaleen shall at all times be entitled to effect Amendments to the Agreement which are immaterial to the Customer. Such amendments shall enter into force immediately, and Infobaleen shall not be obliged to notify the Customer with respect to such changes in order for them to apply vis-à-vis the Customer. Infobaleen shall be entitled to implement amendments and supplements to the Agreement (hereinafter jointly “Amendments”) which are compelled by (i) amended laws or other legislation, (ii) decisions by courts of law, (iii) decisions by governmental authorities or (iv) where Infobaleen has been purchased by, acquires, or merges with another company. Such Amendments shall enter into force three (3) months after the Notice regarding the change has been received by the Customer. In conjunction with Amendments, the Customer shall be entitled, not later than one (1) month prior to the entry into force of the Amendment, to terminate the Agreement effective on the day on which the Amendment enters into force. In the event the Customer does not terminate the Agreement within one (1) month prior to the time at which the amendment enters into force, the Customer shall be deemed to have accepted the Amendment.
12.4.2 In order to be valid, amendments or supplements to this Agreement (other than such as are set forth in Section 9.4.1) must be approved by the Parties.
13.1 The Agreement shall be governed by Swedish law, without reference to its conflict of law principles.
13.2 Disputes arising as a consequence of the creation, application or interpretation of this Agreement as well as disputes relating to this Agreement, shall be determined by courts of general jurisdiction in Sweden.