GENERAL CUSTOMER TERMS AND CONDITIONS 2016-01-01
1. BACKGROUND
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. OPERATION
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 support@infobaleen.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. SUPPORT
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 support@infobaleen.com. 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. MISCELLAENOUS
12.1 Generally
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.
12.2 Notices
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 info@infobaleen.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 Amendments
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. DISPUTES
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.
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