General Terms and Conditions
- Definitions and Interpretation
1.1 These General Terms and Conditions shall apply to Agreements regarding Services and Additional Services entered into between Symplify and the Customer, unless otherwise agreed in writing between the parties. In the event of any inconsistency between the documents in the Agreement, the documents shall prevail in the following order:
1. The Agreement signing page
2. Schedule 1- The Proposal to the Customer
3. Schedule 2- General Terms and Conditions
1.2 In this Agreement, the expressions listed hereunder have the following meanings:
1.3 “Additional Services” means services, including consultancy or training services, which may be agreed in writing between the parties;
1.4 “Data” means any data provided by the Customer to Symplify or otherwise generated by Symplify as a result of the performance of the Services on behalf of the Customer, including the tracking and analyzing of the recipients’ behavior;
1.5 “Intellectual Property Rights” means all registered or unregistered rights, including but not limited to copyrights and neighboring rights, patents, utility models, trademarks, service marks, design rights, domain names, database rights, proprietary information rights and all other proprietary rights as may exist;
1.6 “Services” means the services to be performed by Symplify, as set out in this Agreement, including provisioning email, app push and sms services, storage of information and analyzing and keeping statistics regarding the receivers’ behavior;
1.7 “Software” means the software used by Symplify in the provision of the Services and specified in the Agreement and any upgrades or modifications thereto;
1.8 “System” means Symplify’s connected system of servers used to provide the Services, together with all proprietary software and other coding developed by Symplify in order to provide services to customers. - The Services
2.1 Symplify undertakes to perform the Services substantially in accordance with the Agreement and with reasonable skill and care. - User Subscriptions
3.1 Subject to the restrictions set out in this Clause 3 and the other terms and conditions of this Agreement, Symplify hereby grants to the Customer a non-exclusive, non-transferable right to use the Services during the term of this Agreement solely for the Customer’s business operations.
3.2 The Customer undertakes to maintain a written, up to date list of current user accounts of the Services and provide such list upon Symplify’s request.
3.3 The Customer shall not access, store, distribute or transmit any material when using the Services that:
(i) is unlawful, harmful, threatening, defamatory, obscene, harassing, discriminatory or racially or ethnically offensive; or
(ii) infringing any Intellectual Property Rights or causes damage or injury to any person or property;
3.4 The Customer shall not, except as may be allowed by any mandatory law or expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute any portion of the Software, nor will it attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Software.
3.5 Subject to Clause 15 the rights provided under this Clause 3 are granted to the Customer only, and shall not be considered granted to any affiliates of the Customer.
3.6 Symplify reserves the right, without liability, to disable the Customer’s access to the Service should the Customer breach the provisions in this Agreement. - Fault resolution, Maintenance and Support
4.1 Symplify might from time to time require to execute maintenance or fault resolution of the System which may require that some or all of the Services must be temporarily suspended. In anticipation of such suspension, Symplify shall give the Customer reasonable prior written notice, (except in the case of emergency work in which case Symplify shall give as much notice as is practicable).
4.2 The maintenance and support is further described in the Agreement.
4.3 The parties acknowledge that where the Agreement sets out a remedy in respect of not complying with a service level set forth in the Agreement, that remedy shall constitute the Customer’s sole remedy for Symplify’s failure to provide the Services for which that remedy is available and is a genuine pre-estimate of the loss likely to be suffered by the Customer. - Additional Services
5.1 Any Additional Services Symplify undertakes to perform shall be performed in accordance with all appropriate provisions of this Agreement, unless otherwise agreed in writing. - Payment
6.1 The Customer shall pay a subscription fee for the use of the subscription of Services in accordance with the prices and terms listed in this Agreement, within 20 days of invoice issue date. The Customer shall not have any right of offset due to any counterclaim against the invoice.
6.2 In the event the Customer at any time should fail to make payment in full on the due date (20 days from invoice issue) Symplify shall, without prejudice to other legal rights, be entitled to claim interest on the sum overdue until payment is made at the rate of twelve (12) per cent per annum.
6.3 If the Customer fails to make any payment when due, Symplify may, in addition to its right to claim interest, upon written notice to the Customer in its sole discretion either:
(i) suspend the provision of Services, or any part thereof; or
(ii) require such other assurances as Symplify may specify in order to secure the Customer’s payment obligations hereunder.
6.4 Symplify shall have the right to adjust the subscription fees once a year.
6.5 If Symplify becomes entitled to terminate this Agreement, for any reason whatsoever, any sums then due to Symplify will immediately become payable in full. - Intellectual Property Rights and Data
7.1 All rights, title and interest in the Intellectual Property Rights or any other know-how related to the Services including the Software shall remain the property of Symplify.
7.2 The Customer shall own all rights, title and interest in and to the Data and shall have sole responsibility for the legality, integrity and accuracy of the Data. To the extent that such Data is created and automatically becomes the property of Symplify, the Data is hereby assigned to the Customer.
7.3 Symplify reserves the right to erase Data and information that is older than twelve (12) months from its system, unless otherwise instructed in writing by the Customer. Upon such request from the Customer, Symplify shall be entitled to charge an additional fee.
7.4 In the event of any loss or damage to Data, Symplify´s liability is limited to use reasonable commercial endeavours to restore the lost or damaged Data. Symplify shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by the Customer or any third party (except those third parties sub-contracted by Symplify for example to perform services related to Data maintenance and back-up).
7.5 Symplify shall upon the Customer’s reasonable request and on the expense of the Customer provide the Customer with information regarding the Data from the Customer’s database at Symplify. - Data Protection
8.1 If Symplify processes any Data comprising Personal Data (hereinafter “Personal Data”) on the Customer’s behalf when performing its obligations under this Agreement (including the processing of the Customer’s Data generated by Symplify on the Customer’s behalf as a result of its performance of the Services), the Customer shall be the data controller and Symplify shall be a data processor and:
a. the Customer acknowledges and agrees that the Personal Data may be transferred or stored and further processed outside the EEA or the country where the Customer and the receivers are located in order to carry out the Services and Symplify’s other obligations under this Agreement;
b. the Customer shall ensure that it is entitled to transfer the relevant Personal Data to Symplify, including such transfer mentioned in a) above, and that Symplify may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf;
c. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
d. Symplify shall process the Personal Data only in accordance with the terms of this Agreement and any lawful written instructions reasonably given by the Customer; and
e. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Data or its accidental loss, destruction or damage. - Indemnity
9.1 The Customer will indemnify Symplify against all claims (including claims regarding infringement of any Intellectual Property Right and/or mistreatment of Data), losses, liabilities, costs (including legal costs) and expenses arising or incurred by Symplify as a result of the Customer’s use of the Services. The Customer shall have the right to sole control of the proceedings arising as a result of any such claim, including any out of court settlement.
9.2 This article shall survive the termination of this Agreement, for any reason. - Symplify’s Obligations
10.1 If the Services do not conform to the undertaking set forth in Clause 2.1 above, Symplify will, at its own expense and with the expedience required by the circumstances, use all reasonable commercial endeavours to correct any such non-conformance. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 2.1.
10.2 Symplify shall not be liable for any non-conformance of the Services unless the Customer’s use has been in accordance with Symplify’s instructions, or if the Customer has modified the Software or the System without Symplify´s written consent.
10.3 Notwithstanding the foregoing, Symplify is not responsible for any delays, delivery failures, or any other loss or damage outside Symplify’s control or resulting from the transfer of Data, such as delays and other problems inherent in the use of communications facilities, including delays due to limitations in the network capacity, the capacity by the recipient or the recipient’s server.
10.4 Symplify will take no responsibility whatsoever for the messages after they are delivered from the System as a result of the Customers use of the Services, including responsibility for deliveries to incorrect address or containing incorrect information or other delivery failures due to technical errors.
10.5 Symplify shall perform a back-up of the Customer’s Data stored by Symplify on regular basis. - Customers Obligations
11.1 The Customer undertakes that it shall:
11.1.1 Keep sufficient security to its system and computers and not send any message or virus (Trojan, worm or similar) through the System which causes or is likely to cause harm to Symplify, its customers, suppliers or any communications systems;
11.1.2 Ensure the usage of the Services and the material sent to the receivers comply with all legal and regulatory requirements in the relevant jurisdictions from time to time and the ICC Code of Advertising and Marketing Communication Practice;
11.1.3 Inform Symplify immediately if any password or other confidential information becomes or is likely to be known to any third party;
11.1.4 Comply with all Symplify’s instructions relating to the use of the System;
11.1.5 Ensure that the users of the Service approved under this Agreement comply with this Agreement and shall be responsible for any user’s breach of this Agreement;
11.1.6 Ensure that its equipment comply with the relevant specifications provided by Symplify from time to time;
11.1.7 Be solely responsible for procuring and maintaining its network connections and its connections to Symplify, and be responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or caused by internet; and
11.1.8 Use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Symplify.
11.1.9 Ensure back up of all material and Data and any other information provided to Symplify or as otherwise is provided to Symplify. - Termination and Consequences of Termination
12.1 Symplify may (without prejudice to its other rights) terminate this Agreement by notice in writing to the Customer if the Customer defaults in due performance or observance of any material obligation under this Agreement and (in the case of a remediable breach) fails to remedy the breach within thirty days (30) of receipt of notice and such termination shall take effect either forthwith upon expiry of, or at a date specified in, such notice, whichever shall be the later.
12.2 On termination of this Agreement for any reason:
a. all licences granted under this Agreement shall immediately terminate;
b. each party shall return and make no further use of any information, equipment, material and other items belonging to the other party;
c. Symplify may destroy or otherwise dispose of the Data in its possession unless Symplify receives, no later than ten days after the effective date of the termination of this Agreement, a written request to extend the retention of Data. The Customer shall pay the additional fee reasonable required by Symplify due to such extension. The obligations under section 8 shall remain in force during such extension; and
d. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12.3 This article shall survive the termination of this Agreement, for any reason. - Confidentiality
13.1 During the duration of this Agreement and for a period of three (3) years thereafter, each party undertakes not to disclose information to any third party regarding the other party’s activities which may be deemed business or professional secrets without the other party’s consent. Information which the party states to be confidential will always be deemed to be business or professional secrets. The duty of confidentiality does not include such information which a party can prove has come to its knowledge other than through the Service or the performance under this Agreement, or which is generally known. Nor does the duty of confidentiality apply where a party is obligated under law to release the information.
13.2 Notwithstanding the confidentiality, Symplify may refer to the Customer as a customer and this Agreement for marketing purposes. - Limitation of liability
14.1 Symplify’s liability arising out of or in connection with this Agreement shall in no event exceed the total license fees received by Symplify in the calendar year prior to the year in which the incident occurs.
14.2 Subject to the express terms of this Agreement neither Symplify, nor the Customer shall be liable to the other for any indirect or consequential loss (including but not limited to loss of profits, loss of data, business, revenue, goodwill, anticipated savings) whether arising from negligence, breach of contract or otherwise.
14.3 The provisions of this Clause 14 shall continue to apply notwithstanding the termination or expiry of this Agreement. - Assignment
15.1 The Customer shall not be permitted to assign its rights hereunder whether in whole or in part without Symplify’s prior written consent. Such consent shall not unreasonably be withheld if the assignee is an affiliate of the Customer. The Customer guarantee that all rights and obligations shall, upon Symplify’s request, be reassigned to the Customer if the assignee seizes to be an affiliated of the Customer. The Customer shall immediately give Symplify a written notice if such connection ceases to exist. Symplify may assign its rights hereunder in whole or part.
15.2 The provisions of this Clause 14 shall continue to apply notwithstanding the termination or expiry of this Agreement. - Notices
16.1 Any notice, invoice or other document which may be given by either party under this Agreement shall be deemed to have been duly given if left at or sent by post, or facsimile transmission to the other party’s registered office or any other address notified in writing in accordance with this Clause 16 as an address to which notices, invoices and other documents may be sent. Any such communication shall be deemed to have been made to the other party three (3) days from the date of posting (if by letter) and one (1) day from the date of transmission email, unless reception by the receiver can be proved. Notices in respect of Termination, breach of contract and liability shall be made by recorded delivery.
16.2 Standard notice period is 3 months from letter of termination. - No Waiver
17.1 The failure by a party to enforce any provisions of this Agreement or to exercise any right in respect thereto shall not be construed as constituting a waiver of its rights thereof. - Non-exclusivity
18.1 Nothing in this Agreement will prohibit either party to enter into similar arrangements with other parties regardless of line of business. - Force Majeure
19.1 Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement (except pursuant to Clause 6) due to any cause beyond its reasonable control (including acts of God, war, riot, civil commotion, fire, flood, failure of the Internet, mobile networks, or any volume delays affecting the Services or any messaging in any form or any disaster or industrial dispute beyond its control) (“force majeure”) provided the delayed party uses reasonable endeavours to (a) promptly notify the other party of the force majeure; (b) mitigate the effects of the force majeure; and (c) promptly resume performance of its obligations hereunder upon cessation of the force majeure. - Governing Law and Jurisdiction
20.1 Any dispute with respect to the interpretation or application of this Agreement shall be determined according to Swedish law, without application of its provisions on choice of law.
20.2 Any dispute with respect to this Agreement or non-contractual obligation shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). - 21.1 The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
