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Terms of ServiceErika Bernhardsson2020-11-12T14:58:52+00:00
Terms of Service
1.1 These General Terms and Conditions shall apply to all services provided by Symplify Technologies AB] (“Symplify”) to the legal entity identified as customer in the main body agreement (“Customer”), unless otherwise agreed in writing. The Agreement between the parties consist of the main body agreement, a data processing agreement (DPA), these General Terms and Conditions and other agreement documents attached to the main agreement.
1.2 Symplify provides a digital communication platform and software intended for digital communication (such as in-app, email or text messaging), data analytics, statistics and behavioural analysis. The scope and nature of the particular services ordered by Customer are specified in the Agreement (the “Services”), including Start Date, term of the Agreement, applicable fees, volumes, limitations and/or Included Brands for the Services.
- Permitted Use of the Services
2.1 Customer may use the Services in accordance with the Agreement from the Start Date (as defined in the main body agreement) and during the term of the Agreement.
2.2 Subject to the terms of the Agreement, Customer is hereby granted a non-exclusive, non-transferable, time-limited, revocable and restricted right to use the Symplify Platform and other Services during the term of the Agreement solely for the Included Brands and Customer’s internal business operations.
2.3 The Parties may from time to time agree on new Included Brands, subject to separate agreement and payment of additional fees. This means, inter alia, that in order for Customer to communicate with its customers via the Services using another identifier (e.g. trademark, trade names, logos, domain or other mark or brand) not part of Included Brands, a separate agreement in writing is required. This will apply regardless of the nature of the relationship between Customer and such other trademark, trade names, logos, domain or other mark or brand.
2.4 Unless otherwise explicitly stated in the Agreement, Affiliates of Customer may use the Services only if and to the extent such use is for the sole benefit of Included Brands. All other use by Customer Affiliates is strictly not permitted without prior written approval from Symplify.
2.5 Customer warrants and represents in relation to Symplify that Customer will only use the Symplify Platform and the Services in strict compliance with applicable laws in general and the DM Regulations in particular.
2.6 Customer shall not access, store, distribute or transmit any content, data or materials using the Services that may be regarded as:
(i) harmful, threatening, insulting, obscene, harassing, discriminatory, racially or ethnically offensive or in any other way illegal; or
(ii) infringing any Intellectual Property Rights or causing damage or injury to any person, property or right; or
(iii) violating the Agreement, DM Regulations or any applicable laws or regulations.
2.7 Customer shall not in any way, except when obligated by any mandatory law or expressly permitted under the Agreement, attempt to copy, modify, duplicate, publish, display, lounge, transmit, provide access to for a third party, provide as-a-service-to a third party, or store any part of the Symplify Platform and/or the Services.
2.8 Symplify reserves the right to collect and freely use anonymous and aggregated data about Customer’s use of the Services, e.g. for statistical purposes or to develop the Services. For the avoidance of doubt, such data will not include personal data or Customer Data.
2.9 Nothing in the Agreement shall be considered as a transfer of any Intellectual Property Rights to either Party. All title, interest, IPR and/or other rights in or to the Services (including but not limited to all software contained in or on the Symplify Platform), belong to Symplify or Symplify’s third party suppliers.
- Availability and Technical Support
3.1 Unless otherwise agreed, Symplify shall take all commercially reasonable efforts to ensure that the Symplify Platform is available at all times, except for Permitted Downtime (as defined in Section 3.5 below).
3.2 The Services include technical support via phone and email during normal office hours, as notified by Symplify from time to time. Customer acknowledges that only pre-approved and qualified personnel of Customer may contact Symplify’s technical support.
3.3 Symplify does not warrant that the Services will be free of minor errors or faults (bugs) and expressly disclaims any and all such liability.
3.4 Any Additional Services performed by Symplify from time to time are provided subject to the terms of the Agreement and Symplify’s applicable price list for professional services from time to time, unless otherwise agreed in writing.
3.5 Symplify is not responsible for, and shall have no liability whatsoever in case of unavailability of the Services caused by the following (“Permitted Downtime”):
(i) Scheduled maintenance of the Symplify Platform or other Services,
(ii) Emergency maintenance or rectification measures to the Symplify Platform or other Services due to (a) ongoing or threatened attacks, or (b) security risks requiring immediate action,
(iii) Suspension of Services in accordance with Section 4 below,
(iv) Circumstances for which Symplify is not responsible pursuant to the Agreement, and/or
(v) Force Majeure (as defined in Section 11.6 below).
- Suspension of Services
4.1 Symplify may in its sole discretion and without any liability whatsoever suspend the Services for Customer (or particular users or accounts in the Services), in whole or in part, in case of:
(i) Customer’s violation of or non-compliance with the Agreement, DM Regulations, Security Policy or applicable law;
(ii) Customer’s failure to make payment of a due and undisputed amount which remains unpaid fourteen (14) days after a written payment reminder was sent by Symplify to Customer;
(iii) Customer exceeds applicable volume and/or credit limits set according to the Agreement.
4.2 For the avoidance of doubt, Symplify may also temporarily suspend the Services without any liability whatsoever in connection with Permitted Downtime.
4.3 The duration and extent of any suspension of Service (regardless of cause) shall be minimized. Symplify shall, where possible, notify Customer in due course of any suspension and the reasons, therefore.
4.4 If and to the extent that the Services have been suspended by Symplify in accordance with Section 4.1 above, Symplify may upon resumption of the Services charge an administrative fee of ten (10) % of the total yearly license fees for the Services, without prejudice to any other available remedy.
- Fees and Payment
5.1 Customer shall pay the fees for the use of the Services as set out in the Agreement. Payment terms are twenty (20) days from the invoice date, unless otherwise explicitly set out in the Agreement. If Customer instructs Symplify to send invoices by other means than email, Symplify may charge additional administrative fees.
5.2 In the event Customer on the due date should fail to make payment in full, Symplify shall, without prejudice to other legal rights, be entitled to claim interest on the sum overdue until payment is made equal to the reference rate of Sweden’s central bank (Swe. Riksbanken) plus eight (8) %. Customer is not entitled to set off any counterclaims against Symplify’s invoices, except in accordance with mandatory applicable law.
5.3 Symplify reserves the right to demand payment in advance and/or implement credit limits related to Customer’s use of certain Services (e.g. text/SMS messaging). Upon Customer’s request, Symplify shall inform Customer about any such credit limit.
5.4 In regard to fees charged per message/communication using the Services, Symplify will charge and invoice, and Customer shall pay, such fees based on sent messages/communications, regardless of actual delivery or receipt thereof.
5.5 Symplify has the right to adjust the fees once a year by written notice to Customer, unless otherwise explicitly agreed. If prices are increased by more than 10 % in a particular year, Customer is entitled to terminate this Agreement in relevant parts (i.e. those parts related to the Services affected by the price increase) through serving a written notice to Symplify within two (2) weeks from the date of notice of the price adjustment. The termination shall take effect three (3) months after the receipt of such notice of termination.
5.6 In order for Customer to make a valid dispute of an invoice issued by Symplify, then:
(i) Customer shall pay all sums which are not disputed in full; and
(ii) The disputed part of the invoice shall be at least five (5) % of the invoiced amount; and
(iii) Customer’s claim shall be (i) made in writing, (ii) include a detailed statement of the reasons for disputing the invoice, and (iii) be received by Symplify on or before the invoice due.
- Symplify’s Obligations
6.1 Symplify undertakes to perform the Services with due care and skill in accordance with the Agreement.
6.2 If the Services do not comply with the terms set out in the Agreement, Symplify shall at its own expense correct any such non-compliance with the expedience required by the circumstances.
6.3 Symplify confirms that Symplify holds all necessary IPR and other rights, either on its own or through license, in order to provide the Services.
6.4 Symplify shall maintain an appropriate level of security in the Services, as specified in the Security Policy.
6.5 Symplify shall ensure that every employee, consultant and other parties that manage Customer Data is bound by an appropriate obligation of confidentiality.
6.6 Symplify shall without undue delay notify Customer of a discovered act of or attempt to obtain unauthorized access, destruction or modification of Customer Data.
- Customer’s Obligations
7.1 Customer undertakes to:
(i) take all necessary technical and organisational safety measures in relation to its systems, computers, network and other parts of its business, and not to upload or send any message containing virus (Trojan, worm or similar) or any other harmful code;
(ii) ensure that the usage of the Services and, in particular, that all messages and content sent using the Services complies with all legal and regulatory requirements in the relevant jurisdictions from time to time, including but not limited to DM Regulations;
(iii) immediately inform Symplify if any password, Confidential Information or Customer Data becomes or is likely to become known to any third party;
(iv) comply with Symplify’s all instructions relating to the use of the System and the Services;
(v) ensure that its users of the Services comply with the terms of the Agreement and be liable for any violation of or non-compliance with the Agreement by its users;
(vi) ensure that its infrastructure, equipment and internet connection comply with normal trade practices for digital communications, and any specifications provided by Symplify from time to time;
(vii) be responsible for procuring and maintaining its network connections for the use of the Services;
(viii) take necessary measures to prevent unauthorized access or unauthorized usage of the Services and immediately notify Symplify in such event; and
(ix) ensure to back up all materials and Customer Data and any other information uploaded to or provided in Symplify Platform or otherwise provided to Symplify.
7.2 In addition, Customer warrants and represents that all necessary consents and rights have been obtained in order to use Customer Data in manner used by Customer through the Services.
8.1 Symplify reserves the right to update or change the Services or these General Terms and Conditions at any time, subject to this Section 8. Symplify may unilaterally make general updates or improvements to the Symplify Platform or the Services from time to time, provided that such changes are notified by Symplify in the Services, on Symplify’s website and/or through email to Customer.
8.2 Any and all changes to these General Terms and Conditions, and/or changes to the Services which have a negative effect on Customer’s use of the Services, shall be notified by Symplify in writing at least 30 days before such changes enter into force (e.g. by email to Customer). Unless Customer objects in writing to such changes before expiration of the 30-dayperiod, the changes shall be deemed accepted by Customer. In case Customer objects to a suggested change in accordance with this Section 8, and the Parties subsequently fail to agree on the change during a period of three (3) months, then either Party may terminate this Agreement in relevant parts (i.e. those parts related to the Services affected by the change) in writing with an additional three (3) months’ notice period. For the avoidance of doubt, Symplify may not implement a change that Customer has objected to in accordance with this Section 8.2.
8.3 The following changes shall not be subject to this Section 8: (i) Changes to applicable fees (see Section 5.5 above), and (ii) Changes affecting the processing of personal data in the Services (see the terms set out in the DPA).
9.1 Each Party is entitled to terminate the Agreement in writing, if the other Party commits a material breach of the Agreement, e.g. a Party’s repeated breach of the Agreement or (in the case of a remediable breach) failure to remedy the breach within thirty (30) days of the receipt of the notice. Such termination shall take effect upon the later of the expiry of such notice, or at the date specified in the notice.
9.2 Each Party is entitled to terminate the Agreement in writing with immediate effect if the other Party is declared bankrupt, is subject to corporate reorganisation, commence composition proceedings, goes into liquidation or otherwise can be assumed to have become insolvent.
9.3 Upon termination of the Agreement for any reason:
(i) all rights granted under the Agreement shall immediately terminate;
(ii) each Party shall return and make no further use of any information, equipment, material or other items belonging to the other Party, and return all such documentation, equipment, material, and other belongings to the other Party; and
(iii) Customer shall ensure that necessary export of Customer Data or other Customer Data stored by Symplify (if any) is managed or exported within thirty (30) days after the termination of the Agreement. Thereafter, Symplify is entitled to delete all Customer Data without any right for Customer to claim liability or any sanctions. Symplify may, against additional compensation, offer assistance in this regard.
9.4 If Symplify is entitled to terminate the Agreement, regardless of cause, any sums due will immediately become payable in full.
9.5 The following Sections shall survive the termination of the Agreement, for any reason: Sections 2, 5, 9, 10, 11, 12 and 15.
10.1 The Parties undertake not to disclose any Confidential Information regarding the Agreement or other Confidential Information that the Party has received or that is developed in connection with the performance of the Agreement. The provisions of this Section 10 shall continue to apply for a period of five (5) years after the termination or expiry of this Agreement.
10.2 Notwithstanding the above, the obligation of confidentiality under this Agreement does not include information which:
(i) is in the public domain or enters into the public domain other than as a consequence of a Party’s breach of the contents if this provision;
(ii) the receiving Party can show was already known to it prior to receipt from the disclosing Party;
(iii) a Party has received from a third party, provided that such third party is not bound by an obligation of confidentiality in relation to the Party that the information relates to;
(iv) the Parties have agreed to disclose as part of their marketing or press releases; or
(v) information that any Party is required to disclose by applicable law or binding decisions by courts or governmental authorities.
10.3 Notwithstanding the above, Symplify may refer to Customer’s name and logo as a customer on Symplify’s website, in printed or online marketing material and in sales presentations.
- Limitation of Liability
11.1 Symplify’s total liability under the Agreement shall never exceed the highest of (i) 100 % of the yearly licence fees for the Services, or (ii) EUR 100,000.
11.2 Neither Party shall be liable for indirect or consequential loss or damage (including, but not limited to, loss of profit, loss of business opportunities, loss of income, loss of goodwill, loss of anticipated savings and loss of data).
11.3 Each Party’s right to present demands is forfeited if the Party’s claim for compensation is not provided in writing and without undue delay when the circumstance was discovered, however never later than three (3) months after the compensational founding circumstance occurred.
11.4 The limitations of liability set out in this Section 11 shall not apply in case of (i) wilful misconduct or gross negligence, (ii) breach of Customer’s warranties in Sections 2.5 and 7.2, (iii) either Party’s breach of confidentiality pursuant to Section 10, and/or (iv) liability arising under the indemnities in Section 12 below.
11.5 Any sanctions or specific remedies provided for Customer in the Agreement shall constitute Customer’s sole and exclusive remedy and Symplify’s total and exclusive liability for the circumstances giving rise to the relevant sanction.
11.6 Each Party shall be free from any liability under the Agreement if the performance, in total or partially, is prevented or substantially impaired due to any cause beyond the Parties’ reasonable control (except for payment obligations, which shall be deemed within a Party’s control at all times) for as long as that cause exists. These circumstances include war, riot, 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 disputes beyond its control (“Force Majeure”), provided the delayed Party uses reasonable endeavours to:
(i) promptly notify the other Party of the Force Majeure;
(ii) mitigate the effects of the Force Majeure; and
(iii) promptly resume performance of its obligations under the Agreement upon cessation of the Force Majeure.
12.1 Customer shall indemnify and hold Symplify harmless against all claims, losses, liabilities, costs (including legal costs), and expenses arising or incurred by Symplify as a result of Customer’s use of the Services or Customer Data in violation of the Agreement, DM Regulations, Security Policy or applicable laws. Symplify shall have the sole control of the proceedings arising as a result of any claim, including any out-of-court settlement.
12.2 Symplify shall indemnify and hold Customer harmless against any third-party claims made by a third party against Customer alleging that Customer’s use of the Services in compliance with this Agreement infringes such third-party’s IPR.
12.3 The indemnities under this Section 12 apply on condition that (i) the indemnifying Party without undue delay is informed in writing about claims presented and legal actions initiated, (ii) the indemnifying Party is allowed to solely decide on the defence against such claims and actions, including to decide on the appointment of legal counsel and to give instructions to the legal counsel, (iii) the indemnifying Party is allowed to solely conduct settlement negotiations and decide on whether or not to enter into settlement agreements with third parties, (iv) the Party-to-be-indemnified gives the indemnifying Party reasonable assistance in defending the claims at the expense of the indemnifying Party.
13.1 Neither Party may transfer or assign this Agreement to a third party, without the written consent of the other Party (such consent not to be unreasonably withheld or delayed). However, Symplify may assign or transfer the Agreement to an Affiliate without obtaining prior approval.
14.1 Any notice, invoice or other document which may be given by either Party under the Agreement shall be sent by (i) courier, (ii) post to the other Party’s registered office or any other address notified in writing as an address to which notices, invoices and other documents may be sent, or (iii) email to the assigned contact person of a Party. Any such communication shall be deemed to have been duly received (i) upon confirmed delivery (if by courier), (ii) three (3) days from the date of posting (if by post) and (iii) one (1) day from the date of transmission of email. Notices in respect of termination, liability and breach of the Agreement shall be made by courier, registered mail recorded delivery unless the other Party approves in writing that such notice has been rightfully received by the Party.
14.2 The failure by any Party to enforce any provisions of the Agreement or to exercise any right in respect thereto shall not be construed as constituting a waiver of its rights thereof.
- Governing Law and Jurisdiction
15.1 The Agreement shall be governed by the substantive law of Sweden. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). Notwithstanding the foregoing, Symplify shall have the right to turn to Stockholm District Court in order to claim payment for due invoices.
15.2 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, Sweden.
15.3 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard its rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged so to disclose pursuant to statute, regulation, a decision by an authority, a stock exchange contract or similar.
16.1 In addition to the terms explicitly defined throughout the Agreement, the following words and terms shall have the respective meanings assigned thereto:
(i) “Additional Services” means professional services, training or other services not included in the Services;
(ii) ”Affiliate” means a company belonging to the same group of companies (as defined in the Swedish Companies Act (2005:551) of either Party;
(iii) “Confidential Information” means any trade secrets, internal business information and other information that obviously is of a confidential nature, whether or not the information has been marked as confidential, and regardless whether the information has been provided orally or in writing. For the avoidance of doubt, information that a Party states to be confidential will always be deemed as Confidential Information;
(iv) ”Customer Data” means all information and content that Customer has provided to Symplify or customer-specific data generated as a result of Customer’s use of the Services;
(v) “DM Regulations” means all national, regional or local applicable laws, regulations, codes of conduct or ethical guidelines for digital and/or electronic direct marketing messaging applicable from time to time, including where relevant (i) the EU General Data Protection Regulation 2016/679 and associated local laws or regulations, (ii) EU ePrivacy Directive 2009/136/EC and associated local laws or regulations (as well as any replacement act or regulation), EU Unfair Commercial Practices Directive 2005:29/EC and associated local laws or regulations, the Canadian Anti-Spam Law and the ICC Code of Advertising and Marketing Communication Practice.
(vi) “Included Brands” means the trade names, logos, trademarks, domains or other marks or brands listed in the main body agreement.
(vii) “Intellectual Property Rights” or “IPR” mean all registered or unregistered rights, including but not limited to copyrights and neighbouring rights, patents, utility models, trademarks, service marks, design rights, domain names, know-how and database rights existing in Sweden or Customer’s jurisdiction;
(viii) “Security Policy” means the applicable security policy for the Symplify Platform from time to time, as available on symplify.com/communication/security-policy.
(ix) “Symplify Platform” means the digital communications platform made available by Symplify as part of the Services subject to this Agreement, including all proprietary or licensed software, functionality, interfaces, templates, infrastructure, networks, code, descriptions and any data content made available, generated or used therein; excluding, however, all Customer Data.