General Terms and Conditions
- These general terms and conditions (the "Terms") govern the Customer’s access and use of the iDefendo file management service, offered by Idefendo Media Protection AB ("Service Provider") on a software-as-a-service basis, as further described herein. Service Provider and the Customer are jointly the "Parties" and individually the "Party".
"Agreement" means these Terms and any Order Form concluded including any exhibits attached thereto.
"Contact Person" means a person appointed by the Customer to manage the contacts with Service Provider.
"Customer" means the legal entity defined as Customer in the relevant Order Form.
"Customer Data" means any data and information submitted or processed by or for Customer in relation to the Service.
"Malicious Code" means code, files, agents, programs or similar that are intended to do harm including by way of e.g. viruses and trojan horses.
"Order Form" means the order form concluded between the Parties setting forth the scope and details of the ordered Service as the Fees related thereto.
"Service" means the document management system iDefendo Enterprise, including iDefendo Vault and iDefendo Transfer, as further described in the Service Specification and offered by Service Provider on a software-as-a-service-basis in accordance with the terms of this Agreement.
"Service Specification" means the functionality specification of the Service, as made accessible at https://www.idefendo.com/plans and as updated from time to time.
"Service Fee" means the applicable recurring fee set out in the relevant Order Form payable by Customer to Service Provider in accordance with the terms of this Agreement.
"Start Date" means the date specified in the relevant Order Form, as of which the Service shall be made available to the Customer in accordance with this Agreement.
"Subscription" means a license to use the ordered Service in accordance with this Agreement and the applicable Order Forms.
"Third-Party Products" means hardware and software products and tools offered by third parties which might be used by the Customer in connection with the Service.
"User" means an individual who is authorized by Customer to use the Service and to whom the Customer has supplied a user id and a password. Users may include for example employees of the Customer.
ORDERS FOR SUBSCRIPTIONS AND GRANT OF RIGHT TO USE THE SERVICE
- Subject to the terms of this Agreement including any license restrictions set forth herein, Customer is granted a non-exclusive, non-transferable, limited license, within the Territory, to access and use the ordered Service within the Customer’s business during the Subscription term (as set forth in the relevant Order Form respectively).
- Notwithstanding the above, Service Provider’s obligation to provide the ordered Service to Customer and the Customer’s right to use the Service ordered as set forth in section 3.1 is conditional upon Customer’s fulfilment at all times of its obligations under the Agreement.
- As applicable, the Service may only be used by the number of Users for which the Customer, from time to time, has paid the Service Fee and in accordance with the other terms and conditions of the Agreement and each applicable Order Form.
OBLIGATIONS OF SERVICE PROVIDER
Service Provider will:
- As of the agreed Start Date, make the Service available to Customer pursuant to this Agreement, and each Order Form accepted by Service Provider;
- make the Service available materially in accordance with the Service Specification; and
- ensure that the Service are in accordance with applicable laws and government regulations (subject to the Service being used in accordance with the Agreement and the applicable User guides).
- Notwithstanding section 4.1 above, Service Provider reserves the right to amend and update the Service at any time, provided that the Service functionality is not materially decreased or that such change is otherwise reasonably to the detriment of the Customer. The most recent description of the Service is always available at https://www.idefendo.com/plans.
- Service Provider will:
CUSTOMER RESPONSIBILITIES, USAGE AND CONTENT OF THE SERVICE
- be responsible and liable for all Users’ compliance with this Agreement;
- be responsible for the legality of all Customer Data and the means by which Customer acquired Customer Data;
- use the Service only in accordance with this Agreement, the applicable Order Forms, the User guides and applicable laws and government regulations;
- use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify Service Provider promptly of any such unauthorized use;
- not make any Service available to anyone other than the Users in accordance with this Agreement and the applicable Order Forms,
- not lease, sublicense, rent, distribute or otherwise use the Service to the benefit of others;
- not permit direct or indirect access to or use the Service in a way that circumvents a contractual usage limit;
- not use the Service to store or transmit Malicious Code;
- not reverse engineer the Service or use the Service to access Service Provider’s intellectual property (save for as permitted under the Agreement or mandatory law)
- Customer shall appoint a Contact Person, with the agreed level of competence, who shall be responsible for, amongst other things, managing the contacts with Service Provider. Customer shall provide Service Provider with contact details for the Contact Person.
- Customer will:
RESTRICTION OF ACCESS TO THE SERVICE
In the event the provision of the Service causes damages or risk of damages for Service Provider or customers of Service Provider, e.g. in the event of the introduction of Malicious Code or other security threat to the Service, Service Provider shall be free to restrict the Customer’s access to the Service, without liability to Customer. Service Provider will notify the Contact Person promptly of any such restrictions and shall only undertake the measures as justified by the circumstances in each case.
THIRD PARTY PRODUCTS OR SERVICE
- To use the Service the Customer might be dependent of Third Party Products.
- Customer acknowledges and accepts that Service Provider does not warrant the availability or functionality of such Third-Party Products and assumes no liability for the suitability of Third Party Products for the purposes of accessing and using the Service.
- The functionality of the Service is dependent on that the Customer has an adequate internet connection (minimum 5 mbit/s) and web browser (updated versions of Chrome, Safari or FireFox) and it is the sole responsibility of the Customer to ensure it holds proper internet connection.
- Service Provider may however from time to time, without any liability whatsoever, recommend Third Party Products and services which Service Provider deems suitable to be used in connection with the Service.
FEES AND PAYMENT
- Customer will pay the Service Fees for the ordered Subscriptions of the Service in accordance with applicable Order Form and price list. Paid Service Fees are non-refundable.
- The Service Fees are stated exclusive of value-added tax.
- Any Service Fee shall be payable in advance against invoice for ordered Service and with payment terms thirty (30) days from the date of the invoice. Service provider reserves the right to charge a service charge (at the current price list) for the invoicing to cover its administrative costs in relation thereto.
- In case of late payment, the Customer shall pay late payment interest on any outstanding amount in accordance with the Swedish Interest Act. Service provider shall, upon written notice to the Customer, be entitled to discontinue Customers provision of the Service until any outstanding amounts have been paid in full.
SUPPORT AND MAINTENANCE
- Service Provider offers free of charge remote support of the Service, by telephone or by e-mail. Service Provider’s support desk is open during weekdays 24 hours a day.
- Service Provider shall make reasonable efforts to keep the Service available and operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Service Provider reserves the right to, periodically and at any time, modify or discontinue, temporarily or permanently, functions and features of the Service, without liability to Customer. If possible, implementation of updates is carried out between 7 pm – 6 am on weekdays and during weekends.
PROPRIETARY RIGHTS AND LICENCES
- Subject to the limited rights granted hereunder, Service Provider reserves all right and title to the Service and any underlying software and code, including any intellectual property rights related thereto. No rights are granted to Customer other than as expressly set forth herein.
- Except for any Third-Party Products and any Customer Data fed into the Service by the Customer, Service Provider owns all rights, including intellectual property rights, in and to the Service and all parts thereof as well as in any results arising out of Service Provider’s performance of the Service.
- Customer grants to Service Provider a worldwide licence to host, copy, transmit and display Customer Data as necessary for Service Provider to provide the Service in accordance with the Agreement. This shall specifically include a right for the Service Provider to use anonymized Customer Data for developing additional services, creating value for Customer and for improving the Service.
The Parties acknowledge that Customer Data will include personal data to be processed within the Customer’s use of the Service and that the Customer is the personal data controller with respect to such personal data. Service Provider will maintain administrative and technical safeguards for the protection of the security, confidentiality and integrity of such personal data and only process said data on behalf of the Customer and according to the data processing addendum (the "DPA") made available at https://www.idefendo.com/data-processing-agreement which is hereby incorporated by reference and which shall apply to such processing.
- Each Party undertakes not to disclose to any third party without the consent of the other Party any information received from the other Party, including its business, which can reasonably be deemed to be of a confidential nature, including trade secrets and information which is covered by any statutory duty of secrecy. Information stated by one of the Parties to be confidential shall always be deemed to constitute confidential information.
- The Parties' confidentiality obligations under this Section 12 shall not apply to trade secrets or any other confidential information which the receiving Party can demonstrate (i) is already known when received, (ii) is or has become public knowledge other than through breach of this Agreement, (iii) is received from a third-party who lawfully acquired it and who is under no obligation restricting its disclosure, or (iv) is to be made publicly available due to a court order, a decision by a public body or as otherwise required by mandatory law.
- Each Party agrees to impose on its employees and consultants, in an appropriate manner, the above obligations of confidentiality in this Section 12. The Parties shall ensure that any subcontractors engaged, together with any of their employees involved in the assignment, sign a confidentiality undertaking containing equivalent provisions to the benefit of the other Party.
- The Parties’ obligations under this Section 12 shall be valid during the term of this Agreement and continue for a period of three (3) years after expiration or termination of the Agreement, regardless of the reason therefor.
WARRANTIES AND DISCLAIMERS
- Service Provider represents and warrants that it is the owner of the Service and of each component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Service Provider’s representations and warranties in the preceding sentence do not apply to use of the Service in combination with hardware or software not provided by Service Provider. In the event of a breach of the warranty in this Section 13.1, Service Provider, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Service; (b) replace or modify the Service to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Subscription Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Service Provider’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Service.
- Except as expressly provided herein, Service Provider makes no warranty of any kind in relation to the provision of the Service, whether express, implied statutory or otherwise and the Customer hereby, to the maximum extent permitted by applicable law, disclaims all implied warranties such as implied warranties for fitness for a particular purpose, merchantability, non-infringement, and the Service being free from errors and bugs.
- Customer shall indemnify Service Provider against any and all claims, demands, suits or proceeding made or brought against Service Provider by a third party alleging that the Customer Data or Customer’s use of any Service in breach of this Agreement infringes such third party’s intellectual property rights or violates applicable law, and will indemnify Service Provider from any cost or damages which Service Provider may be obligated to pay in accordance with a judgment, arbitral award or settlement. Customer’s undertaking shall only apply provided that Customer, without undue delay, is notified by Service Provider in writing of the claim or action, and that Customer is given the sole right to control the defence against such action and decide on any agreement or settlement.
LIMITATION OF LIABILITY
- Unless otherwise expressly provided herein, each Party shall be liable for direct losses caused by negligence and the liability of either Party shall be limited to an amount corresponding to the total compensation paid by the Customer during the twelve (12) months immediately preceding the incident causing the loss.
- Neither Party shall be liable for any loss of production, loss of data, loss of business or profit, loss of use, loss of goodwill, the obligation to compensate a third-party or any other indirect damages.
- The above limitations shall not apply in relation to Customer’s indemnity obligations under Section 14 above or in the event of any loss which is caused by a Party’s gross negligence, intentional breach or breach of the confidentiality undertaking set out in this Agreement.
TERM AND TERMINATION
- The Agreement commences on the date when both Parties have signed the Agreement and continues until all Subscriptions hereunder have expired or have been terminated.
- The term of each Subscription shall be as specified in the applicable Order Form. Subscriptions will automatically be renewed for additional periods equal to the expiring Subscription term, unless either Party gives the other Party notice of non-renewal before the next month’s start. Unless Service provider has notified the Customer within sixty (60) days of a price increase prior to expiration of a Subscription term the pricing will be the same as that during the immediately prior term in case the Subscription is automatically renewed.
- Either Party may upon written notice to the other Party terminate this Agreement with immediate effect if: (i) the other Party has committed a material breach of this Agreement, and has not rectified the same within thirty (30) days after receipt of a written notice thereof; or (ii) the other Party is wound up or if a trustee in bankruptcy or insolvency, liquidator, receiver, or manager on behalf of a creditor is appointed or if circumstances arises which would entitle the court or a creditor to make a winding-up order, or if it otherwise is likely that the other Party is insolvent.
- Upon termination of the Agreement or a Subscription term as set forth above, the Customer shall not be entitled to any refund of the Service Fees paid in advance covering the remainder of the term of any Subscription.
Any notice required or permitted to be given by either Party under this Agreement, shall be in writing and may be delivered by hand or courier,
sent by registered airmail letter or e-mail to the Parties contact persons at the above stated addresses or as otherwise agreed between the Parties.
Such notice shall be deemed to be given:
- if sent by hand or courier, on the day of delivery to the receiving Party
- if sent by registered airmail letter, five (5) days after the day of dispatch;
- if sent by e-mail, on the day after sending, provided that the sending Party does not receive any error message and that the sending email account indicates that the email was sent to the correct address.
- Any notice required or permitted to be given by either Party under this Agreement, shall be in writing and may be delivered by hand or courier, sent by registered airmail letter or e-mail to the Parties contact persons at the above stated addresses or as otherwise agreed between the Parties. Such notice shall be deemed to be given:
- If and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed due to circumstances beyond the reasonable control of such Party such as, lightning, labour disputes, fire, acts of war, requisition, seizure, currency restriction, riots and civil disorders, shortage of means of transportation, shortage of goods, amendments to regulations issued by governmental authorities, intervention of authorities or defects and/or delays in delivery of his sub-suppliers due to the circumstances here stipulated (each, a "Force Majeure Event"), then the non-performing Party shall be excused from any performance of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature thereof. The non-performing Party is, however, always obligated to mitigate the effects of the Force Majeure Events.
- Should an event of Force Majeure continue for more than three (3) months, each Party shall have the right to terminate the Agreement or part thereof.
- Customer may only assign the rights or obligations under this Agreement to a third-party with the prior written consent of Service Provider.
- Service Provider may engage sub-contractors to execute the Service.
Entire Agreement and amendments
- In the case of any inconsistency between the Agreement and any of its schedules, the Agreement shall prevail.
- Any amendment or modification to this Agreement must, in order to be binding for the Parties, be in writing and signed by both Parties.
Survival of provisions
- Any provision in this Service Agreement that to its nature is intended to survive the termination of this Agreement or any Subscription term will survive its termination and remain in force without limitation in time.
GOVERNING LAW AND DISPUTES
- This Agreement shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.
- Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The place of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be Swedish, unless otherwise agreed.
- The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
- 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 in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.