stated Tns Serthe the aSalesByte – General terms and conditions
1.1. These general terms and conditions (the “Agreement”) govern the Customer’s access and use of the SalesByte service, i.e., a cloud-based display- and offering tool (the “Service”) offered by SalesByte AB (the “Service Provider”). The Agreement specifies the terms and conditions under which the Service Provider will provide the Service to the Customer.
1.2. Service Provider and the Customer are jointly the “Parties” and individually the “Party”.
”Agreement” means these Terms and conditions and any Order Form concluded including any exhibits attached thereto.
“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 the Customer in relation to the Service.
“End Customer” means the legal entity to whom the Customer offers to sell its services.
“Offer” means the proposition sent to the Customer at the Customer’s request within the Service.
“Order Form” means the order form concluded between the Parties setting forth the scope and details of the ordered Service and the fees related thereto.
“Service” means the service delivered by the Service Provider as further described in the Order Form and offered by the Service Provider on a software-as-a-service-basis (Saas) in accordance with the terms of this Agreement.
“Service Fee” means the applicable recurring fee set out in the relevant Order Form payable by the Customer to the 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 the Customer to use the Service. Users may include, without limitation, the employees of the Customer.
3. Orders for Subscriptions and grant of right to use the Service
3.1. Subject to the terms of this Agreement including any license restrictions set forth herein, the Customer is granted a non-exclusive, non-transferable, limited license 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).
3.2. Notwithstanding the above, the Service Provider’s obligation to provide the ordered Service to the Customer and the Customer’s right to use the Service ordered as set forth in section 3.1 is conditional upon the Customer’s fulfilment at all times of its obligations under the Agreement.
4. Obligations of the Service Provider4.1. The Service Provider will:
– as of the agreed Start Date, make the Service available to the Customer pursuant to this Agreement and any applicable Order Form; 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).
4.2. Notwithstanding section 4.1 above, the Service Provider reserves the right to amend and update the Service at any time. The Service Provider may, but is not obliged to, inform of such changes in advance. The Service Provider reserves the right to implement changes immediately without a prior notice if the changes (a) concern solely the technical environment without any impact to the content of service, (b) are needed to prevent security risks or (c) are required by law or other orders by authorities.
5. Obligations of the Customer, usage and content of the Service
5.1. The Customer will:
– hold all responsibility and liability regarding the Offers provided by the Service, including without limitation that (i) the Offers contains all information necessary for the acceptance by an Offer to be legally binding; (ii) the electronic signing by the Customer and the End customer is legally valid and binding; and (iii) contracts entered into by usage of the Service is legally enforceable;
– hold all responsibility and liability regarding the Users’ compliance the Agreement;
– hold all responsibility and liability regarding the lawfulness and compliance of the processing of all Customer Data, including without limitation the means by which the Customer acquired the Customer Data;
– hold all responsibility and liability regarding the acquisition of any applicable consent from the End Customer as necessary for the delivery of the Service by the Service Provider;
– use the Service only in accordance with the Agreement, the applicable Order Forms, any user guidelines and applicable legislation 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 the Agreement and the applicable Order Forms;
– not lease, sublicense, rent, distribute or otherwise use the Service to the benefit of others; and
– 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 legislation).
6. Third Party Products
6.1. To use the Service the Customer might be dependent of Third Party Products.
6.2. The Customer acknowledges and accepts that the 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.
6.3. 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.
7. Fees and payment
7.1. The Customer will pay the Service Fees for the ordered Subscriptions of the Service in accordance with applicable the Order Form. Paid Service Fees are non-refundable.
7.2. The Service Provider may unilaterally increase the Service Fees price by up to five (5) percent per calendar year.
7.3. The Service Fees are stated exclusive of value-added tax.
7.4. Any Service Fee shall be payable in advance with the payment term 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.
7.5. In case of late payment, the Customer shall pay late payment interest on any outstanding amount in accordance with the Swedish Interest Act. The Service Provider shall, upon written notice to the Customer, be entitled to discontinue the Customer’s provision of the Service until any outstanding amounts have been paid in full.
8. Support and maintenance
8.1. The 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.
8.2. The 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 the Customer. This includes, without limitation, the Service Providers right to stop the Service for a reasonable time between 22:00 – 07:00 (CET), if the Service Provider in its own discretion deems it necessary to perform installations, changes or other maintenance to the Service.
9. Proprietary rights and licenses
9.1. Subject to the limited rights granted hereunder, the 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 the Customer other than as expressly set forth herein.
9.2. Except for any Customer Data fed into the Service by the Customer, the 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 the Service Provider’s performance of the Service.
9.3. The Customer grants to the Service Provider a worldwide license 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.
9.4. The Service Provider has the right to use the Customer as a reference in its own marketing and sales activities. The Service Provider’s use of the Customer as a reference will adhere to good industry practice.
10. Personal data & Corporate Secrets
10.1. 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. The 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 the Service Provider’s website which is hereby incorporated by reference and which shall apply to such processing.
10.2. All data and information that the service provider receives in any way from the customer shall be regarded as the customer’s corporate secrets except for data that is publicly announced.
11. Changes to the Service
11.1. The Service Provider reserves the right to, at any time, modify, discontinue or stop, temporarily or permanently, the Service, with or without notice. This also includes updates, technical changes, add-ons or modified versions of the Service, changes required by law or other governmental decision, part of those things, or anything else that the Service Provider owns the intellectual property rights to. The Service Provider is not responsible for the Customer or third parties for any modification, suspension or discontinuation. Although the Service Provider makes reasonable efforts to keep the Service up to date, the Service Provider. is under no obligation to do so.
12. Warranty disclaimer
12.1. The 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. The 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 the Service Provider. In the event of a breach of the warranty in this Section 13.1, The 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.
12.2. Except as expressly provided herein, the 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.
13.1. The Customer shall indemnify the Service Provider against any and all claims, demands, suits or proceeding made or brought against the Service Provider by a third party alleging that the Customer Data or the Customer’s use of the Service in breach of this Agreement infringes such third party’s intellectual property rights or violates applicable law, and will indemnify the Service Provider from any cost or damages which Service Provider may be obligated to pay in accordance with a judgment, arbitral award or settlement. The Customer’s undertaking shall only apply provided that the Customer, without undue delay, is notified by Service Provider in writing of the claim or action, and that the Customer is given the sole right to control the defense against such action and decide on any agreement or settlement.
14. Limitation of Liability
14.1. 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.
14.2. 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.
14.3. The above limitations shall not apply in relation to the 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.
15. Term and termination
15.1. 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 adhering to a one (1) month notice period.
15.2. 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.
15.3. 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.
15.4. If the Customer have a fixed Service Fee with a threshold in terms of number of End Customers that could be fed into The Service Providers Service per month. In such cases that this threshold is exceeded The Service Provider have the right to increase the Service Fee for the coming terms without notice. The new threshold shall be the mean of the last term plus 30%. The Service Fee shall follow in parity.
16.1. The Agreement and any Order Forms constitute the complete Agreement between the Customer and the Service Provider in relation to the Customer’s subject, replacing and terminating any previous agreements, arrangements, commitments of any nature, between the Customer and the Service Provider, whether oral or written in relation to this matter.
16.2. Any failure by the Service Provider to exercise or enforce any right or provision of the Agreement will not constitute a waiver of that right or provision.
16.3. If any provision of the Agreement is found to be invalid, the Customer acknowledges and agrees that the remaining provisions of the Agreement will remain in full force and effect.
16.4. The Customer may not assign or transfer any of the Customer’s rights or obligations, nor subcontract the performance of any of the Customer’s obligations, under the Agreement. The Service Provider may assign or transfer any right or obligation, or subcontract the performance of any of its obligations, under the Agreement to third parties at any time, without prior notice.
16.5. 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, labor 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.
17. Governing law and Disputes
17.1. This Agreement shall be governed by the substantive law of Sweden.
17.2. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
17.3. The seat of arbitration shall be Gothenburg, Sweden.
17.4. The language to be used in the arbitral proceedings shall be Swedish.
17.5. 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 be disclosed to a third party without the prior consent by the other Party. Exceptions to the foregoing shall only apply to the extent that disclosure may be required of a Party due to mandatory law, an order of a competent court or public authority, or to protect, fulfil or pursue a legitimate legal right or obligation or to enforce or challenge an award.