Terms of service
1. General
TheAgreement shall govern the rights and obligations of Customer and INDICIO inrelation to the Subscription for the Services. Any divergent or supplementaryterms and conditions provided by Customer are not accepted and shall beexcluded in their entirety.
2. Definitions
2.1. “Agreement” means the mastersubscription agreement together with the appendices thereto, including theseGTCs.
2.2. “Beta Services” means a part ofthe Services, which is under development or testing and that is marked “BETA”or with similar designation.
2.3. “Customer” means the legal entitywhich has entered into the Agreement with INDICIO and that assumes liabilityand payment responsibility towards INDICIO for the Users’ use of the Services.
2.4. “Data” means all data which isuploaded to, transferred through, processed or entered into the Services byCustomer or the Users.
2.5. “Derived Data” means all resultsgenerated in Indicio
2.6. “GTCs” means these general termsand conditions.
2.7. “Product Use Data” means dataregarding Customer’s and Users’ use of the Services, including but not limitedto times of sessions, number of forecasts created and updated, variables used,and User provided prognosis adjustment data.
2.8. “Services” means the use of theIndicioTM platform, including any associated software, provided byINDICIO to Customer in accordance with the Agreement. The Services are offeredon a subscription basis as set out in the Subscription Specification and mayinclude additional services and add-ons, including third party software, asagreed between Customer and INDICIO as part of a Subscription.
2.9. “Subscription” means the termsgoverning among other things the type of subscription, the number of UserLicenses, applicable fees, etc.
2.10. “Subscription Specification” meansthe specification of the Subscription ordered by Customer set out in Appendix1 of the Agreement or as amended from time to time by the parties.
2.11. ”User” means all employees,consultants or any other individual that works for Customer who is authorizedby Customer to use the Services under the Agreement. All User accounts areconnected to and dependent on the Customer Subscription.
2.12. “User Licenses” means thesubscribed number of Users under a Subscription.
2.13. “User Terms” means the terms andconditions, available at the Web Site from time to time, to which all Usersagree by creating or activating a User account.
2.14. “Web Site” means INDICIO’s website at www.indicio.com.
3. Services
3.1. Subject to the terms of theAgreement, INDICIO hereby grants to Customer a non-exclusive,non-sub-licensable, limited term, non-transferable, license for Customer andthe Users to use the Services.
3.2. Customer may upgrade aSubscription at any time with additional Site Licenses or additional modules orfunctionality. The usage is limited to the Region and Site defined in theSubscription Specification.
3.3. Customer acknowledges that INDICIOmay need to take measures that affect the accessibility of the Services, at anytime without prior notice, where INDICIO deems such to be necessary fortechnical, maintenance, operational, or security reasons.
3.4. INDICIO may, at any time withoutprior notice, implement updates and upgrades, including but not limited tochanges that affect the design, technical specifications, and function of theServices, however, the implementation of such changes will not impactCustomer’s access to the Services below the SLA level in Appendix 3.
3.5. INDICIO shall be entitled toretain subcontractors, including third party software suppliers, for theperformance of obligations under the Agreement.
3.6. Customer may use Beta Services ina manner consistent with the terms and conditions of this Agreement, andINDICIO disclaims all warranties, representations, and liabilities for the BetaServices and INDICIO shall not be liable for damages of any kind related toCustomer’s or User’s use of such Beta Services.
4. Customer Obligations
4.1. Customer shall always comply withthe instructions provided by INDICIO regarding the Services and shall also beresponsible for the notification of the Users of such instructions andascertain that the Users follow the instructions.
4.2. Derived Data may only be used oraccessed by the Customer, unless otherwise explicitly permitted in writing byIndicio.
4.3. Customer shall ensure that Useridentities, passwords, and equivalent relating to Customer’s use of theServices are stored and used in a secure manner and cannot be accessed andthereby used by third parties. If suspected that any unauthorized person hasaccess to any identification information relating to Customer or a User,Customer shall immediately inform INDICIO thereof and also change such useridentity and/or password.
4.4. Customer shall at all times remainliable for the Users’ use and any unauthorized use of the Services and ensurethat the Users perform their obligations towards INDICIO.
4.5. Customer shall not to use theServices in any manner which may result in the infringement of any thirdparty’s rights or to use the Services in any other manner incompatible with lawor the purpose of the Services.
4.6. Customer is solely liable forascertaining a right to use Data from any third party data suppliers.
4.7. Customer may not access theServices for purposes of monitoring its functionality, or for any otherbenchmarking or competitive purposes. Customer shall not provide access to theServices to anyone else than registered Users, in particular not to any thirdparty that is an actual or potential competitor to INDICIO. User accountscannot be shared or used by more than one individual User. Customer isresponsible for managing the Users right to use the Services.
4.8. Customer is solely responsible forascertaining that the Services are suitable for Customer’s intended use. AllData and the analysis and application of the results of the Services inCustomer’s business shall be the sole responsibility of Customer.
4.9. Customer shall defend, indemnifyand hold INDICIO harmless from any losses or claims arising out of any (i)non-performance by a User of its obligations under the Agreement or the UserTerms, (ii) illegitimate use by Customer of Data from a third party datasupplier, (iii) unauthorized use of the Services by a third party having accessto a User identity/password if such information has been revealed to the thirdparty through a negligent act or omission of Customer.
4.10. INDICIO shall have no liabilityfor any loss or damage arising from Customer’s failure to comply with the aboveobligations.
4.11. INDICIO shall be entitled, withimmediate effect, to disable Customer’s or any User’s access to a Subscriptionor to the Services or to terminate theAgreement at any time where Customer or a User: (a) fails to comply with theabove obligations; (b) uses the Services in a manner that may lead to losses orthe risk of loss for INDICIO or any third party; (c) uses the Services in amanner that violates INDICIO’s instructions; (d) Customer fails to pay agreedfees to INDICIO within a stated time; (g) Customer otherwise fails to complywith the Agreement and such breach ofcontract is material; and (i) Customer is reasonably deemed insolvent.
5. Customer Support
INDICIOwill provide customer support in accordance with the applicable Subscriptionlevel/package. Such support is provided on weekdays (excluding Swedish publicholidays) during INDICIO’s ordinary office hours and to the reasonable extentdecided upon from time to time in detail by INDICIO.
6. Subscription Fee and Payment
6.1. Customer shall pay a Subscriptionfee for the use of the Services as set out in the Subscription Specification oras otherwise agreed. All prices are excluding VAT and any other taxes, chargesor fees, which shall be borne by Customer. Notwithstanding the above, INDICIOmay at any time increase its fees for future Subscription terms withoutCustomer’s prior approval, however, Customer then has the option to terminatethe Subscription and/or the Agreement.
6.2. AllServices provided by INDICIO shall be invoiced to Customer annually in advanceand for the subscribed number of User Licenses. Any added User Licenses will beinvoiced for the applicable part of the year such User is registered.
6.3. Paymentshall be made in the currency stated on the invoice within thirty (30) days ofthe issue date of the invoice. Interest on overdue payments shall be payableaccording to law. INDICIO shall be entitled to charge a fee for any non-paymentnotices and reserves the right to send the same via e-mail to an invoicereference provided by Customer. Customer shall be responsible for thereasonable costs incurred by INDICIO when collecting overdue fees.
6.4. Inthe event of overdue payments in excess of twenty (20) days, without prejudiceto its other rights and at its sole discretion, INDICIO may disable Customer’saccess to the Services or immediately terminate the Agreement and upon ten (10)days’ notice to Customer delete any Data from the Services.
6.5. Inthe event of early termination of a Subscription, the Services or theAgreement, Customer shall not be entitled to a refund of any prepaid fees.
7. Intellectual Property Rights
7.1. Accessto the Services is licensed, not sold. INDICIO retains the title to any and allintellectual property rights relating to the IndicioTM platform, theServices, the Product Use Data and any graphical representations of theprognosis output of the Services, including any improvements thereof. Under nocircumstances shall Customer or a third party acquire any intellectual propertyrights to the Services or to the software or technical solutions used in theServices or to any trade mark or any other business mark belonging to or usedby INDICIO.
7.2. AllCustomer Data and prognosis output shall remain the sole property of Customeror its respective legal owner. INDICIO shall have no liability for any Data,irrespective if such Data was created or assembled by Customer or provided by athird party data supplier.
7.3. INDICIO undertakes to defendCustomer from and against any third party claim or action that Customer’s useof the Services infringes the intellectual property rights of such third partyand shall indemnify and hold harmless Customer from and against any losses,damages and reasonable costs incurred by or awarded against Customer inconnection with any such claim, provided, however,that (i) INDICIO shall have no obligation of indemnity hereunder to the extentthat such losses, damages or costs result orarise from the gross negligence or willful misconduct of Customer or breach ofcontract by Customer; (ii) Customer promptly notifies INDICIO inwriting of the claim or action; (iii) INDICIO is provided sole control of thedefense, settlement or compromise of the claim or action; and (iv) Customercooperates with INDICIO in the defense of the claim or action.
7.4. Customer may not in any wayreplicate, reproduce, reverse engineer, disassemble, or derive the methods,processes, or any other element of the Services for creating any service,product, or solution that is similar to or derived from the Services.
7.5. Incase of product feedback, all intellectual property rights to ideas andconcepts will belong to INDICIO and may, at its sole discretion, be used byINDICIO in the further development and marketing of the Services.
8. Data Protection
8.1. Inorder for Customer to be able to use the Services, Customer must providecertain data to INDICIO regarding Customer’s representatives. Following receiptof such data, INDICIO will process the same using automatic data processing inorder to enable INDICIO to administer and otherwise perform its obligationsunder the Agreement. Customer allows INDICIO to process such data at forINDICIO to store and retrieve session information on Customer’s computers,through the use of cookies where the purpose of such storage and retrieval ofcookie information is to enable login and logout procedures and to ensure thatunauthorized persons do not gain access to the Services.
8.2. Customer is aware of andacknowledges that INDICIO will include in the User Terms consent of the Usersrelating to personal data according to applicable law. Customer shall use itsbest endeavors to ensure that such consent is given by the Users. A User thatdoes not give its consent may not gain access to the Services. If third partyapplications are made available by INDICIO within the Services, Customeracknowledges that INDICIO may allow such third party application provideraccess to business and personal data as required for the interoperation betweenthe Web Site and such third party applications.
8.3. INDICIOis not obliged to disclose information to Customer in respect of the Users’ useof the Service.
9. Limited Warranty
9.1. INDICIO warrants to Customer thatthe Services will perform substantially and materially in accordance with theSubscription Specification, under normal use and circumstances. This warrantydoes not apply to Beta Services.
9.2. 9.2 Except for the express warranties set out in the previous clause andto the furthest extent permitted by law, INDICIO disclaims all other warrantieswith respect to the Services, whether express or implied, including withoutlimitation, accuracy or reliability of results from use of the Services, thatthe Services will meet specific requirements, that the Services will beuninterrupted, completely secure, free of software errors, or that defects anddeficiencies in the Services will be corrected.
10. Limitation of Liability
10.1. INDICIO assumes no responsibilityor liability for defects or deficiencies in the Services and Customer shall nothave any rights to a reduction in the Subscription fee, or to damages or otherremedies in the event of downtime or any defects or deficiencies in theServices.
10.2. In no event, except in case ofgross negligence or wilful misconduct, shall either party be liable for anyindirect, incidental or consequential loss or damage, including but not limitedto loss of profits and loss of revenue, suffered by the other party, arisingfrom or in any way connected with the Agreement.
10.3. To the furthest extend permittedby law, INDICIO’s total aggregate liability for (direct) loss or damage under the Agreement shall be limited to amaximum amount equal to the Subscription fees paid by Customer for the Servicesduring the period of twelve (12) months immediately prior to the breach ofcontract that entitles Customer to damages, or to an amount of 100.000 EUR,whichever is greater. The exclusion and limitation set out in this Section 10.3shall not apply in case of gross negligence, willful misconduct or claim underclause 7.1 (IPR) or clause 12 (Confidentiality).
10.4. Inthe event that any part of the Services may constitute infringement on a thirdparty’s intellectual property rights, INDICIO may immediately stop providingthe Services and terminate the Agreement.
11. Circumstances Beyond INDICIO’sControl
11.1. INDICIO shall be excused fromperformance of its obligations and released from liability under the Agreement,to the extent that performance is prevented or rendered onerous due tocircumstances beyond INDICIO’s control. Such events include but are not limitedto lightning, fire, flooding, decisions of public authorities or other publicregulations, labor conflicts, errors in networks, computer viruses andmalfunctions, delays in services from third parties or other similarcircumstances.
12. Confidentiality
12.1. INDICIO undertakes not to discloseto any third party, or otherwise make available, Customer’s Data. Furthermore,any other information received by a party from the other party that in any wayrelates to the other party, including but not limited to any business,financial, scientific, intellectual property, customer or potential customerrelated, technical or operational information shall be deemed confidentialinformation hereunder and shall not be disclosed to any third party or usedoutside the scope of the Agreement. The above confidentiality and non-useobligations shall not apply to such information as a party can demonstratebecame known to that party other than as part of this Agreement or which is inthe public domain. Nor shall the duty of confidentiality apply where a party isobligated to provide information pursuant to mandatory legal provisions, publicauthority regulations or court orders. The duty of confidentiality and non-useshall remain in force notwithstanding the termination of the Agreement.
13. Amendments
INDICIOreserves the right to change the terms and conditions of this Agreement at itssole discretion and at any time and INDICIO will inform Customer by e-mail ofthe implementation of such change. Customer shall be deemed to have receivedthe change notice at the latest two (2) weeks from the dispatch of the notice.Where Customer does not accept the change, Customer shall be entitled toterminate the Agreement by providing at least seven days’ notice from the dateof Customer’s receipt of the change notice. If the Agreement is not terminatedby Customer within the aforementioned time, Customer shall be deemed to haveaccepted the new terms and conditions.
14. Assignment
14.1. INDICIO shall be entitled, inwhole or in part, to assign its rights and obligations under the Agreement to acompany within the same group of companies as INDICIO or to a purchaser of allor substantially all of its shares or assets without Customer’s prior consent.
14.2. Customershall not be entitled to assign its rights or obligations under this Agreementwithout INDICIO’s prior written consent.
15. Effects of Termination
15.1. Upontermination of this Agreement for any reason or if all Subscriptions arecancelled by Customer, within thirty (30) days from effective termination orcancellation, INDICIO may, upon Customer’s request, provide a copy of allhistoric prognoses generated by Customer during the term, excluding prognosisadjustment data, and following the transfer of data or the expiry of the 30-dayterm referenced above, INDICIO shall be entitled to permanently delete anyremaining Customer Data from the Services.
15.2. Thoseprovisions of the Agreement that, by their nature, are intended to survive anyexpiration or termination shall so survive.
16. Conflict of Terms and Severability
16.1. Inthe event of conflict between the main Agreement document and its appendices,the documents shall be given the following order of precedence: 1. the mainAgreement document; 2. the Subscription Specification; and 3. these GTCs.
16.2. Ifany provision of this Agreement is declared unenforceable for any reason, theremainder of this Agreement will continue in full force and effect, and theunenforceable provision shall be amended to the extent possible and permittedby law to achieve as nearly as possible the same intent as well as legal andeconomic effect as the original provision.
17. Governing Law and Disputes
17.1. This Agreement shall be construedin accordance with, and governed by, the substantive laws of Sweden.
17.2. Anydispute or claim arising out of or in connection with this Agreement or thebreach, termination or invalidity thereof, shall be exclusively submitted tothe District Court of Uppsala, Sweden, in the first instance.
__________