TERMS OF SERVICE
1. INTRODUCTION AND SCOPE
1.1 The Terms of Service set forth the general terms and conditions for the Supplier’s supply of Services and constitute part of the Agreement. The Terms of Service shall apply whether the Agreement is concluded directly by the Customer and the Supplier, or between the Customer and a reseller or partner of the Supplier.
1.2 Any deviation, clarification or supplement to the Terms of Service shall be agreed in the Order Form in order to be valid. In case of any conflicting between (a) the Order Form and the Terms of Service, the Order Form shall take precedence, and (b) between any of the Terms of Service and the Data Processing Terms, the Data Processing Terms shall always take precedence in respect of processing of the Customer’s personal data.
2. SUPPLY OF THE SERVICES
2.1 The Supplier undertakes to supply the Hub Planner Service to the Customer during the term of the Agreement, in accordance with the Terms of Service and any other terms and conditions set forth in the Agreement.
2.2 The Customer agrees and acknowledges that the Hub Planner Service is a standardized software service, and that the Customer is responsible for investigating and ensuring that the features and functionality of the Hub Planner Service fulfills the Customer’s needs. The Supplier does not warrant that the Hub Planner Service has any specific features or functionality, unless expressly set out in the Service Description for the Hub Planner Service.
2.3 The Customer agrees and acknowledges that the Supplier continuously develops the Hub Planner Service, and that its content and functionality therefore may change during the term of the Agreement, due to the continuous development of the Hub Planner Service, or in order to maintain performance and/or security, or other circumstances. The Supplier will provide the Customer with updated version of the Service Description, that will be published at www.hubplanner.com, if the Supplier does any changes to the Hub Planner Service and if the Supplier deem it necessary to update the Service Description in accordance to such change.
2.4 The Supplier may temporarily suspend or restrict a User’s and/or the Customer’s access to the Hub Planner Service, (a) in case of the User’s or the Customer’s breach of the terms for use of the Hub Planner Service under this Agreement; (b) in case the supply of the Hub Planner Service causes a risk of damage to the Supplier, the Customer or other customers or other third-party; or (c) in case of a delay in payment of fees as set forth in Section 6 below. The Supplier may in such case not undertake more interfering measures than what is reasonable under the circumstances. The Customer shall, if the Supplier deem it necessary, be notified as soon as possible of such suspension or restriction of access to the Hub Planner Service.
3. LICENSE TO USE
3.1 The Supplier grants to the Customer a non-exclusive, non-transferable right to Use the Hub Planner Service (including all Supplier Materials), for its own business purposes and subject to the agreed Volume Limitations (including Concurrent Users) during the term of the Agreement. The Customer further agrees and acknowledges that the Customer’s right of Use is conditional on the due payment of all fees under this Agreement.
3.2 The Customer is liable for all Use and other actions by any Users.
3.3 The Customer may, upon request or by themselves from within the application, at any time during the term of the Agreement, request to adjust the agreed Volume Limitations (e.g. by adding additional Users/Extensions or reducing the number of Users/Extensions). An increase of the Volume Limitations will take effect immediately, and the applicable fees for the increase will be charged from the order date, for the remainder of the relevant Contract Period and further Contract Periods. A decrease of the Volume Limitations will take effect immediately and no adjustment of the fee for the Hub Planner Service will be made to the Customer.
4. GENERAL CUSTOMER OBLIGATIONS
4.1 The Customer undertakes:
(a) To only use the Hub Planner Service (including all Supplier Materials) in accordance with this Agreement and Applicable Law, and for this purpose ensure that the Use of the Hub Planner Service at each time is in full compliance with this Agreement, including all agreed Volume Limitations.
(b) To ensure that only authorized Users have access to the Hub Planner Service, and not sublicense, grant access to or otherwise make the Hub Planner Service available to any unauthorized party.
(c) To not (i) attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Hub Planner Service and/or the Supplier Materials, in any manner (subject to what follows from mandatory legislation), or (ii) create derivative works from, modify or alter the Hub Planner Service and/or the Supplier Materials, in any manner whatsoever; or (iii) use or access the Hub Planner Service and/or the Supplier Materials for the purpose of building a competitive product or service, or building a product or service using similar unique and confidential ideas, features, functions or graphics of the Hub Planner Service and/or the Supplier Materials.
(d) To be responsible for the control and administration of permission rights in relation to all Users of the Hub Planner Service. The Customer is thereby responsible for (i) that all Users are authorized to use the Hub Planner Service, and immediately adjust in case any such User is no longer authorized to access the Hub Planner Service, (ii) the usage and all content added, uploaded or saved to the Hub Planner Service by all Users, (iii) ensuring that login credentials for each User are only used by the physical person who is the named User, and (iv) for maintaining confidentiality of login credentials, security measures and other information provided by the Supplier for access to the Hub Planner Service. The Customer shall immediately inform the Supplier in case any unauthorized person has obtained access to the Hub Planner Service or received knowledge of information referred to in this Section 4 (d).
(e) To comply with the Supplier’s instructions and the Terms of Service that apply for the Customer’s Use of the Hub Planner Service.
(f) To promptly provide such information and take such decisions as are required for the Supplier to be able to perform its obligations under the Agreement.
(g) To be responsible for all software, hardware and other equipment that is required for the Customer to use the Hub Planner Service, as specified in the Supplier’s technical requirements for the Hub Planner Service as set out in the Service Description for the Hub Planner Service.
(h) To not use or access the Hub Planner Service in a manner that would reasonably be expected to damage, disable, overburden, or impair the Supplier or third-party servers, systems, equipment or networks.
(i) To be responsible for (i) all uploading and transfer of Customer Data to and from the Supplier or its subcontractor, (ii) that the Customer Data does not contain any Malicious Code, (iii) that the Customer Data is in the agreed format, (iv) that the Customer has the full legal rights to dispose over the Customer Data, and that the use of the Customer Data does not infringe any third-party Intellectual Property Rights or violate Applicable Law, and (v) that the Customer Data in no other manner may harm or have a negative impact on the Supplier, the Hub Planner Service or any third-party.
(j) To not use or access the Hub Planner Service in a manner that would reasonably be expected to infringe upon the Suppliers’ or any third-party Intellectual Property Rights or violate privacy laws or otherwise be in breach of Applicable Law.
5. SUPPORT AND MAINTENANCE
5.1 The Supplier will provide the Hub Planner Service in accordance with the Service Description for the Hub Planner Service, but the Supplier does not warrant that the Customer’s Use of the Hub Planner Service will be error-free or free from any interruptions. The Supplier will however make its best efforts to remedy any Incidents in the Hub Planner Service, by providing Support and Maintenance in accordance with the Service Description for Support and Maintenance. The Supplier’s obligations to provide Support and Maintenance are conditional on the due payment of all fees under this Agreement.
6. FEES AND PAYMENT
6.1 All prices and fees in this Agreement are stated in USD, excluding value added tax (VAT), unless otherwise specified in the Order Form and/or the invoice. Payment shall be received by the Supplier within thirty (30) days from the invoice date, unless otherwise specified in the Order Form and/or on the invoice. Payment of all applicable fees is a condition for the Customer’s right to receive the Services under this Agreement. Paid fees will not be repaid upon the termination of this Agreement irrespective of cause, except (in case of the Customer’s termination for cause) any prepaid fees for the time period after effective termination of the Agreement.
6.2 The fees for the Hub Planner Service are set forth in the Agreement.
6.3 Where the Customer is in delay with payment, the Supplier is entitled to interest on overdue payment according to Applicable Law (the Swedish Interest act (1975:635) or corresponding legislation in the Customer’s country). The Supplier may withhold the supply of Services until the Customer had paid the unpaid, due amount.
6.4 The Supplier has the right to increase, on an annual basis, the fees for the Services set forth in the Agreement, in accordance with the changes in the Swedish SCB published Labour Cost Index for White collar Workers (LCI Tjänstemän) preliminary index, SNI 2007 Code J (Information- and Communication Business). Base index will be the one applying for the quarter year in which the Effective Date occurs. Index adjustment will take place at the earliest twelve (12) months from the Effective Date of the Agreement, whereby the latest index published by SCB will be compared to the base index of the Agreement.
6.5 The Supplier is entitled to compensation for additional costs caused by circumstances for which the Customer is responsible, including but not limited to additional costs for investigation and remedy of Incidents for which the Supplier is not liable.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Supplier and/or its licensors are the owners of all right, title and ownership to the Hub Planner Service including all Supplier Materials, including all related Intellectual Property Rights. The Customer is granted limited rights to Use the Hub Planner Service and the Supplier Materials in accordance with Section 3 above.
8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
8.1 The Supplier undertakes to defend, at its own expense, the Customer if claims are made or a lawsuit is brought against the Customer based on alleged infringement of any third-party Intellectual Property Rights due to the Customer’s use of the Hub Planner Service (including the Software included therein) in accordance with the Agreement. The Supplier further undertakes to reimburse the Customer for any compensation and damages payable by the Customer under a settlement or a judgment. The Supplier’s undertakings apply only on the conditions, that the Customer has notified the Supplier in writing within reasonable time of the claims made or lawsuit brought, and that the Supplier has been given the rights to decide at its discretion how to defend the claim or lawsuit and conduct any settlement negotiations.
8.2 Where it is finally held that an infringement has occurred, and the Supplier has been allowed to participate in the litigation and settlement as set forth above, or if, in the Supplier’s own opinion, it is likely that an infringement has occurred, the Supplier shall, at its own expense, either (i) safeguard the Customer’s right to continue to use the Hub Planner Service, or (ii) change the relevant parts of the Hub Planner Service or replace them with other equivalent service or product, the use of which will not constitute infringement, or (iii) terminate the Customer’s Use rights in relation to the relevant parts of the Hub Planner Service and grant the Customer a price reduction that corresponds to the reduced value of the Hub Planner Service due to the infringement. Where the infringement causes the Customer significant harm, notwithstanding that the Supplier has fulfilled its obligations according to the foregoing within reasonable time, the Customer may terminate the Agreement by written notice for material breach of contract.
8.3 The Supplier will not be liable to the Customer for any infringement claims that are caused by the Hub Planner Service being modified by the Customer or another party than the Supplier, or the Hub Planner Service being used in violation of the Supplier’s instructions or the Agreement.
8.4 The Supplier’s liability for infringements of third-party Intellectual Property Rights is limited to what is set forth above, unless the Supplier has acted with willful misconduct or gross negligence. The Customer may not bring any other claims against the Supplier as a consequence thereof.
8.5 The obligations set out above shall apply correspondingly for the Customer, in respect of the Customer Data and the Supplier’s use thereof within the scope of the Agreement.
9. DATA PROTECTION AND INFORMATION SECURITY
9.1 The Customer is the owner of the Customer Data. The Supplier may only use the Customer Data to the extent necessary for the Supplier to be able to supply the Hub Planner Service.
9.2 The Customer agrees and acknowledges that the Supplier will process personal data in relation to Users and the Customer’s contact persons, acting as a controller under Applicable Law, for the purpose of supplying the Services according to the Agreement and the administration of the contractual relationship with the Customer.
9.3 The Parties agree and acknowledge that when supplying the Services under this Agreement, the Supplier will process certain personal data included in the Customer Data. The Data Processing Terms will apply for all such processing of personal data included in the Customer Data.
9.4 The Data Processing Terms set forth the general information security requirements that the Supplier maintains for storage and other processing of Customer Data.
10. CONFIDENTIALITY
10.1 Each Party undertakes not to disclose, without the other Party’s consent, to any third-party any such Confidential Information, which the Party has received from the other Party or otherwise in connection with performance of the Agreement. A Party may only use Confidential Information which has been received from the other Party for the purpose of supplying and receiving, respectively, the Services according to the Agreement. The confidentiality obligations shall not apply in relation to information which a Party can demonstrate has become known to the Party otherwise than through the performance of the Agreement, or which is generally known. The confidentiality obligations shall also not apply when a Party is obliged, under law, governmental decision or applicable stock exchange rules, to disclose information. Each Party shall be obliged to ensure that its employees, subcontractors and other parties who may receive access to the other Party’s Confidential Information maintains confidentiality thereof by execution of written secrecy undertakings.
10.2 The confidentiality obligations in relation to Confidential Information shall apply during the term of the Agreement and thereafter.
11. LIMITATION OF LIABILITY
11.1 Subject to Section 11.3, Supplier’s total liability for damages under this Agreement shall for any damage relating to the Hub Planner Service, be limited to an amount corresponding to the lower of SEK 250 000 or the total fees payable by the Customer under the Agreement during the twelve (12) months preceding the occurrence of the damage event giving rise to the claim.
11.2 Subject to Section 11.3, Supplier’s liability shall be limited to direct damage, cost or loss only, and the Supplier shall not be liable for any loss of profit, loss of revenue or other indirect damage, cost or loss, or for the Customer’s liability towards any third-party except as set forth in Section 8, or for any loss of data.
11.3 The limitations of liability set forth in this Section 11 shall not apply in relation to (a) personal injury or death caused by negligence, or (b) cost, loss or damage caused by a Supplier willful misconduct or gross negligence.
11.4 A Party shall, in order to retain its rights to claim damages, present in writing claims for damages to the other Party at the latest three (3) months from the occurrence of the damage event.
12. TERM AND TERMINATION
12.1 The Agreement enters into force on the Effective Date and shall be valid during the Initial Term. Each Party may terminate the Agreement in accordance with the notice period in the Order Form, and if not terminated, the Agreement will be automatically extended in continuous Renewal Term(s).
12.2
Termination shall be made:
i) if by the Customer through the application. For clarity, if the Customer cancel or terminate parts of the Services, such as reducing the number of licensed Users or other licensed volume metrics such as Extensions, during any Contract Period (see further Section 3.4 in this respect) the Customers will not be repaid by the Supplier.
ii) If by the Supplier in written notice to the Customer.
12.3 Each Party has the right to terminate the Agreement with immediate effect, by giving written notice to the other Party, if the other Party:
(a) Commits a material breach of its obligations under the Agreement and does not remedy such material breach within thirty (30) days from the first Party’s written notice hereof (provided that such remedy is possible); or
(b) Is declared bankrupt, initiates composition negotiations, is subject to a company reorganization or otherwise reasonably can be presumed to be insolvent.
12.4 Upon the termination or expiry of this Agreement:
(a) The Customer’s rights to use the Hub Planner Service, including all Supplier Materials, automatically expires.
(b) The Customer shall immediately pay all outstanding fees and other compensation; and
(c) The Supplier shall return or erase, and cease processing, all Customer Data and personal data included therein, as further set out in the Data Processing Terms.
12.5 Terms in this Agreement which obviously are intended to apply also after the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement irrespective of cause.
13. AUDIT RIGHTS
13.1 The Supplier has the right to, either itself or through a representative, regularly audit the Customer’s use of the Hub Planner Service in order to verify that the Use is compliant with the Agreement. The Customer shall cooperate in good faith and provide without delay all necessary data and information for such audit.
13.2 Where the audit demonstrates that the Customer’s Use of the Hub Planner Service exceeds the agreed Volume Limitations (including, but not limited to, the agreed volume of Concurrent Users) or otherwise is not compliant with the Agreement, the Supplier is entitled to invoice the Customer immediately for the overuse, based on the Supplier’s applicable rates at the time of payment (including with retroactive effect for past overuse, and for clarity, without application of any agreed discounts set out in the Order Form). If the underpaid charges exceed ten (10) per cent of the total value of the Agreement, the Customer will also be liable for payment of the Supplier’s audit costs. Where the Customer fails to correct the overuse by paying the Supplier’s invoice for additional charges, such failure shall be considered a material breach of contract which entitles the Supplier to terminate the Agreement for cause in accordance with Section 12 of this Agreement.
13.3 The Customer’s audit rights in relation to processing of the Customer’s personal data are set out in the Data Processing Terms.
14. GENERAL PROVISIONS
14.1 Force Majeure
If a Party is prevented from performing its obligations under this Agreement due to Force Majeure Event, this shall result in a postponement of the agreed time for performance and release from damages and other possible sanctions. Where the performance of the Agreement is materially restricted for more than two (2) months as a result of the Force Majeure Event, each Party shall be entitled to terminate the Agreement in writing without incurring any liability in damages.
14.2 Variation
The Supplier may update the terms and conditions for the Agreement, including the Terms of Service, from time to time, any such update to be published at https://hubplanner.com/terms-of-service/. Any such update of the terms and condition for the Agreement shall take effect in relation to the Customer from one (1) week from the date that the Supplier have been published the updated terms and condition at https://hubplanner.com/terms-of-service/. Otherwise, no modification, amendment, or supplement to this Agreement will be effective unless in writing and signed by authorized representatives of both Parties.
14.3 Assignment
A Party may not assign or pledge its rights or obligations according to this Agreement without the other Party’s written approval. Further, the Customer is not entitled to sub-license, rent out or lend out the Use rights granted under this Agreement. Notwithstanding the foregoing, the Supplier may however, without the Customer’s approval, (i) assign this Agreement to a Supplier Affiliate, or (ii) assign its rights to receive payment under this Agreement, any such assignment to be notified to the Customer in writing.
14.4 Waiver
No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right.
14.5 Severability
If any provision of the Agreement is or becomes illegal, invalid or unenforceable, the legality validity and enforceability of other provisions of the Agreement will not be affected, and the provision will apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable.
14.6 Publicity
The Supplier has the right to publish a press release upon the execution of this Agreement, and to refer to the Customer’s name or logo otherwise in its marketing activities. All use of the Customer’s name in marketing activities shall be made in accordance with good practice.
15. GOVERNING LAW AND DISPUTES
15.1 The Agreement shall be governed by the laws of Sweden, without regard to its principles governing conflicts of laws.
15.2 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 in accordance with the Arbitration Rules of the SCC Arbitration Institute. 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 (1) or three (3) arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be the Swedish language. The confidentiality obligations set out herein shall apply in respect of the arbitral proceedings and the arbitral award.
16. DEFINITIONS
In the Agreement, the following defined words and phrases shall have the meanings set out below. Capitalized words and phrases are also defined in other terms and conditions for the Agreement.
“Affiliate” means any legal entity which directly or indirectly controls a Party, is controlled by a Party or which is under common control with a Party. For the purposes of this Agreement, “control” of an entity means the direct or indirect ownership of more than fifty (50) per cent of the shares or interests entitled to vote for the directors of such entity or equivalent power over the management of such entity, for so long as such entitlement or power exists.
“Agreement” means the agreement between the Supplier and the Customer (or if relevant, between the Customer and a reseller or partner of the Supplier) where the Customer have subscribed for the Services in the Order Form, for supply of the Services, and which includes the Terms of Service.
“Applicable Law” means all laws, statutes and regulations in force from time to time as applicable to the Parties.
“Concurrent User”means a specific Volume Limitation, designating the agreed maximum number of Users who are Using the Hub Planner Service , as set out in the Order Form.
”Confidential Information” means technical, commercial or other information, which a Party has specifically stated (in writing or orally) to be confidential, or which by the nature of the information and the circumstances of its disclosure reasonably shall be deemed to be confidential information. Confidential information includes (but is not limited to) information which is confidential according to Applicable Law, Customer Data and the Supplier’s software code and user documentation in relation to the Hub Planner Service.
“Contract Period” means the Initial Term, and any Renewal Term(s).
“Customer” means the company and/or the person as set out in the Order Form.
“Customer Data” means all data, including personal data, which the Customer uploads to, stores or processes in the Hub Planner Service, or otherwise provides to the Supplier in connection with the Services.
“Data Processing Terms” means the Supplier’s special terms and conditions for processing of personal data, which are available at www.hubplanner.com, and which shall apply for the processing of the Customer’s personal data under the Agreement.
“Effective Date” means the date the Agreement enters into force, as set out in the Order Form (or if not set out therein, the date when both Parties have signed the Order Form).
“Extension” means a functional feature in the Service which is modular and can be added to the platform at a fixed fee basis or a fee per the Volume Limitations.
“Force Majeure Event” means a circumstance beyond a Party’s control, such as lightning, labour conflicts, fire, natural disaster, changed governmental regulations, intervention by public authorities, and any defect or delay in services provided by subcontractors due to such circumstances.
“Hub Planner Service” means the Supplier’s supply of the Software on a software-as-a-service basis, including Use rights to the Software, Support and Maintenance, server platform, security surveillance, data storage, back-up copying of Customer Data and installation of Updates, as further described in the Service Description for the Hub Planner Service.
“Incident” means, in relation to the Hub Planner Service: (a) software defects which constitute deviations from content or functionality which is described in the Service Description for the Hub Planner Service, and (b) service interruptions which means that the Hub Planner Service is not available to Users. Incidents relating to, or caused by, customer modifications, are excluded from the Supplier’s obligations in relation to Incidents.
“Initial Term” means the initial, binding contract term which is set forth in the Agreement.
“Intellectual Property Rights” means inventions, patents, registered and unregistered designs, copyright, registered and unregistered trademarks and trade secrets, including where applicable applications for registration of any of the foregoing rights, and any other rights of a similar nature in any country of the world.
“Maintenance” means the provision of proactive and corrective maintenance in relation to the Hub Planner Service, including provision of Updates.
“Malicious Code” means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Party” means each of the Customer or the Supplier.
“Parties” means the Customer and the Supplier collectively.
“Order Form” means a written order document executed by the Parties for supply of Services, and which forms part of the Agreement (and which is based on the Supplier’s standard order form template, or other agreed order document) or by subscription by the Customer at www.hubplanner.com.
“Renewal Term” means each Contract Period for extension of the Agreement after the Initial Term. Each Renewal Term is in accordance with the period in the Order Form or if the Customer have entered into a new Order Form in accordance with the new period specified therein.
“Services” means the Hub Planner Service.
“Service Description(s)” means written service descriptions of contents and functionality of the Hub Planner Service and other services, which are available at www.hubplanner.com.
“Service Limitations” means the agreed additional services, such as Extensions added by the Customer.
“Software” means (a) the Supplier’s standard version of the software Hub Planner, according to the module specification in the Order Form, (b) any Third-Party Software specifically agreed to be provided as part of the Hub Planner Service (as set out in the Order Form and/or in the Service Description for the Hub Planner Service), and any modifications or add-ons thereto made by the Supplier and provided as part of the Hub Planner Service (e.g. any standard integrations) and (c) including all Updates provided under the Agreement.
“Supplier” means the company as set out in the Order Form.
“Supplier Materials” means all Software, user manuals, documentation and other materials provided by the Supplier as part of, or in connection with, the Hub Planner Service.
“Support”
means the provision of support services in relation to the Hub Planner Service, including receipt, handling and reporting of support cases which are available at www.hubplanner.com.
“Terms of Service” means this terms and conditions.
“Third-Party Software” means any software provided as part of the Hub Planner Service, and which is owned by a third-party.
“Updates” means new releases, versions, updates, error corrections and bug fixes concerning the Software or other elements of the Hub Planner Service, and which are provided as part of Maintenance.
“Use” means use by or access to the Hub Planner Service, whether direct or indirect and of whatever nature, including by any automatic means (if specifically permitted by the Supplier).
“User” means named users of the Hub Planner Service (employed or engaged by the Customer and/or a Customer Affiliate as permitted herein), who are registered as named users and who have received unique, named user identities and passwords. For clarity, for the purposes of the Volume Limitations, actual Use does not have to be demonstrated in order for a person to count as a User, as already the setting up of access rights by the Customer for any User to the Hub Planner Service will count as Use.
“Volume Limitations” means an agreed volume for Use of the Hub Planner Service, such as number of Users and/or Service Limitations.
