30 April 2020
These General Terms and Conditions (“GTC”) shall apply when Ombori Apps AB, a company registered under the laws of Sweden, with compa-ny registration number 556841-1333 (“Supplier”) provides services and licenses in respect of Ombori Grid™ to its clients (each as“Client”). The GTC shall be complemented by the order form executed by the Supplier and each respective Client (“Order Form”). The GTC and the Order Form (including all schedules attached thereto or referred to therein) constitute the entire agreement between the Supplier and the Client (“Agreement”). In the Agreement, the Supplier and the Client are each referred to as“Party” and collectively as“Parties”.
The Supplier is entitled to amend these GTC from time to time. If the Supplier determines that any such amendments are detrimental to the Client, the Supplier shall notify the Client thereof no later than sixty (60) days before the amendment comes into force. Other than mentioned, the Supplier is not obligated to notify the Client of amendments to the GTC. The current version of the GTC, as applicable from time to time, is available here.
If the Supplier notifies the Client in accordance with the third paragraph of this Section 1, the Client is entitled, no later than thirty (30) days before the amendment comes into force, to give written notice of termination of the Agreement with effect from the date when the amendment comes into force. If no such notice is given, the Client shall be deemed to have accepted the new terms and conditions.
The Supplier is a supplier of a semi-cloud-based platform for rapid application development, currently known as Ombori Grid™ (“Platform”). The Platform is a Software as a Service (SaaS) offering which allows for the creation of applications for digital interfaces (each an “App”). The App is created by the Supplier, either by means of custom-ized development work or by using templates and components available in Ombori Grid™.
Scope of the Agreement
The Supplier shall deliver App(s) in accordance with the provisions of the Agreement, as well as create, or make changes to, one or multiple App(s) with the help of the Platform (the “Services”) and supply licenses to the Platform and Devices (the “Licenses”) (collectively the “Engagement”).
The Client may request to include additional Licenses than previously agreed and the Supplier undertakes to accept such request (provided that it is reasonable). The Engagement and the remuneration therefor shall in such case be amended accordingly and with immediate effect.
The Client may request to use less Licenses than previously agreed and the Supplier undertakes to accept such request. The Engagement and the remuneration therefor shall in such case be amended accordingly and the amendments shall come into force at the start of the next Extension Period.
The Supplier’s Undertakings
The Supplier shall carry out the Engagement in accordance with the terms and conditions specified in the Agreement and in a professional manner. The Engagement shall, unless otherwise agreed between the Parties, be carried out in accordance with the methods and standards normally applied by the Supplier for similar engagements.
The Supplier shall begin carrying out the Engagement from the agreed starting date.
The Engagement may include performance of Services and resources on a consultancy basis. The Parties are cognisant of the fact that the content of the delivery may alter during the term of the Agreement and there is, hence, no agreed delivery date (save as regard the agreed starting date as of which the Engagement shall be carried out).
The Supplier shall implement updates to or new versions of the Platform to the extent deemed necessary and appropriate by the Supplier.
The Supplier may, with due regard to the provisions on personal data in Section 14, supply all or part of the Engagement from one or several other countries, provided that the Supplier otherwise complies with the terms and conditions of the Agreement.
The Client’s Undertakings
In order to enable the Supplier to supply the Services and carry out the Engagement, the Client shall:
- if the App is deployed to Apple App Store and/or Google Play, pro-vide the Supplier with all necessary log in details for the Client’s Apple App Store and/or Google Play accounts;
- if the Client’s web-based computer programs that communicate and cooperate dynamically with other web services and web ser-vices that permit communication with physical entities, or other data, services or information of the Client (“Client’s Web Ser-vices”) include an order flow, carry out tests to ensure that the or-der flow works in the App;
- if required, cancel test orders placed by Supplier Agents;
- if changes to the Client’s Web Services are required to fulfil the Engagement, make changes to the Client’s Web Services in ac-cordance with the instructions issued to the Client at any time by the Supplier (failure by the Client to comply with instructions is-sued within thirty (30) days of receipt of such instructions shall en-tail a cessation of the Supplier’s responsibility for functionality of the Platform, any App, or any Device);
- review documentation and source data provided by the Supplier, communicate decisions on the approval of such documentation and source data and otherwise continuously supply the information and data required to enable the Supplier to fulfil its undertakings in accordance with the Agreement;
- be responsible to the Supplier for faults or deficiencies in the Cli-ent’s software and/or data used in or in connection with the En-gagement;
- ensure that the Client’s Web Services are free from viruses, Tro-jans, worms, or other harmful software or code, and that the Cli-ent’s Web Services cannot otherwise damage or have a negative effect on the Supplier’s systems or the Engagement; and
- notify the Supplier immediately upon discovery of any infringe-ments or attempted infringements that might have an effect on the Engagement.
Authorisation and Communication
The Parties’ respective contact persons (as set out in the Order Form) are authorised to make binding decisions and to reach binding agreements with regard to the scope or specification of the Engagement. Any change of contact person shall be communicated to the other Party in writing in accordance with the Agreement.
The Parties shall consult with one another and act in consensus during the term of the Engagement. Each Party shall notify the other Party without unreasonable delay and in writing of any circumstances that may entail a change to the preconditions for the Supplier’s performance of the Engagement.
Amendments to the Engagement, the Platform, or the App
The Client may request amendments to the Engagement, the Platform or the App. The Supplier shall respond to such request within reasonable time. The Supplier may in its sole discretion, decide if it accepts the requested amendment.
The Supplier may, without prior notification to the Client, make amend-ments to the Platform or to the way in which the Platform is provided. The Supplier’s rights under this paragraph are limited to amendments that will not cause the Client anything but minor inconvenience. These amendments shall be made available to the Client via a change log accessible online by the Client.
In addition to the Supplier’s rights set out above, the Supplier may, im-plement other amendments than those stated above to the Platform or to the way in which the Platform is provided, by observance of a three (3) months written notice to the Client. After having received the Supplier’s notice, the Client may terminate the Agreement, at the latest when such amendment enters into force, with effect from the date the amendment enters into force or such later date specified by the Client in the notice of termination.
The Supplier is always entitled to implement updates to the Platform and/or the App in order to safeguard the Engagement, the Platform or the App, or otherwise for security related purposes, even if this would incon-venience the Client.
Relationships with Third Parties
The Client shall be the desig-nated originator of all of the App content and shall be solely responsible for the same.
The Supplier shall have the right to use and the Client hereby grants to the Supplier the right to use, the Client’s name, trademarks, brands or other distinguishing marks belonging to the Client for press releases, advertising, marketing, public statements and public disclosures. The Supplier shall be entitled to identify the Client as a customer in the Sup-plier’s advertising and marketing. In the event of termination of the Agreement, the Supplier shall immediately cease and desist any and all use of the Client’s distinguishing marks.
The Client’s Use of the Platform
The Client is hereby granted a non-exclusive, non-transferable, limited, revocable right to make use of the Platform and the App (collectively “Access”). This Access shall remain in effect until the Agreement is terminated by either Party. The Platform and the App are not sold or transferred to the Client, and the Supplier and its Supplier Agents and/or licensers retain ownership of all copies of the Platform and the App even after installation on any comput-ers, mobile handsets, tablets, wearable devices, speakers, and/or other devices (“Devices”).
The Client is not permitted to reverse-engineer, decompile, disassemble, modify, or create derivative works of the Platform, the App or any parts thereof or any of their contents, except to the extent permitted by applica-ble law. The Client is not permitted to copy software that forms part of the Platform or the App. The Client is solely responsible for any software used by the Client when using the Platform and/or the App.
It is the Client’s sole responsibility to ensure that all necessary rights to use all of the Client’s software within the Platform and/or the App are obtained and maintained throughout the term of the Agreement. The Client is solely responsible for maintaining control over information that is managed in the Platform (“User Content”).
The Supplier is not responsible for any User Content nor does it endorse any opinion con-tained in any such content. The Client agrees that if anyone brings a claim against the Supplier related to User Content, then the Client shall indemnify and hold the Supplier harmless from and against all damages, losses and expenses of any kind arising out of such claim.
Restriction of Access
The Supplier may switch off or restrict access to the Platform or the App if the carrying out of the Engagement entails a risk of more than negligible damage to the Supplier. The Suppli-er may not, in conjunction therewith, implement any measures that are more far-reaching than those justifiable with regard to the circumstanc-es. The Client shall be notified promptly of any restriction in access to the Platform or the App.
The Supplier shall, unless otherwise specified in the Order Form, be entitled to carry out planned measures that affect the availability of the Platform and/or the App if such measures are necessary for technical, maintenance, operational, safety or security reasons.
The Supplier shall carry out measures as specified in the second para-graph of this Section 10 with all due speed and in a manner that limits disruptions. The Supplier undertakes to notify the Client in reasonable time ahead of such measures and, if possible, to schedule the planned measures outside of normal working hours or, where relevant, in ac-cordance with the provisions of the Order Form.
The Supplier shall be entitled to prevent the continued dissemination of information in the Platform or the App with immediate effect if it can reasonably be assumed that continued dissemination would breach applicable law. The Supplier shall be entitled to access all information transferred or submitted to the Platform or the App in order to exercise this right. The Supplier shall notify the Client in the event of this right being exercised.
Intellectual Property Rights
The Supplier and/or the Supplier’s Supplier Agents and/or licensers shall retain all rights, including intellec-tual property rights, to the Platform, the App, any Device supplied by the Supplier and any software included in the Engagement. The Client is responsible for ensuring that the App content, including User Content, does not infringe the intellectual property rights of any third party.
The Client is responsible for ensuring that the requisite rights have been obtained for use of the content of the Client’s existing services and of any component applications within the framework of the App. The Client undertakes, at its own expense, to defend the Supplier if any claims are made or suits brought against the Supplier for infringements of third parties’ rights with regard to the use of content for which the Client is responsible in accordance with the Agreement.
The Client undertakes to compensate the Supplier for any costs, losses or damages that the Supplier may be liable to pay as a result of out of court settlements or court judgements. The Client’s undertaking under this paragraph shall only apply if the Client is notified in writing by the Supplier within a reasonable period of time that a claim has been made or suit brought against the Supplier, and provided that the Client is grant-ed sole discretion in determining the defence against such suits and in conducting negotiations with regard to out of court agreements or settle-ments.
The Client shall, in the event of a third party claiming that the App’s use of the Client’s information, content or services infringes upon the third party’s rights, be responsible for ensuring that the requisite rights are obtained.
12 The Client’s Data
The Client shall, in the context of the relationship between the Client and the Supplier, retain all rights to any of the Client’s data stored by the Supplier. Work entailing the transfer of the Client’s data to the Client during the term of the Agreement shall, unless otherwise specified in the Agreement, constitute a supplementary service that presupposes the existence of a separate agreement.
The Client shall be liable for and shall indemnify and hold the Supplier harmless from and against any infringement by the Client’s data of the rights of any third party or any other non-compliance with applicable law.
If the Supplier keeps logs of the App’s usage, data from the log may, unless otherwise agreed between the Parties, solely be used by the Supplier for the purposes required for the execution of the Engagement, to investigate abuse or analyse hacks, to submit information to the au-thorities pursuant to applicable law and, provided that the log does not contain personal data, for development purposes or for statistical pur-poses. If data from the log is used for statistical purposes, it may not contain Client data or data to which a duty of confidentiality applies, in order to ensure that neither the Client nor any individual can be identified. Such statistical analyses may not constitute personal data. The Supplier shall permit the Client to access the data registered by the Supplier with regard to the Platform’s usage in accordance with this Section 13.
The Client is the data controller for personal data processed within the framework of the Platform or the App and the Supplier is a personal data processor. In its capacity as data controller, the Client is responsible for ensuring that the processing of personal data is carried out in accordance with applicable law.
The Supplier undertakes to process personal data solely in accordance with the Agreement and with the Client’s written instructions. The Supplier shall be entitled to remuneration in accordance with the applicable tariff for complying with the Client’s written instructions, if the measure requested is not otherwise specified in the Agreement.
The Supplier shall implement technical and organisational measures agreed between the Parties to protect personal data.
The Supplier shall be willing and able to comply with any orders issued by any governmental authority in accordance with applicable law in relation to any measures required to fulfil the stipulated security re-quirements pertaining to the Client's personal data.
The Client shall compensate the Supplier for any additional costs in-curred by the Supplier as a result of the Supplier complying with the Client’s amended security requirements.
The Supplier shall immediately notify the Client upon discovering any successful or attempted unauthorised access to, destruction of, or amendment to the Client's personal data.
The Supplier shall allow any inspections that a governmental authority may be entitled to require under applicable law with regard to the pro-cessing of personal data. The Client shall compensate the Supplier in accordance with the applicable tariff, for any costs incurred by the Sup-plier in connection with the implementation of such inspections.
If the Supplier uses a sub-contractor to process personal data (“Sub-Processor”), the Supplier, in its capacity of representative for the Client, shall enter into an agreement with the Sub-Processor whereby the Sub-Processor, in its capacity of personal data processor for the Client, undertakes to comply with the provisions of this Section 14. If the Client is based in the EU and personal data will be transferred to a country outside the EU/EEA, the Supplier shall ensure that the Sub-Processor signs the EU’s standard agreement clauses for the transfer of personal data to a third country. The Supplier shall be entitled to enter into the agreement as a representative of the Client. Prior to using a Sub-Processor, the Supplier shall inform the Client of the identity of each Sub-Processor that the Supplier intends to use and specify the country in which the personal data processing will take place. At the Client’s re-quest, the Supplier shall forward copies of all agreements entered into by the Supplier in accordance with this paragraph.
Upon the termination of the Agreement, the provisions of Section 27 shall apply in regard to personal data.
Third Party Applications and Devices
The Platform and the App are integrated with (or may otherwise interact with) third party software, applications, websites, and services (“Third Party Applications”) and third party Devices. Such integration is necessary for the Supplier’s performance of the Engagement. These Third Party Applications and third party Devices may have their own terms and conditions and their own privacy policies, and the Client’s use of these Third Party Applica-tions and third party Devices will be governed by and subject to such terms and conditions and privacy policies. The Client understands and agrees that the Supplier does not endorse and is not responsible or liable for the behaviour, functionality, features, or content of any Third Party Application or Device or for any transaction the Client may enter into with the provider of any such Third Party Applications and Devices, nor does the Supplier warrant the compatibility or continuing compatibility of the Third Party Applications and Devices with the Service.
The Supplier shall comply with industry-standard security directives, unless otherwise specified in the Order Form.
No Party shall disclose Confidential Information to any third party without the other Party’s prior written consent. For the purpose of this Section 17, the Party disclosing the Confidential Information is referred to as the “Discloser” and the Party receiving the Confidential Information is re-ferred to as the “Recipient”.
”Confidential Information” means the existence and contents of the Agreement, any and all of the Supplier’s data and all information (howev-er recorded or preserved) of a technical or commercial nature or other information regarding or otherwise attributable to the Parties or any of their clients, customers, products, pricing, business partners, business or other business matters, marketing and sales activity, business strate-gies or other information that a Party has or may receive or obtain from the other Party or its representatives in connection with the Agreement.
The confidentiality undertakings in this Section 17 do not apply to infor-mation that:
- is already public when the Recipient obtains the information or thereafter becomes public other than as a result of the Recipient’s breach of the Agreement or another undertaking of confidentiality between the Parties;
- is already lawfully in the Recipient’s possession when disclosed to it by the Discloser other than as a result of a breach by a third par-ty of an undertaking of confidentiality in relation to the Discloser which the Recipient is or should have been aware of after having made due and careful inquiries; or
- the Recipient is required to disclose in order to comply with (i) mandatory law, governmental regulation, rules or order by any court or competent jurisdiction or arbitral tribunal; (ii) the rules of any stock exchange or recognized market place where the shares or other securities of the Recipient are listed or quoted; or (iii) any lawful and compelling enquiry by any governmental, official or regulatory body.
If the Recipient is required to disclose information pursuant to Sub-Section (c) above, the Recipient, to the extent legally permissible, shall (i) notify the Discloser of such disclosure before disclosing any infor-mation to allow the Discloser reasonable opportunity to seek protective measures or oppose to such disclosure, (ii) limit the disclosure to the extent possible taking into account the requirement according to which the information is being disclosed, and (iii) use its reasonable endeavors to obtain confidential treatment by the recipient in respect of the infor-mation being disclosed.
Notwithstanding the confidentiality undertakings in this Section 17, the Supplier may disclose Confidential Information to any other entity who, directly or indirectly, controls, is controlled by, or is under common control with the Supplier, where “control” means having more than 50% ownership or the right to direct the management of such entity by way of contract or otherwise (“Supplier’s Affiliates”).
The Recipient may disclose Confidential Information to its employees, directors, owners, representatives and subcontractors who are directly involved in the Engagement and who need access to Confidential infor-mation for the purpose of evaluating, negotiating or advising on the En-gagement (as applicable) (each a “Representative”), provided that (i) the Recipient informs that Representative of the confidential nature of the Confidential Information before disclosure, and (ii) ensures that the Representative and the Representative’s employees complies with this Section 17 in relation to any Confidential Information disclosed to it as if the Representative were the Recipient.
If the App is distributed through the Apple App Store or Google Play, use of the App may result in the personal data of the Client’s end users being processed by Apple Inc. or Google LLC (including affiliates of these companies). These companies’ processing of personal data is excluded from the Supplier’s responsibility in accordance with this Section 17 and is instead subject to the terms and conditions of Apple Inc. or Google Inc. Because of this, the Client is responsible for obtaining the requisite consent from end users for such processing.
The Parties obligations under this Section 17 shall remain in force for a period of five (5) years from the date of termination of the Agreement.
The Supplier shall be free to carry out engagements equivalent to the Engagement on behalf of the Client’s competitors.
Title to all results created by the Supplier within the framework of the Agreement shall accrue to the Supplier, irrespective of whether the result arises as a result of the Client’s order and whether the Client’s payment for the service is provided. However, the Client shall acquire the right to use results that are not part of the Platform, free of charge, both during the term of the Agreement and thereafter, including the right to make its own changes to the results. This right does not limit the Supplier’s right to use such results in agreements with third parties.
The Client shall not, by means of the Agreement, acquire any rights whatsoever to the Platform, the App or any Device supplied by the Sup-plier as part of the Engagement, nor shall the Client have the right to access the Platform’s source code or other software.
Liability for the Platform and the App
The Supplier shall remedy, if remedy is possible, any defects in the Platform or the App with the promptness required by the circumstances. If the App has been materially unusable due to defects in the Platform, the Client is entitled to receive a reasonable reduction in the fee attributable to the Platform for the period from the notification of the defect by the Client and during the time that the defect persists. The Supplier is only liable for defects in accordance with this paragraph if the Client has notified the Supplier of the defect within a reasonable time after discover-ing the defect and if the Client has stated and, if necessary, demonstrated how the defect presents itself. The Supplier is only liable to pay damages as a result of a defect if the defect is caused due to the Supplier’s negli-gence, in which case the limitations set out in Section 21 shall apply.
Any service levels for the Platform agreed by the Parties shall be speci-fied in the Agreement.
The Supplier’s liability for defects in or deficient fulfilment of service levels does not include defects or deficiencies due to the causes speci-fied below, unless otherwise explicitly stated in the Agreement:
- circumstances for which the Client is responsible under the Agreement;
- circumstances outside the scope of the Supplier’s area of liability for the Platform, the App, or the Engagement under the terms of the Agreement; and
- viruses or other security interferences, provided that the Supplier has implemented security measures in accordance with the Agreement or, in the absence of such requirements, in accordance with professional standards.
If the Parties have agreed on service levels, the Supplier’s liability, in the event of non-compliance with agreed service levels, shall be limited solely to price reductions or the payment of liquidated damages in ac-cordance with the specific terms and conditions relating to the agreed service levels. Where the Parties have not agreed on any such price reductions or liquidated damages, the Client shall be entitled to a reason-able reduction in the fees relating to the relevant part of the Engagement in accordance with the first paragraph of this Section 20. Except where as expressly provided for in the Agreement, the Client is not entitled to any damages or other compensation due to non-compliance with agreed service levels, other than in the event of the Supplier’s intentional mis-conduct or gross negligence.
The Client is only entitled to claim sanctions in accordance with this Section 20 if the Client has notified the Supplier thereof in writing no later than ninety (90) days after the Client noticed, or should have noticed, the grounds for the claim.
Limitation of Liability
Each Party’s liability for damages shall be limited to a total sum of 15% of the annual License Fee (as specified in the Order Form) for the En-gagement in question, unless otherwise specified in the Order Form. Neither Party shall be liable for (i) the loss of profit or other indirect damage or loss, or (ii) the other Party’s liability towards a third party, other than in cases specified in Section 11 or with regard to the Client’s liability in accordance with Section 12, Section 14 and Section 28 or any other provision in the Agreement as regards the Client’s liability in rela-tion to the Supplier. The Supplier shall not be liable for data loss other than when any such loss is caused by the Supplier’s negligence in carry-ing out its agreed commitments with regard to backups. The limitation of liability in this Section 21 does not apply in the event of personal injury, each Party’s liability pursuant to Section 11, the Client’s liability pursuant to Section 12, or in the event of intentional misconduct or gross negli-gence.
A Party’s claim for damages shall be submitted to the other Party no later than six (6) months from the date when such Party became aware of, or reasonably should have become aware of, the circumstance giving rise to the claim.
If a Party is prevented from fulfilling its obligations under the Agreement due to a Force Majeure Event, performance by that Party of its obliga-tions under the Agreement shall be extended by any period of delay caused by the Force Majeure Event.
“Force Majeure Event” means war, natural disaster, order of any gov-ernment, court or regulatory body having jurisdiction, blockade, embar-go, riot, civil disorder, epidemic, pandemic or other similar event, in each case where such event was not foreseeable and its effects not capable of being overcome without unreasonable expense or loss of time of the Party who is obligated to render performance under the Agreement.
A Party affected by a Force Majeure Event shall immediately inform the other Party in writing of such occurrence. If a Force Majeure Event should continue for a period of three (3) months or more, either Party is entitled to terminate the Agreement with immediate effect by giving the other Party written notice thereof.
Remuneration, Prices and Payment Terms
The Client shall pay the remuneration specified in the Agreement, or otherwise in the current tariff, for the Supplier’s performance of the Engagement. Services performed on a current account basis shall be invoiced at the agreed hourly rate. All compensation payable by the Client under the Agreement is exclusive of VAT and other additional taxes and charges relating to the Engagement stipulated after the entering into of the Agreement by the Parties. Unless otherwise agreed between the Parties, all fees for the Engagement shall be invoiced for the agreed billing period once the Client receives access to the Platform. The Sup-plier is entitled to invoice monthly in arrears for other contractual remu-neration.
Payment shall be made no later than thirty (30) days after the date upon which the invoice was issued.
If the Supplier incurs additional work or additional costs due to circum-stances for which the Client is responsible, the Client shall compensate the Supplier for any such additional work and any such additional costs in accordance with the Supplier’s then current tariff.
The Supplier shall be entitled to interest on overdue payments in accord-ance with the Swedish Interest Act (Sw: räntelagen, SFS 1975:635).
The Supplier shall, by observance of sixty (60) days written notice, be entitled to unilaterally change the agreed prices and fees. If the Supplier notifies the Client in accordance with the foregoing, the Client is entitled, no later than thirty (30) days before the increase in prices or fees comes into force, to give written notice of termination of the Agreement with effect from the date when such increase in prices or fees comes into force. If no such notice is given, the Client shall be deemed to have accepted the new prices and/or fees.
Term of the Agreement
Unless otherwise specified in the Order Form, the Agreement shall be effective upon signing of the Agreement by both Parties and shall remain in effect for an initial period of twelve (12) months (“Initial Period”). In the absence of a notice of termination in writing, which shall be given no later than three (3) months prior to the expiration of the Initial Period, the Agreement shall be extended for a period of twelve (12) months at a time with a termination period of three (3) months (each an“Extension Period”)
Each Party is entitled to terminate the Agreement (including all or part of any orders hereunder) with immediate effect if the other Party:
- fails to fulfil any of its obligations under the Agreement, provided such failure is of material importance to the non-breaching Party and, provided the breach is being capable of remedy, the Party in breach has failed to remedy the breach within thirty (30) days fol-lowing written notice thereof; or
- becomes insolvent, files for bankruptcy, takes advantage of any legal scheme or arrangement for the satisfaction of creditors, if a petition of bankruptcy, for receivership or for winding up is taken by it or against it or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise.
Without limiting the generality of this Section 26, the Supplier shall be entitled to terminate the Agreement with immediate effect by giving written notice to the Client if a credit rating obtained within ten (10) days after signing of the Agreement, shows that the Client is not creditworthy.
In the event of early termination, the Client is not entitled to re-payment of any Service Fees or License Fees (each as specified in the Order Form).
End of Engagement
Upon termination of the Agreement and upon the Client’s prior written request, the Supplier shall provide the Client with a copy of the Client’s data and, if applicable, any software provided by the Client to the Supplier for the Supplier’s performance of the Engagement. The Client shall submit its request to the Supplier within sixty (60) days after the termina-tion of the Agreement. The Client’s data and, if applicable, software shall be delivered in such electronic format that it has been stored in by the Supplier. After the expiry of any such sixty-day period, and unless appli-cable law requires otherwise, the Supplier shall be entitled to delete, destroy or otherwise rid of any of the Client’s data and/or software held by the Supplier.
The App(s) that use(s) the Platform will cease to work in conjunction with the termination of the Agreement.
The Supplier shall have the right to engage subcontractors for the per-formance of the Engagement (“Supplier Agents”). The Supplier is entitled to, at its sole discretion, replace Supplier Agents during the term of the Engagement.
The Client acknowledges and agrees that the business of the Supplier is highly competitive, that the Supplier invests substantial resources in locating and training Supplier Agents, and that the disengagement or other loss of a Supplier Agent is likely to cause the Supplier severe damage or loss. Accordingly, during the term of the Agreement, and for a period of twenty-four (24) months from the date of termination (the“Pro-hibited Hiring Period”), the Client agrees not to directly or indirectly solicit any Supplier Agent to disengage employment, engagement or retention with Supplier.
If the Client should engage the services of any Supplier Agent during the Prohibited Hiring Period, the Client agrees to immediately inform the Supplier thereof and the Client shall be obligated to pay a fixed fee of USD 50 000 per occurrence to the Supplier. This fee will be payable within thirty (30) days of the Supplier Agent starting work for the Client. The fee does not limit the Supplier’s right to claim additional compensa-tion from the Client if the Supplier’s actual loss is in excess of the fixed fee stated in this paragraph.
Unless otherwise specified in the Agreement, all notices and communi-cations under the Agreement must be made in English, in writing and may be made by hand delivery, letter or e-mail to the addresses of each Party stated in the Order Form. Such notices or communications will be deemed given and effective (i) at the time of delivery, if delivered by hand, (b) three (3) Business Days after being deposited in the post, if sent by letter, and (c) when received in readable form, if sent by e-mail.
In addition to the provisions in this Section 29, the Client may send notic-es and communications to the Supplier through e-mail at email@example.com. Such notices and communications shall be made in English and will be deemed given and effective when duly confirmed by the Supplier’s Representative.
A Party may change the address to which future notices under the Agreement are to be delivered to such Party by giving notice to the other Party in accordance with this Section 29.
References in the Agreement to ”Business Days” are to days other than a Saturday, Sunday or public holiday in Sweden. If any date specified in the Agreement as the last or only day for taking an action falls on a day that is not a business day, then that action may be taken on the next business day.
The use in the Agreement of the word “including” when following any general statement shall not be construed to limit such statement to the specific items or matters following such statement or to similar items or matters, whether or not non-limiting language such as “without limita-tion” or similar is used, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement.
The division of the Agreement into separate sections and the use of headings shall not affect the interpretation of the Agreement.
Transfer of Rights and Obligations
Neither Party may transfer, pledge or otherwise encumber its rights and obligations under the Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, the Supplier may freely trans-fer all or part of its rights or obligations under the Agreement to any of the Supplier’s Affiliates. Furthermore, the Supplier may freely transfer the right to take payment in accordance with the Agreement to any third party.
Changes and amendments to the Agreement are valid only if made in writing and signed by authorized representatives of each Party.
If any provision in the Agreement is held invalid or unenforceable for any reason, the remainder of that provision and the Agreement will continue in full force and effect
Rights and Remedies
Unless otherwise specified in the Agreement, the rights and remedies available to the Supplier under the Agreement are not exclusive, and may be exercised alternatively or cumulatively with any other rights and remedies available to Supplier under the Agreement or otherwise.
In no event shall any delay, failure or omission of the Supplier or the Client in enforcing, exercising or pursuing any right, claim or remedy under the Agreement operate as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy.
The Agreement constitutes the entire agreement between the Parties with respect to its subject matter and replaces all prior agreements, covenants, arrangements, communications, representations and warran-ties (in each case whether oral or written) by any officer, agent, employ-ee or representative of either Party with regard to the subject matter of the Agreement.
The Agreement shall be governed by and construed in accordance with The United Kingdom law.
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 the United Kingdom courts. The language to be used in the arbitral proceedings shall be English. All arbitral proceedings con-ducted or initiated with reference to this arbitration clause and all infor-mation, documentation and material arising therefrom is “Confidential Information” that is subject to confidentiality pursuant to Section 17 (Confidentiality).