1.1 These general terms and conditions (the “Terms”) apply to all agreements regarding the use of the Upsales software service or part thereof, provided as a cloud based software, and the related Upsales mobile application (the “Service”). The Service is provided by Upsales Nordic AB, with Swedish company reg. no. 556641-2507, (“Upsales”) to the Customer, in accordance with the Agreement.
1.2 These Terms shall also apply to any other or additional service provided by Upsales to the Customer, such as consultancy services, and such services shall then be deemed included in the “Service” for the purpose of these Terms, unless separate terms are provided.
1.3 The Agreement consists of (i) the Main Agreement, (ii) these Terms, and (iii) any appendices mentioned in the Main Agreement or in these Terms (collectively referred to as the “Agreement”).
“Customer”: The company defined as Customer in the Main Agreement.
“Customer Data”: Any data or information, including personal data and technical information relating to the Customer, or its customers, employees or equipment, provided to Upsales by, or on behalf of, the Customer, by use of the Service.
“Documentation”: Any manual, instruction or other documentation related to the Service, provided through Upsales’ website www.upsales.com or otherwise disclosed by Upsales to the Customer, as changed from time to time.
“Main Agreement”: The contract between Upsales and the Customer that includes prices, term of the Agreement and other terms in regard of the Service.
“Regular User Support”: General information and guidance that Upsales provides to the Customer in response to support requests by the Customer in relation to the Service as prescribed in the Main Agreement or any agreed upon support level agreement. For the avoidance of doubt, Regular User Support shall not include further services provided by Upsales in connection with the Customer’s support requests, such as specific configurations, integrations or adaptions of the Service or other consultancy services.
“Third Party Applications”: Any web or other software services or applications that utilize or interact with the Service, including all software, content, services, technology, data and other digital materials included or made available therein, created, offered, supported and maintained by third parties.
3. The Service
3.1 Subject to the terms in the Agreement and the Customer’s fulfillment of its payment obligations, Upsales gives the Customer a non-exclusive, time limited and non-transferrable license and right to use the Service for the Customer’s own business only, with a maximum number of user licenses as specified in the Main Agreement. Upsales shall be considered to have delivered the Service at the time when Upsales connects the Service to the internet and activates the Customer’s account and user licenses.
3.2 Upsales shall provide the Service in accordance with the methods and standards that Upsales normally uses for the Service. Upsales may make updates to the Service as it deems fit, with one week’s written notice. Changes in layout or graphics as well as other updates that are not expected by Upsales to materially restrict the Customer’s use of the Service may, however, be made without notice.
3.3 Upsales may provide additional services as agreed upon, e.g. analytical tools, database services, consultancy services or specific customisations, subject to separate terms and prices. Upsales may decide on how to integrate such additional services at its own discretion.
4. Use of the Service
4.1 The Customer shall comply with and always use the Service in accordance with the Documentation and relevant laws and regulations, and bears sole responsibility for such compliance. The Customer is entirely responsible for all Costumer Data and activities that occur under its account and user licenses.
4.2 Upsales’ “Fair Usage Policy”, as updated from time to time and made available at Upsales’ website www.upsales.com, contains principles for certain Service functions, such as the number of e-mails that can be sent by use of the Service, and will at all times apply to the Customer’s use of the Service.
4.3 The Service may not be used (i) for any unlawful or other purpose for which it is not intended, including to transmit, upload or post any computer viruses or other harmful files or codes; (ii) in any way so that the functionality of the Service is impaired, or in a way that is damaging or disruptive to other users or their use of the Service or equipment; (iii) in a manner that could be perceived as defamatory or offensive in any way; or (iv) in any other way that could reasonably be expected to affect Upsales or the Service adversely or reflect negatively on the goodwill, name or reputation of Upsales or the Service.
4.4 The Customer shall not copy, modify, create derivative work, reverse engineer or otherwise attempt to discover any source code of, or assign, sub-license or transfer any right in, the Service or part thereof.
4.5 The Customer shall indemnify Upsales from and against any costs or claims, resulting from the Customer’s use of the Service in violation of the Agreement, including this section 4.
5. Information and Security etc.
5.1 The Customer shall provide Upsales with all information reasonably requested in order to set up and provide the Service, and promptly notify Upsales of any change in such information.
5.2 The Customer is responsible for (i) keeping all passwords and account details confidential; (ii) immediately notifying Upsales if suspected or unauthorised access to the Service occurs, or any other breach of security; and (iii) maintaining all equipment, software, applications, communication services and routines, including the security of the Customer’s IT environment’s, required in order to use the Service or otherwise instructed by Upsales from time to time. For the avoidance of doubt, Upsales is not liable for the Customer’s hardware or software, including uploaded files or data, or unauthorised use of the user accounts or of the Service.
6. Availability and Support
6.1 Upsales strives to ensure that the Service operates in accordance with its specifications twenty-four (24) hours a day. Unless otherwise agreed, Upsales shall make the Service available no less than 99.8 % of the time in any given quarter of a calendar year.
6.2 The Service shall be considered available if the login to the cloud based software is operational. Insignificant inconveniences shall not result in the Service being unavailable. In particular, the Service shall not be deemed unavailable when (i) Upsales performs scheduled service or maintenance on the Service, of which the Customer has been informed no less then forty-eight (48) hours in advance; (ii) the downtime is caused by emergency shutdowns, necessary to protect the Service from viruses, DDoS or other hacker attacks, etc.; or (iii) the Service is down due to circumstances beyond Upsales’ control, including, but not limited to, loss of electricity, network or communication. Scheduled service or maintenance, pursuant to item (i) above, shall, to the extent possible, occur outside of usual business hours and not more often than once a month, unless otherwise agreed.
6.3 If the availability of the Service, according to the above, is below 99.8 % during a quarter of a calendar year, the Customer shall be entitled to claim compensation in accordance with the below, where the Quarterly Fee shall correspond to a quarter of the total amount payable by the Customer per contract period of twelve (12) months, as set out in the Main Agreement:
|1||Below 99.8 %, above 99.0 %||10 % of the Quarterly Fee|
|2||Below 99.0 %, above 98.0 %||20 % of the Quarterly Fee|
|3||Below 98.0 %, above 97.0 %||30 % of the Quarterly Fee|
|4||Below 97.0 %, above 96.0 %||40 % of the Quarterly Fee|
|5||Below 96.0 %, above 95.0 %||50 % of the Quarterly Fee|
An availability below 95 % during a quarter of a calendar year shall be considered a material breach and entitle the Customer to terminate the Agreement with immediate effect in accordance with section 8.3.
6.4 Availability under section 6.3 above shall be measured in accordance with the following formula:
A = (M - D) * 100/M , where
A = Availability indicated in percentages,
M = Minutes during a quarter of a calendar year,
D = Downtime during the period “M”, indicated in minutes (excluding scheduled service or maintenance, etc.). Downtime means a material failure leading to the unavailability of the Service for the Customer, subject to what is set out in section 6.2 above. The Customer shall report any downtime to Upsales.
6.5 Upsales performs Regular User Support in accordance with the Main Agreement and, if applicable, any agreed upon support level agreement.
6.6 The Customer shall request support as prescribed in the Main Agreement and any applicable support level agreement.
6.7 This section 6 shall constitute the entire obligation of Upsales towards the Customer in respect of Upsales’ performance and liability in regard of the service level and Regular User Support of the Service, unless otherwise agreed.
7. Prices and Payment
7.1 Applicable prices for the Service are set out in the Main Agreement. All prices are exclusive of VAT and similar taxes. As regards any services for which no specific price has been agreed in writing, Upsales’ standard fees, applicable at the time of delivery, shall apply.
7.2 Unless otherwise agreed in writing, Upsales’ standard fees, as applicable from time to time, shall apply to any additional services and work for which prices are not specified in the Main Agreement. Except for Regular User Support, services provided by Upsales in connection with support requests by the Customer are not included in the prices for the Service set out in the Main Agreement.
7.3 Any overdue payment shall carry interest in accordance with the Swedish Interest Act (SFS 1975:635). In addition to other available remedies, Upsales may immediately suspend the Service, and/or terminate the Agreement with immediate effect pursuant to section 8, if full payment is not received when due.
7.4 Upsales may annually (with effect from the Customer’s next yearly payment period) adjust the prices set out in the Main Agreement in accordance with changes in the SCB Labour Cost Index for non-manual workers preliminary index, SNI2007-code J (Information and Communication business). The base period shall be the first quarter of the year when the Agreement was concluded.
8. Term and Termination
8.1 The Agreement shall enter into force upon signature of the Main Agreement and shall remain in force for an initial period of twelve (12) months following the start date, as specified in the Main Agreement. If neither Upsales nor the Customer terminates the Agreement by giving the other party a three (3) months’ written notice before the end of the initial Agreement term, the Agreement term shall automatically be prolonged with one (1) year at the time, with corresponding terms and conditions and with a three (3) months’ written termination period for each subsequent term of the Agreement.
8.2 The Service is provided for the Term of the Agreement.
8.3 Besides as provided for in the Main Agreement, either party shall be entitled to terminate the Agreement with immediate effect by written notice to the other party, if:
a. the other party has committed a material breach of the Agreement and does not, where possible, fully rectify such breach within thirty (30) days of the other party giving written notice thereof; or
b. the other party is declared insolvent, is subject to an application or order of bankruptcy or company reorganisation, suspends its payments or otherwise can be presumed to be insolvent.
8.4 Upsales is also entitled to terminate the Agreement with immediate effect if the Customer’s use of the Service violates the Agreement, including sections 4-5.
8.5 The following sections shall survive termination of the Agreement: this section 8, section 9, section 10, section 11, section 13, section 14 and section 16.
8.6 Upon termination, the Customer shall not be entitled to recover any excess amount of payments made in advance, unless the Customer terminates the Agreement with immediate effect in accordance with section 8.2 a. above.
8.7 Upon termination, the Customer shall immediately cease its use of the Service and return or delete confidential information or Documentation received from Upsales.
8.8 The Customer shall be entitled to retrieve any Customer Data on the medium chosen by Upsales, provided that the Customer requests this from Upsales in writing within thirty (30) days from termination of the Agreement and pays Upsales for any work associated with this.
9. Customer Data
9.1 When either party processes personal data within the scope of the Service, the Customer or a company on the Customer’s side is data controller and Upsales is data processor. The parties have for that matter entered into a data processing agreement. Upsales may use Customer Data in aggregated or anonymous form, for uses in statistics and product development purposes.
10. Confidentiality and Non-solicitation
10.1 Neither party may disclose to a third party any information received from the other party which is confidential, or can reasonably be assumed to be confidential, including, without limitation, any technical information, information on business secrets, source codes, login information or security methods for access to the Service, and the terms of the Agreement. This does not apply to information that (i) is or becomes publicly known without the breach of the Agreement; (ii) was known to the receiving party prior to receipt from the disclosing party or disclosed by a third party without any obligation of confidentiality; or (iii) the disclosure is required by law, regulatory body or an agreement with a stock exchange where the party is listed, or similar. Each party is responsible for ensuring that their sub-contractors, consultants and employees respect corresponding confidentiality obligations.
10.2 The Customer undertakes during the term of the Agreement, and for twelve (12) months thereafter, not to solicit the employment or other engagement of any person who is or has been directly involved with the performance of the Service. In addition to other available remedies, Upsales shall be entitled to a fixed penalty fee from the Customer corresponding to five (5) price base amounts (Sw: prisbasbelopp), as provided for in the Swedish Social Insurance Code (SFS 2010:110), for each and every breach of this section 10.2.
11. Intellectual Property Rights
11.1 Upsales and/or its licensors hold all intellectual property rights to the Service and Upsales’ website, including any updates, files or data being uploaded to or performed on the Service by Upsales, as well as to the software and source code included in the Service. This includes, without limitation, any patents, copyrights, design rights and trademark rights related thereto. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof.
11.2 If a third party makes an intellectual property claim against the Customer based on the Customer’s use of the Service, the Customer shall (i) immediately notify Upsales in writing of the claim and relevant circumstances; (ii) allow Upsales at its sole discretion and expense, to control the defense of the claim and decide on conciliation in the Customer’s name; and (iii) act in accordance with Upsales’ instructions, assist and cooperate with Upsales to the extent reasonably requested by Upsales, and issue any and all documents (including powers of attorney) needed, without any cost to Upsales.
11.3 If a competent court finally determines that the Customer’s use of the Service in accordance with the Agreement constitutes an intellectual property infringement, Upsales shall compensate the Customer, subject to section 13, for direct costs and damages that the Customer is found liable to pay, provided that the Customer has adhered to its obligations under section 11.2 above. Upsales may further, at its own discretion ensure the Customer’s right to continued use of the Service or corresponding non-infringing service, or cancel the Service and repay the Customer any fees paid for the remaining term of the Agreement, without interest and with deduction of any reasonable benefit the Customer has had from the Service. This section 11.3 constitutes Upsales’ entire obligation towards the Customer with respect to any infringement in a third party’s intellectual property rights.
11.4 The Customer will defend Upsales, at its own expense, against any claim regarding infringement of intellectual property rights caused by the Customer’s use of the Service or Customer Data. The Customer will indemnify and hold Upsales harmless against any costs or damages that Upsales may become liable to pay in relation to such infringement claim.
12. Third Party Applications
12.1 Through the Service and/or Upsales’ website www.upsales.com, the Customer may be able to access and install Third Party Applications for use within the Service. The Customer is aware that such Third Party Applications are provided and licensed to the Customer by the applicable third parties, which are unaffiliated with Upsales.
12.2 The Customer acknowledges that (i) the Customer must use its own discretion when accessing, installing and using any Third Party Applications; and (ii) the Customer’s use of any Third Party Application will be governed by terms and conditions of an agreement between the Customer and the applicable third party (which may include fees and costs), to which Upsales is not a party. The Customer shall always use any Third Party Applications in accordance with the agreements between the Customer and the applicable third parties as well as all relevant laws and regulations, and bears sole responsibility for such compliance. The Customer shall indemnify Upsales from and against any costs or claims, arising out of the Customer’s use of any Third Party Applications.
12.3 Furthermore, the Customer agrees and acknowledges that any Third Party Applications, and applicable third parties, may obtain access to Customer Data, and to store, process and transmit Customer Data outside the Service, as well as data pertaining to the Customer’s use and/or configuration of the Service. Upsales is not responsible for any collection, transmission, disclosure, use or deletion of Customer Data by or through any Third Party Applications or such third parties. Any processing of personal data by third parties in connection with Third Party Applications will be subject to processing agreements to be entered into between the Customer and such third parties.
12.4 Upsales does not own or control any of the Third Party Applications, and the Customer shall not hold Upsales responsible for any Third Party Applications under any circumstances. Upsales does not in any way warrant the functionality, quality, reliability, security, completeness, usefulness or non-infringement of an Third Party Application. Consequently, the Customer bears all risk associated with accessing, installing and using any Third Party Applications. Any support and maintenance of Third Party Applications is to be provided by the applicable third parties, only, in accordance with the agreement between the Customer and such third party. Failure of applicable third parties to provide support, maintenance or other services shall not entitle the Customer to any refunds or other compensation by Upsales.
12.5 Any additional services provided by Upsales to the Customer in relation to Third Party Applications, including without limitation integration and similar consultancy services, shall be a governed by separate service agreement(s) to be entered into between the Parties.
13. Limitations of Liability and Warranties
13.1 No party shall be liable to the other party for failure to perform its obligation under this Agreement if such performance is prevented by circumstances beyond the control of the party, including, but not limited to, acts of authorities, strikes or other difficulties on the labour markets, general shortage of supplies, fire or loss of electricity, communications or data.
13.2 Upsales is not in any event liable for any cost, damage or loss of any kinds caused by or related to (i) any third parties, third party products or services, including but not limited to Third Party Applications; (ii) modifications or changes to the Service made by anyone other than Upsales or made according to the Customer’s or its suppliers’ instructions, or (iii) the Customer’s loss of customers, business, profit, revenue, savings, or goodwill, loss due to operational, power or network interruptions, loss of data or information, the Customer’s potential liability towards a third party or other indirect or consequential damage of any kind.
13.3 Upsales’ total and aggregated liability under the Agreement is limited to the amount paid by the Customer for the Service or for any other service that the claim relates to, during the twelve (12) month period prior to the time the damage occurred.
13.4 Upsales shall not in any event be liable to pay damages if the Customer does not notify Upsales in writing thereof within thirty (30) days after the Customer noticed, or should have noticed, the actual damage or loss, however in no event later than three (3) months from when the damage occurred.
13.5 Except for what is expressly set out in the Agreement, the Service is provided on an “as is” basis and Upsales makes no warranties or representations, whether express or implied, in relation to the Service, including to the completeness, accuracy, reliability, satisfactory quality, and/or fitness for a particular purpose of the Service.
14.1 Upsales shall have the right, during the term of the Agreement and for a period of twelve (12) months thereafter, to have an independent audit firm, selected by Upsales, to perform an audit, to verify that the Customer uses the Service and/or any Documentation in compliance with the Agreement. Such audits may occur up to four (4) times a year (a maximum of once per quarter), and shall be conducted during normal business hours and at Upsales’ own expense, unless the audit reveals a breach by the Customer. The Customer shall cooperate if Upsales performs any audit pursuant to this section 14.
15.1 The Agreement constitutes the entire agreement between the parties, with respect of the subject matter thereof. It supersedes all prior or contemporaneous Agreements or understandings.
15.2 The parties may not assign any of their rights or obligations under the Agreement to a third party without the other party’s prior written approval. However, Upsales may assign its right to receive payment to any third party, without the Customer’s approval.
15.3 Upsales may make amendments to these Terms by giving the Customer four (4) moths’ written notice. Amendments will be effective as from the next yearly payment period.
16. Governing Law and Disputes
16.1 This Agreement shall be governed by and construed in accordance with Swedish law. Any dispute, controversy or claim arising out of, or in connection with, in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of a sole arbitrator. The place of arbitration shall be Stockholm, Sweden, and the language used shall be English, unless otherwise agreed. All such proceedings, information disclosed and decisions made in such proceedings shall be kept strictly confidential. Notwithstanding the foregoing, Upsales may take any legal action necessary at any competent court for collection of delayed payments.