SERVICE AGREEMENT
APPENDIX 1
TERMS OF SERVICE
Updated April 7th, 2021
1. BACKGROUND
1.1 These Terms of Service (“Terms”) apply to Customer´s access to and use of the Service (as defined below) provided by FoF Zervicepoint Sweden AB.
1.2 These Terms is an appendix to the Main Document (as defined below) and is an integrated part of the software as a service agreement entered into between the Customer and the Service Provider.
2. DEFINITIONS
“Affiliates” means such group companies of the Customer as described in the Service Agreement.
“API” means the application programming interface for the Services defined by the Service Provider and made available by the Service Provider to the Customer.
“Customer Data” means all data (including Personal Data and User data) provided by, or on behalf of, the Customer and/or the Users to the Service.
“Customer Login” means the usernames, passwords and other credentials enabling access to the Service.
“Data Processing Agreement” means the data processing agreement which is an appendix to the Main Document and which is an integrated part of the Service Agreement.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
”Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, patents, utility models and rights in designs.
“Main Document” means the contract document with the heading “Main Document” which is signed by the Service Provider and the Customer to which these Terms are an appendix.
“Personal Data” shall have the meaning described in the General Data Protection Regulation (EU 2016/679).
“Platform” means the platform managed by the Service Provider and used by the Service Provider to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed;
“Privacy Policy” means the privacy policy applicable from time to time and accessible at zervicepoint.com/privacy-policy/.
“Service” means the software-as-a-service for self-service business process automation that the Service Provider provides to the Customer under the Agreement via the User Interface and the API.
“Service Agreement” means the Main Document including all of its appendices as amended from time to time.
“Service Fee(s)” shall have the meaning described in Section 3.8 below.
“Service Provider” means FoF Zervicepoint Sweden AB.
“Service Documentation” means the Service specifications and documentation which are applicable from time to time and available at zervicepoint.com/support and accessible through the Customer Login .
“Term” means the term of the Service Agreement, commencing on the date of signing the Main Document and ending in accordance with section 9 of these Terms.
“Users” means the employees of the Customer that are appointed by the Customer as authorized users of the Service in line with the procedure described in the Service Documentation.
“User Interface” means the interface for the Services designed to allow individual human users to access and use the Services.
3. SERVICE AND FEES
3.1 The Service Provider shall provide to Customer upon signing of the Main Document the Customer Login necessary to enable the Customer and its Users to access and use the Service.
3.2 The Service Provider hereby grants to the Customer a worldwide, non-exclusive, non- assignable right to access and use the Service, by means of the User Interface and the API, for Customers and its Affiliates internal business purposes in accordance with these Terms and the Service Documentation during the Term.
3.3 The Customer acknowledges that the Service Agreement is a service agreement and that the Service Provider will not be delivering copies of any software to the Customer as part of the Service.
3.4 Functionalities and specifications of the Service are described in the Service Documentation. The Service Provider may make available new functionalities and updates from time to time and shall update the Service Documentation accordingly. The Service Provider may make available different functionalities at different Service levels and/or Service Fee levels.
3.5 The Service Provider shall use reasonable endeavours to maintain the availability of the Service to the Customer but does not guarantee 100% availability.
3.6 The Service Provider may from time to time suspend the Services for the purpose of maintenance. The Service Provider shall, to the extent possible, ensure that maintenance is carried out outside normal business hours.
3.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Service Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of the Service Agreement; or
(e) maintenance.
3.8 The Service Fees and payment terms are included in the Main Document. Unless otherwise described in the Main Document or otherwise agreed between the Customer and the Service Provider, the Service Fee is based on the number of Users.
3.9 The Service Provider may discontinue Customer’s or Users access to parts of or all of the Service with immediate effect if :
(a) Customer’s or Users use of the Service (i) pose a security risk to the Service, the Service Provider or any third party, or (ii) could adversely impact Service Provider’s systems, the Service or the systems or content of any third party (including Service Provider’s other customers),
(b) Customer or Users are in breach of these Terms, or
(c) Customer are in breach of its payment obligations according to Fee Schedule.
If the access to the Service is discontinued the Service Provider may at its sole discretion chose to terminate the Agreement in line with Section 9.3 or if remedied by the Customer give the Customer or Users access again to the Service. During the period while the access to the Service is discontinued the Customer will remain responsible for all Service Fees accrued.
4. CUSTOMER OBLIGATIONS
4.1 The Customer shall add and remove Users by following the procedure described in Service Documentation.
4.2 The Customer shall use the Service as described in the Service Documentation or other instructions made available by the Service Provider in writing.
4.3 The right to access and use the Service granted to the Customer under Section 3.2 above is subject to the following conditions:
(a) The Customer may not sub-license its right to access and use the Service;
(b) The User Interface may only be used by the Users and must not be used at any point in time by more than the number of Users specified in the Service Documentation.
(c) The Customer may not use the Services to provide services to third parties; and
(d) The Customer may not republish or redistribute any content or material from the Service and/or Service Documentation.
(e) The API may only be used by an application or applications approved by Service Provider in writing and controlled by the Customer.
(f) Except for customizations and modifications allowed by the Service Documentation the Customer may not copy, modify, develop, or in any other way amend the Service or permit any third party to do so, or decompile or disassemble the Service or by any other means recreate the Service’s source code, except for what is permitted under mandatory law.
(g) The Customer may not use the Services in any way that is unlawful, illegal, fraudulent or harmful or in connection with any such purpose or activity.
4.4 The Customer is responsible to ensure that the Users are bound by these Terms when using the Service and The Customer is responsible for any and all acts and omissions of its Users, including their compliance with these Terms.
4.5 Where applicable, the Customer may enter into a separate support services agreement with third party support services provider regarding support services provided in relation to the Service. The Service Provider is not responsible for acts and omissions of third-party service providers.
5. CUSTOMER DATA AND INTELLECTUAL PROPERTY RIGHTS
5.1 The Customer retains all rights, title and interest, including any Intellectual Property Rights, in the Customer Data. The Customer (for itself and all of its Users) grants the Service Provider a worldwide, non-exclusive, limited term license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Customer Data to the extent required for the performance of the Service Providers obligations and the exercise of the Service Providers rights under the Service Agreement. The Customer also grants the Service Provider the right to sub-license these rights to its hosting, connectivity and telecommunication service providers.
5.2 The Customer is responsible for:
(a) development, content, operation, maintenance, and use of the Customer Data,
(b) ensuring that the Customer Data and Customer’s, Users and Service Providers use of the Customer Data will not infringe the Intellectual Property Rights of any third party or violate any applicable laws, and
(c) taking appropriate action to secure, protect and backup Customer’s and Users accounts and the Customer Data in a manner that will provide appropriate security and protection, which might include use of encryption to protect the Customer Data from unauthorized access and routinely archiving the Customer Data.
5.3 With respect to Personal Data, the rights and obligations of the Customer and the Service Provider are included in the Data Processing Agreement.
5.4 More detailed terms about the collection, use and disclosure of Personal Data is included in the Privacy Policy.
5.5 The Service Provider shall maintain administrative, physical, and technical safeguards at a level not materially less protective than in applicable Nordic industry standards. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel.
5.6 The Service Provider, or any third party from whom the Service Provider derives its right, owns and shall retain all rights, title and interest, including any Intellectual Property Rights, in and to the Service.
5.7 Nothing in the Service Agreement shall be deemed as an assignment or transfer of any Intellectual Property Rights from the Service Provider to the Customer or from the Customers to the Service Provider.
6. WARRANTIES AND WARRANTY LIMITATIONS
6.1 The Service Provider warrants to the Customer that the Service, when used by the Customer in accordance with the Service Agreement, will not breach any laws, statutes or regulations applicable under Swedish law.
6.2 The Service Provider warrants to the Customer that the Service, when used by the Customer in accordance with this Service Agreement, to the best of its knowledge will not infringe the Intellectual Property Rights of any third party.
6.3 If the Service Provider reasonably determines, or any third party alleges, that the use of the Service by the Customer in accordance with the Service Agreement infringes any third party’s Intellectual Property Rights, the Service Provider may at its own cost and expense:
(a) modify the Service in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Service in accordance with this Service Agreement.
6.4 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs and the Service Provider gives no warranty or representation that the Service will be wholly free from defects, errors and bugs.
6.5 The Customer acknowledges that complex software is never entirely free from security vulnerabilities and the Service Provider gives no warranty or representation that the Service will be entirely secure.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1 The Service Provider shall indemnify the Customer from and against any liability to third parties arising from a claim that the use of the Service infringes upon such third party’s Intellectual Property Rights provided, however, that the Service Provider shall have no liability if such claim arises from (a) Customer Data or (b) any modification, combination or development of the Service that is not performed by the Service Provider or its affiliates, including in the use of any application programming interface (API), if applicable.
7.2 The Customer shall indemnify the Service Provider from and against any liability to third parties arising from Customer’s or any of its Users violation of these Terms.
7.3 In events described in Sections 7.1 and 7.2 above, the party making the claim must provide the other party with prompt written notice of any claim and allow such other party the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting defence and settlement of such matter.
7.4 Neither party shall be liable to the other party for loss of profit, production, goodwill or other indirect damage or loss, including the other party’s liability to pay compensation to a third party, or for loss of data.
7.5 The maximum liability of the Service Provider to the Customer under the Service Agreement in respect of any event or series of related events shall not exceed the amount paid and payable by the Customer for twelve (12) months Service Fees.
7.6 The limitation in respect of a party’s liability in damages pursuant to this section 7 shall not apply where the party has acted intentionally or grossly negligent.
7.7 Neither party shall be liable for delay or damage caused by a Force Majeure Event.
8. CONFIDENTIALITY
8.1 During the term of the Service and a period of 3 years thereafter, each party undertakes not to disclose information to any third party regarding the other party’s activities which may be regarded as business or professional secrets or information that is subject to confidentiality undertaking by law without the other party’s consent. Information which a party has indicated as confidential shall always be regarded as a business or professional secret. The duty of confidentiality does not include information that a party can prove has come to its knowledge other than under the use of the Service, or which is generally known provided that information has not been known for party/the public by a party’s breach of this confidentiality undertaking in this section. Nor does the duty of confidentiality apply where a party is obligated to disclose any information under law. Where a party is obligated to disclose information under law, the disclosing party shall notify the other party thereof prior to disclosure.
8.2 Each party shall ensure that the duty of confidentiality pursuant to above is observed by the party’s personnel, consultants and contractors/suppliers, including, in the case of the Customer, the Users
9. TERM AND TERMINATION
9.1 These Terms are valid for as long as the Customer or any of the Users use the Service.
9.2 Either party may terminate the Service Agreement by giving the other party at least one (1) month written notice of termination.
9.3 The Service Provider may terminate the Service Agreement with immediate effect by giving written notice of termination in situations described in Section 3.8.
9.4 Either party may terminate the Service Agreement with immediate effect by giving written notice of termination to the other party if the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors and an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.
10. EFFECTS OF TERMINATION
10.1 Upon termination of the Service Agreement all of the provisions of the Service Agreement shall cease to have effect. However, it shall not affect the Customers obligation to pay the Service Provider any accrued Service Fees in respect of the Service provided to the Customer before the termination of the Service Agreement.
11. MISCELLANEOUS
11.1 Neither party may, without the other party’s written consent, transfer or otherwise assign, partially or in full, any of its rights or obligations pursuant to the Service Agreement. Without prejudice to the foregoing, the Service Provider may transfer its rights and obligations pursuant these Terms in connection with business transfer concerning the Service.
11.2 Should any provision in these Terms or part thereof be found void or invalid, the other provisions of these Terms shall remain in force and the provision may be amended to the extent such invalidity materially affects the rights or obligations of either party pursuant to the Service Agreement.
11.3 The Service Provider reserves the right to update or change to the Service, Service Descriptions, the fees (Fee Schedule) as well as these Terms from time to time. In the event of material changes (such as increases in the fees), the Customer is given a reasonable notice prior to the change taking effect. Material changes will become effective on the date set forth in the notice, and all other changes will become effective upon posting of the change.
12. DISPUTE RESOLUTION
12.1 The Service Agreement shall be governed by Swedish law, without regard to its conflict of law provisions.
12.2 Any dispute, controversy or claim arising out of or in connection with the Service Agreement or these Terms, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The seat of arbitration shall be Gothenburg and the language to be used in the arbitral proceedings shall be Swedish.
12.3 The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
12.4 Where, in the event of a dispute, the value of the claim does not exceed the so called Price Basic Amount pursuant to the Social Insurance Code (2010:110) (Sw. Socialförsäkringsbalken (2010:110)), the dispute shall be settled by the District Court of Gothenburg. In addition, in regards of such claim, neither party shall be prevented from obtaining a summary judgement (Sw. betalningsföreläggande).
12.5 The Parties undertake, indefinitely, not to disclose the existence or contents of any judgment or decision related to or in connection with the Service Agreement or any information regarding negotiations, arbitral proceedings or mediation in connection therewith. This confidentiality undertaking shall not apply in relation to information, which a party is required to disclose by law, pursuant to an order of a governmental authority, pursuant to applicable stock exchange rules, or which may be required for the enforcement of a judgment or an award.
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