Terms & conditions - customer
1 § List of Definitions
1. The Agreement
This Agreement will further be referred to as the “Customer Agreement”.
2. The Parties
The Customer Agreement will be concluded between EIMS 2C (further referred to as “EIMS”) and the exhibitor/user of the Cloud service (further referred to as the “Customer”).
3. Cloud Services
The Cloud service provided by EIMS consisting of (i) Software as a Service (SaaS), meaning the capability provided to the Customer and/or to use the offered applications running on a cloud infrastructure. EIMS does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings, and (ii) Infrastructure as a Service (IaaS), meaning the capability provided to the Customer to provision processing, storage, networks, and other fundamental computing resources where the Customer is able to deploy and run arbitrary software, which can include operating systems and applications.
4. Cloud Services Related Documents
All documents related to the Cloud Services supplied by EIMS to the Customer via the Platform enforced and used by the service provider of the Cloud Services, included, but not limited to customer terms & conditions, end user license agreements, etc.
5. Control Panel
The part of the Platform, made available by EIMS to the Customer, through which (i) the Cloud Services may be ordered, subject to the User login name and password being entered, (ii) the Customer can view the status of orders, (iii) communications with EIMS are possible, (iv) the most recent version of essential information, including the Cloud Service Related Documents, and (v) all invoicing of fee’s for the Platform and for the Cloud Services will be provided.
The employee, agent or subcontractor of a Party.
The separate or joint use of the Cloud Services Delivery Platform, which is a combination of hardware, software and networking components, together forming an Information Technology System, provided by EIMS to the Customer.
8. End User
Individual using the Cloud Services, either privately or as representative of a company, to download, use or distribute content from the platform provided through the Cloud Services.
2 § Subject
1. This Agreement contains the terms and conditions under which EIMS are licensing the Platform and distributing and/or selling the Cloud Services via a Platform to the Customer.
2. In order to safeguard the quality of the Platform, a number of requirements and conditions are stipulated with respect to use of the Platform. These requirements and conditions are set out in Article 8 below.
3. Article 8 of this Agreement contains the service levels to be provided with regard to the Platform. The Customer acknowledges that it has taken note of and reviewed article 8 prior to be able to use the Platform and executing the part of the Agreement relating to the Platform.
4. The Customer hereby accepts the terms and conditions and will at all times adhere and remain compliant to the terms and conditions thereof.
5. EIMS will offer Cloud Services to be provided to the Customer via the Platform. EIMS are entitled to suggest and add Cloud Services to the Platform. These Cloud Services will be the sole responsibility and liability of the Customer. EIMS accepts no liability at all with regard to such Cloud Services, and EIMS will be held harmless against any claims on whatsoever ground in this respect.
3 § Relationship between the Parties
1. EIMS will distribute and license the Platform to the Customer, and will distribute and sell the Cloud Services through the Platform to the Customers in its own name and for its own account and risk.
2. This Agreement does not constitute one Party as representative or agent of the other Party for any purpose whatsoever; except for those stipulated herein. The Customer does not have the right to bind EIMS or to enter into any agreement in the name of or at the expense of EIMS, unless EIMS has authorized the Customer to do so beforehand in writing.
4 § Use of the Control Panel
1. Through the Control Panel (i) the Cloud Services can be ordered, (ii) the Customer can view the status of orders, (iii) communications with EIMS are possible, (iv) the most recent version of essential information, including the Cloud Services Related Documents, and (v) all invoicing of fee’s for the Platform and for the Cloud Services will be provided.
2. All orders for the Cloud Services must be placed by the Customer on the Control Panel, subject to the User's login name and password being entered.
4. EIMS undertakes to make all reasonable efforts to have the Control Panel accessible to the Customer to the largest extent possible.
5. If EIMS establishes that the Customer or a User endangers the operational availability of the Control Panel, Customer's or Users' access to the Control Panel can be temporarily or permanently blocked, without any compensation being due.
5 § The Platform fee and the price for the Cloud Services
1. As remuneration for the access to the Control Panel, the Customer is obliged to pay EIMS an upfront fixed non-refundable setup fee as mentioned on the Control Panel and/or EIMS’ website.
2. As remuneration for the rights and licenses, maintenance and support under this Agreement the Customer furthermore shall pay to EIMS a recurrent annual fixed non-refundable fee as mentioned on the Control Panel and/or EIMS’ website.
3. In case EIMS suggests and adds Cloud Services to be provided to the Customer via the Platform, and EIMS and the Customer have agreed to on board these Cloud Services, the Customer is obliged to pay EIMS an on boarding and/or recurrent fee for the Cloud Services provisioned under this Agreement.
4. The EIMS buying price and the recommended Customer price for the Cloud Services is mentioned on the Control Panel and/or the EIMS’ website.
5. Prices are in currency displayed on the Platform, and exclusive VAT (if not Swedish companies where VAT is added).
6 § Invoicing, Payment
1. The Platform fee and the price for the Cloud Services will be paid online for the first time by ordering, and subsequently recurring in accordance with the term agreed upon by means of advance payments on the platform.
2. All online fee’s for the Platform and for the Cloud Services (from EIMS to the Customer) will be provided through the Control Panel or otherwise, including, but not limited to electronic invoicing and credit card payment. Within the scope of this online invoicing, the names and logos, the bank account numbers and the contact details of EIMS and the Customer will be used. EIMS are using DIBS, PayPal, PayEx or similar generally accepted payment service and do not store payment data from the Customer. After termination or expiration of this Agreement, EIMS will no longer use and delete the aforementioned invoicing data with regard to the Customer. The Customer will be responsible for collecting the respective invoice amounts, contribution of VAT, etc, and the proper and timely delivering of any payments. EIMS will assess whether this way of invoicing is permitted under the applicable laws and regulations (legal and tax), and will inform the Customer accordingly.
3. All invoices must be paid by the Customer within 30 days after invoice date without any discount, setoff or suspension of payments. All payments will be applied, after paying any interest and costs owed, against the oldest outstanding invoice.
4. In the event of failure to pay on the due date, the Customer will owe EIMS ipso jure a late payment fee of 1% for each month or part of a month, and compensation at a fixed rate of 10% of the invoice amount, without the requirement of prior notice of default.
5. Any complaint in relation to an invoice must be sent to EIMS by registered post or email, with substantiation, within 10 days of the invoice date, failing which the invoice will be regarded as having been definitively accepted.
6. Any complaint made pursuant to Article 6.5 does not entitle the Customer to suspend payment of the Platform fee and/or the price for the Cloud Services. The mere fact that EIMS has not received payment from the Customer for the Platform and/or Cloud Services is not a valid reason to postpone the payment of an invoice to EIMS.
7. EIMS reserves the right, in the event of full or partial default on the part of the Customer, to deny the Customer access to the Platform until such time as all outstanding amounts, together with any interests and/or costs, have been paid in full. However, Cloud End User Agreements running at that moment will be observed (with access to the Platform).
7 § Information requirements
1. EIMS shall regularly inform the Customer of relevant statutory provisions, government provisions and regulations which are in force or will enter into force, and which are important for the licensing and use of the Platform and/or the sale of the Cloud Services.
2. The Customer shall in good cooperative manner notify EIMS regarding any general complaints, remarks or recommendations, either experienced by the Customer, or as received from End Users in respect of the Platform and/or the Cloud Services.
8 § Warranty, Service levels, Data Protection, Compliance with law
1. EIMS guarantees that the Platform (i) is allowed/authorized for distribution, (ii) is free of third party claims/rights and (iii) complies with all applicable laws and regulations.
2. The only warranties EIMS provides with regard to the Platform, shall be those set forth in this Article 8. The Customer agrees not to make any (additional or other) warranties, express or implied, to the End User’s without the prior written authorization of EIMS.
3. This Agreement contains the service levels to be provided with regard to the Platform.
4. EIMS undertakes and guarantees that the Customer will be referred and bound to this Agreement.
5. The Customer will at all times adhere and remain compliant to the following principles:
- The Customer declares that it is not connected to the Platform with the aim of deliberately causing damage to the Platform or EIMS. The Customer undertakes to take all due care when using the Platform from EIMS. For example, the Customer will notify EIMS immediately of any faulty configuration, which results in its ability to access any third party data on the Platform. Use of the Platform for bulk e-mails or spam is prohibited.
- The Customer indemnifies EIMS against all claims by third parties for damages suffered as a result of unlawful use of the Platform. The Customer has sole liability for any damage that it may cause to third parties by inappropriate use of the Platform, as in the case of unlawful activities such as piracy or downloading and/or offering illegal text and/or images, etc.
- If EIMS discovers that the Customer is endangering the operational availability of the Platform, EIMS will have the right to temporarily or permanently block access for the Customer without this giving rise to any right to compensation.
- The Customer undertakes to obtain the requisite licenses for all software [M1]it[AS2] intends to use, or to insource use of this software through the intermediary [M3]of[AS4] EIMS. The Customer will indemnify EIMS at all times against any possible third party claims against EIMS in relation to this software.
- EIMS accepts no responsibility and liability for the results of the work of third parties or for integration of that work into the Platform.
6. The Customer has access to the Platform during the term agreed upon between EIMS and the Customer. Given the evolution of technical standards and changing market expectations, the provisions relating to the service levels will be updated from time to time by EIMS.
7. The Customer hereby accepts the terms and conditions of the most recently published provisions on service levels on the Control Panel and will at all times adhere and remain compliant to the terms and conditions thereof.
8. This Agreement contains the terms of guarantee and the service levels to be provided with regard to the Cloud Services.
9. The Customer shall comply with all applicable data protection directives and regulations that impose obligations on processors of personal data. For the avoidance of doubt, EIMS however does not qualify as the controller of the processing of personal data undertook by the Customer, End Users or a third party on the Platform. As processor, EIMS ensures that no unauthorized access to such data is possible and warrants that it will take all appropriate necessary and/or mandatory actions and security measures in this regard.
10. The obligations imposed on EIMS as processor, leave unaffected the obligations that are incumbent on the controllers of the processing, such as the obligations to inform the data subjects of the processing, to assess the security measures in the light of the sensitivity of the personal data in question, to file the processing with Data protection authorities etc.
11. The Customer acknowledges that information processed in the course of performing the Cloud Services may contain personally identifiable information of individuals and associated metadata and that the processing of such information may
therefore involve the processing of personal data. The Customer shall take all necessary measures to ensure that it, and all its employees, are aware of any responsibilities they have in respect of applicable privacy laws and/or regulations. The Customer understands and agrees that EIMS has no control or influence over the content of the data and that the Cloud Services are performed on behalf of the Customer.
12. The Customer shall in the execution of this Agreement and further agreements, which may result therefrom, take into account all applicable statutory and government provisions as well as regulations, including product regulations.
13. The Customer acknowledges and agrees that the Cloud Services and any related technology may be subject to applicable export control and trade sanction laws, regulations, rules and licenses. The Customer agrees to comply with all relevant
laws, including, without limitations the laws of any country from which the technology is exported or re-exported.
9 § Liability, Indemnification
1. Any liability on the part of EIMS for an imputable failure to comply with the Agreement or on any other grounds (including but not limited to the warranty obligation agreed with the Customer) is limited to the amount that EIMS receives from its insurer under its commercial liability insurance in relation to the damage for which the Customer has held EIMS liable.
2. If no insurance payments are made in relation to the damage in question, the liability of EIMS (i) with regard to the Platform will be limited to 50% of the last annual fee for the Platform as determined in Article 6 paid by the Customer to EIMS and (ii) with regard to the Cloud Services will be limited to 50% of the last monthly fee for the Cloud Service concerned as determined in Article 6 paid by the Customer to EIMS.
3. In no circumstances will EIMS be liable to the Customer for any special, consequential, indirect, criminal or incidental loss, including but not limited to losses caused by delays, lost profits, lost savings, increased operational costs, damages caused by the Customer, loss of customers, loss of goodwill, etc., howsoever caused, regardless of the basis of liability, and regardless of whether or not it was advised in advance of the possibility of such damages arising in any way from this Agreement or otherwise.
4. The liability of EIMS due to mutilation, destruction or loss of information, documents or data, howsoever caused, is also excluded.
5. The Customer will be solely responsible and liable, and EIMS cannot be held liable for installation, management, operation, functionality, compatibility and compliance to the license terms of the software vendors (including, but not
limited to any reporting and information obligation) of all software licenses installed by the Customer on the authority of the Customer in combination with the Cloud Services. The Customer will be liable for all penalties forfeited and all direct and indirect damages sustained, caused by any non-compliance, and Customer will indemnify and hold EIMS harmless in this respect.
6. EIMS cannot be held liable for operational problems or performance problems with the local internet connection, as a result of which the Platform and/or the Cloud Services is/are not available.
7. EIMS accepts no liability at all with regard to any Cloud Services suggested by and added to the Platform by the Customer, and the Customer will indemnify and hold EIMS harmless against any claims on whatsoever ground in this respect.
8. The Customer is responsible for the installation of appropriate mechanisms for the security, storage and recovery of data in the event of any irregularity in the implementation of the Platform and/or the Cloud Services.
9. The restrictions and exclusions referred to in paragraphs 1 - 8 above do not apply insofar as the damage in question is caused by an intentional act or gross negligence on the part of the management of EIMS.
10. The restrictions and exclusions referred to in paragraphs 1 - 8 above apply mutatis mutandis to EIMS indemnification obligations as referred to in paragraph 14.
11. Where compliance by EIMS is permanently impossible, EIMS’ liability on the grounds of imputable failure to comply with the Agreement arises only if EIMS receives notice of default in writing from the Customer immediately, in which a reasonable period is allowed to remedy the failure, and EIMS remains in default of its obligations after the aforesaid period. The notice of default must describe the shortcoming in as much detail as possible and as completely as possible, in order to give EIMS the opportunity to respond adequately.
12. Any right the Customer may have to compensation is at all times conditional upon the Customer reporting the damage to EIMS at the earliest opportunity after its occurrence. Any claim for damages against EIMS is extinguished automatically 6 months after the inception of the claim.
13. EIMS indemnifies the Customer against any claims and impending claims by third parties against the Customer, the costs (including reasonable legal fees) of defense against such claims, and any obligations the Customer has to third parties if such claims, costs and obligations are based on or arise from product liability for the Platform or failure on the part of EIMS to properly implement this Agreement with regard to the Platform. This indemnification by EIMS is not applicable if (i) the defect which caused the damage did not exist at the time of delivery or (ii) the damage is caused by any act or omission in relation to the Platform by the Customer or a third party.
14. The Customer indemnifies EIMS against any claims and impending claims by third parties against EIMS, the costs (including reasonable legal fees) of defense against such claims, and any obligations EIMS has to third parties if such claims, costs and obligations are based on, arise from or in connection with the Customer’s, or any third party engaged or employed by the Customer to properly perform the terms of this Agreement.
15. The indemnified Party will notify the indemnifying Party in writing of such a claim at the earliest opportunity and will not consent to liability, settlement or any other compromise without the prior written consent of the indemnifying Party.
The indemnifying Party is entitled, at its own discretion, to take over the defense against such a claim and may choose to settle or otherwise dispose of the claim. The indemnified Party will provide to the indemnifying party any assistance that
the indemnifying Party may reasonably require in connection with responding to the claim. Costs and expenses in such cases will be borne by the indemnifying Party.
10 § Intellectual property rights
1. The Customer expressly acknowledges that the Platform shall be owned by EIMS. This Agreement does not constitute any transfer of any intellectual property right.
2. The Customer undertakes not to infringe or to attack these rights in any way, directly or indirectly, by use or otherwise and neither directly nor indirectly to do any act which would or might invalidate such registration or title, nor apply to vary
or cancel any registered user ship of these rights.
3. EIMS will grant to the Customer a not for resale license for use of the Platform (hereinafter ‘NFR license’) under trade name or mark to be freely chosen, but only for the duration of the Agreement and for the purpose of executing this Agreement.
4. The Customer is not allowed to use any trademarks owned by EIMS without prior written approval. After the written consent of EIMS, the Customer shall only have the right to use these trademarks for promotion and marketing activities under this Agreement.
5. The Customer acknowledges EIMS’ exclusive right in and to the trademarks and agrees that any use of the trademarks shall not create any right, title or interest therein for the Customer, and every use thereof shall inure to the benefit of EIMS. The Customer will not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the trademarks of EIMS or in such a way as to create combination marks with the trademarks. At EIMS’ request, the Customer shall promptly modify or discontinue any use of the trademarks.
11 § Commencing date, Term of the Agreement and Termination
1. This Agreement shall enter into force on the date of acceptance of these Terms & Conditions.
2. This Agreement shall be concluded for an indefinite term, and can be terminated by either Party taking into account a termination notice period of three months.
3. In addition, each Party may immediately and without giving notice or having to pay compensation, terminate the Agreement based on a serious failure of the other Party to perform. A serious failure to perform shall include, but not limited
- a crime committed by the other Party, within or outside the framework of this Agreement;
- the inability of the other Party to comply with the provisions of this Agreement within 10 days after receipt of notice of default sent by registered letter;
- the bankruptcy or court composition of the other Party;
- the liquidation or winding-up of the other Party;
- in the event of unlawful or harmful use of the Platform by the Customer;
- development by the Customer of a directly competing activity or the intention to do so.
4. Each cancellation or termination of this Agreement other than based on Article 11.3, regardless of the reason, must be notified by registered letter. The addressee is deemed to have received the cancellation within three days of the date of dispatch thereof.
5. No claims for indemnity or compensation can be lodged by reason of the termination of this Agreement, save where these claims are based on breach of contract or tort. Investments made by the Customer with respect to the execution of this Agreement are for its own risk and account and cannot be claimed from EIMS in case of termination. Neither shall the Customer be entitled to any goodwill compensation.
12 § Consequences of termination of the Agreement
1. In case of termination of this Agreement, EIMS will not assist or participate in the migration of the Customer from the service of EIMS. The Customer is responsible for necessary actions to maintain data and/or other content from EIMS’ Cloud Service.
2. Otherwise, the Customer shall be obliged after expiration or termination of the Agreement, for whatever reason, to stop the licensing and use of the Platform, the Control Panel, the NFR license and EIMS’ trademarks, and to stop the activation of new Cloud Services and to change running Cloud Services.
3. Expiry or termination of this Agreement in accordance with the terms of this Agreement shall not prejudice or affect any right of action or remedy which shall have accrued at the time of such expiration or termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination.
1. Each Party undertakes to keep confidential from third parties all information of a, technical, operational or financial nature with regard to the other Party or third parties or related to the Platform of which they have become aware during the term of this Agreement, including the contents and the terms of this Agreement. Each Party shall ensure that this obligation will be observed under the same terms and conditions by its Officers.
2. Confidential information shall not be deemed to include the information or data which:
- is uploaded through the Cloud Services by the Customer or another third party as means of, but not limited to, distribution, marketing or information about the Customer;
- was already known to the receiving Party at the time of the announcement by the other Party (this must be proven by the receiving Party);
- is released as a result of statutory obligation or a judicial verdict which has taken effect, in which case the other Party will be notified without delay;
- are within the public domain after being made public, without this being attributable to an act or negligence of the receiving Party;
- are made known to the receiving Party by a third Party having the right to do so.
3. Said duty of confidentiality shall remain in force after the termination of this Agreement for a period of 5 years. Upon the termination of the Agreement, each Party will return all data and documents obtained from the other Party to the latter, without keeping copies thereof, and to permanently discontinue all further use of said data. Each Party shall ensure that this obligation will be observed under the same terms and conditions by its employees and Officers.
4. In the event that one Party shares confidential information acquired from the other Party with third parties, the other Party shall have the right to immediately terminate the Agreement. If the Customer breaches the confidentiality agreement, EIMS can block all access to the Platform without the Customer having any right to compensation. Third parties in this paragraph do not include employees or authorities.
14 § Prohibition to recruit staff
1. During the term of the Agreement and for a period of twelve months following the termination thereof, the Customer is also prohibited from directly, indirectly or through a third party recruiting Officers of EIMS, regardless for which position, non-observance of which will give rise to compensation of the actual damage of EIMS.
2. The Customer shall ensure that the obligations under Article 14.1 shall be observed under the same terms and conditions by its Officers.
15 § Applicable law and disputes
1. The validity, interpretation and implementation of the Agreement is governed by Swedish law.
2. Any dispute relating to the conclusion, validity, implementation and/or termination of this Agreement will be settled by the District Court of Stockholm.
3. Before instituting a procedure before the Court, Parties will, however, attempt to negotiate in good faith in order to reach an out-of-court settlement.
16 § Final provisions
1. This Agreement constitutes the entire agreement between the Parties concerning the subject stated above and supersedes and cancels any prior agreement or any contemporaneous oral agreement between the Parties on the subject.
2. All documents and information available via the Control Panel as referred to in this Agreement form an integral part of the Agreement and are subject to the provisions of the Agreement.
3. Any adjustment or amendment of this Agreement will only be binding upon the Parties if agreed upon in writing and duly signed by both Parties.
4. Should any provision of this Agreement, or the implementation thereof, be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case the Parties, within the limits of the applicable law, will draft a new stipulation that meets the objectives intended by the void or unenforceable stipulation, and include this as an appendix to this Agreement.
5. This Agreement shall be binding upon and inure to the benefit of the Parties, their legal representatives, successors and assigns.
6. Each Party shall bear its own costs of the conclusion and the implementation of this Agreement.
7. The failure of either Party to enforce at any time one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions.
8. The English language of this Agreement shall be the only authentic text.
9. A failure in the performance of their obligations under this Agreement cannot be attributed to a Party if the failure is caused by circumstances beyond the reasonable control of said Party such as fire, flood, strikes, labor unrest or other disruptions of the economy, unavoidable accidents, embargos, blockades, legal restrictions, riots, government measures, non-availability of means of communication, terrorist attacks, war, etc.
10. In case of temporary force majeure the mutual obligations of the Parties shall be suspended until the hindrance is eliminated. Where force majeure persistently prevents fulfillment, by which the Parties also understand a force majeure situation which lasts for more than 90 days, the Agreement shall end by right. The Parties shall then have no right to fulfillment, compensation for this reason and/or postponement.