1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Affiliate: includes, in relation to either party, any business entity from time to time controlling, controlled by, or under common control with, either party.
Access: The access in the SOLUTION via login and all data that is displayed online, available for download.
SOLUTION: the application programming interface described in the Specification, the SOLUTION Documentation, [and any other related SOLUTION Materials listed in Part 4 of Schedule 1] as each may be updated from time to time by incorporation of a Maintenance Release or Feedback by Supplier.
SOLUTION Call: each call from an Application via the SOLUTION to interact with the Supplier.
SOLUTION Data: all data (including, for the avoidance of doubt, images) published or made available through the SOLUTION, along with any related metadata.
SOLUTION Key: the security key the Supplier makes available for so that Authorised Users may access the SOLUTION.
Application: an application operated by or on behalf of Authorised Users for the purposes of promoting and operating motor vehicle dealerships and which interacts with the SOLUTION.
Authorised Users: those limited number employees of the Customer which are registered in the Suppliers system as such. The Customer is not allowed to forward access to people outside the organization of the Customer or employees that are not duly registered and authorised in writing by the Supplier to access the SOLUTION with personal login details.
Business Day: a day other than a Saturday, Sunday or public holiday in Sweden when banks in Stockholm are open for business.
Customer Agreement: a written agreement between the Customer and an Authorised User for the access and use of the SOLUTION and SOLUTION Data by the latter.
Data Protection Legislation: the Swedish Data Protection Legislation and any other European Union or other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) [; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Derived Data: data created by the Customer or an Authorised User, now or in the future, which has benefited from, derived from, relied on or made any use of the SOLUTION or SOLUTION Data (including, without limitation, where the Customer or Authorised User has created data by modifying, re-formatting, analysing or performing searches, look ups and/or enquiries whilst using the SOLUTION or SOLUTION Data).
Effective Date: the date of the signature of this Agreement.
Fee: the licence fee payable by the Customer to the Supplier under clause 7.
Feedback: all current and future suggestions, comments or other feedback regarding the SOLUTION or SOLUTION Data provided by or on behalf of the Customer.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or any End User relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151) and the Network and Information Systems Regulations 2018 (SI 2018/506), all as amended or updated from time to time.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Maintenance Release: release of the SOLUTION that corrects faults, adds functionality, or otherwise amends or upgrades the SOLUTION, but which does not constitute a New Version.
New Version: any new version of the solution which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version, which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Release Purpose: those purposes for which the SOLUTION can be used, as set out in Part 1 of Schedule 1.
Usage Data: has the meaning given in clause 9.2.
User System: the Application, together with any other network and information systems (including any hardware, software and other infrastructure) and processes operated by or on behalf of an Authorised User and which is used to access the SOLUTION, make a SOLUTION Call or otherwise communicate or interact with the Supplier.
Virus: any piece of code or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 Unless expressly stated otherwise, or the context otherwise requires:
(a) words in the singular shall include the plural and, in the plural, shall include the singular;
(b) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement].
(c) a reference to one gender shall include a reference to the other genders; and
(d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules, appendices or annexes, the provision in the body of this Agreement shall take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.6 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.7 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.8 For the avoidance of doubt, data can include images such as photographs.
2.1 In consideration of the Fee paid by the Customer to the Supplier, subject to the terms of this Agreement and the limitations set forth in the applicable law, the Supplier grants to the Customer a limited, non-exclusive, non-transferable licence without rights to sublicense, during the term of the Agreement to permit Authorised Users to:
(a) access the solution solely for the purposes of using the solution for insight and management, and
(b) display the Data received from the scanning, together with any Derived Data, within the Authorised Users’ Applications for the Release Purpose.
2.2 The sole means by which Authorised Users may access the SOLUTION, for the purposes of clause 2.1, shall be via the SOLUTION Key.
2.3 In relation to the scope of use set out in clause 2.1, the Customer shall procure that each Authorised User and each End User shall not:
(a) make SOLUTION Data or SOLUTION Key available for non-authorised users;
(b) use the SOLUTION and/or SOLUTION Data in any manner or for any purpose that infringes, misappropriates, or otherwise infringes this Agreement, namely, any Intellectual Property Right, or other right of any person, or that violates any applicable law;
(c) design or permit the Applications to disable, override, or otherwise interfere with any Supplier-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
(d) modify, translate, adapt, or create derivative works based on the SOLUTION and/or SOLUTION Data;
(e) use the SOLUTION, including in any of the Applications, to replicate or attempt to replace the user experience of the SOLUTION;
(f) use the SOLUTION to develop, test, host or run and operate Application on behalf of third parties to this agreement, without Supplier’s prior and express consent;
(g) attempt to cloak or conceal the Customer's identity or the identity of the Applications when requesting authorisation to use the SOLUTION or making a SOLUTION Call;
(h) except to the extent expressly permitted under this clause 2:
(i) combine or integrate the SOLUTION or SOLUTION Data with any software, technology, services, or materials is not allowed in advance by Supplier; pass or allow access to the SOLUTION or SOLUTION Data to any third party;
(ii) access all or any part of any the SOLUTION or SOLUTION Data to build a product and/or service which competes with the SOLUTION or the goods or services provided by the Supplier (or any part of it); or
(iii) exploit, sell, rent, license, sublicense, offer as paid or free subscription, pledge, assign or distribute, or otherwise transfer in whole or in part the solution or data or any products and/or services incorporating the results retrieved using the SOLUTION.
2.4 Except as expressly stated in this clause 2, the Customer shall not and shall procure that each Authorised User and any third party shall not copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the SOLUTION or the Supplier Product, in whole or in part (except to the extent that applicable law overrides this provision or any part hereof).
2.5 The Customer shall not and shall procure that each Authorized User shall not use the SOLUTION or SOLUTION data other than as specified in this clause 2 without the prior written consent of the Supplier.
2.6 Without prejudice to its other rights and remedies under this Agreement, should the Customer or any Authorised User use the SOLUTION or SOLUTION Data other than as specified in this clause 2 without the prior written consent of the Supplier, the Supplier may, in its sole discretion:
(a) terminate this Agreement, or suspend the Customer’s and/or any Authorised User’s access to and/or use of the SOLUTION or SOLUTION Data, on written notice with immediate effect; and/or
(b) require the Customer to pay, for broadening the scope of the licence granted under this Agreement to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 7.3, from such date to the date of payment.
2.7 The Supplier shall be entitled to suspend the access to, and use of, the SOLUTION or SOLUTION Data under clause 2.6(a) until such time as the breach is remedied to the Supplier's reasonable satisfaction, which may include (where payment is required under clause 2.6(b) until the Supplier has received that payment in cleared funds from the Customer.
2.8 The Supplier may replace any SOLUTION Key at any time by the Supplier providing due notice to the Customer.
3.1 Each Customer Agreement shall incorporate those terms which, according to this Agreement, shall be imposed by the Customer on an Authorised User or on any End User, as applicable.
3.2 The Customer shall:
(a) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(b) carry out all of its responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(c) notify the Supplier, and procure that each Authorised User notifies the Customer as soon as it becomes aware of any unauthorised use of the solution or data by any person.
3.3 Subject to clause 14.3, the Customer is responsible and liable for all uses of the SOLUTION resulting from access provided by the Customer, directly or indirectly, whether such access or use is permitted by or in breach of this Agreement, including use with any Application or third-party software. Without limiting the generality of the foregoing, the Customer is responsible for all acts and omissions of Authorised Users in connection with each Application and their use of the SOLUTION or SOLUTION Data, if any. Any act or omission by an Authorized Users that would constitute a breach of this Agreement if taken by the Customer will be deemed a breach of this Agreement by the Customer. The Customer shall ensure that all Authorised Users are aware of this Agreement's provisions as applicable to such Authorised Users and shall cause Authorised Users to comply with such provisions.
3.4 The Customer shall, and shall procure that each Authorised Users shall, monitor the use of the SOLUTION for any activity that breaches applicable laws, rules, and regulations or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behaviour, and promptly restrict any offending users of the Applications from further use of the Applications.
3.5 The Customer shall apply its best efforts to promote Stampyt by conducing appropriate promotion activities, such activities include, but are not limited to web advertising, direct mailing, public relations actions.
4.1 The Supplier shall make Maintenance Releases available to the Customer no later than such releases are generally made available to its other customers.
4.2 As soon as is reasonably practicable after the issue by the Supplier of a Maintenance Release, the Customer shall, or shall procure that each Authorised User shall make any change to any relevant Application that is required for such Maintenance Release to integrate with such Application. Any such require change shall be at the Customer's sole cost and expense.
5.1 The Customer may, in its discretion, provide Feedback to the Supplier, but the Supplier shall not be obliged to take any action in response to the Feedback.
5.2 Feedback, even if marked confidential, will not create any confidentiality obligations on the Supplier unless the Supplier has otherwise agreed in writing, signed by an authorised signatory of the Supplier.
5.3 Without prejudice to its other rights and remedies (including under this Agreement), the Supplier will be free to use, disclose, reproduce, distribute, implement in the Supplier Product or solution and otherwise commercialise all Feedback provided by the Customer without obligation or restriction of any kind, with exception to the personal data protection issues, and the Customer hereby waives all rights to be compensated or seek compensation for the Feedback and will ensure that any relevant moral rights are waived.
6.1 The Supplier, or its representative, may physically or remotely monitor and audit the Customer's and/or any Authorised User’s use of the solution or data to ensure the Customer is complying with the terms of this Agreement, provided any physical audit shall take place on reasonable advance notice and at reasonable times. Such audit may include an audit of the Usage Data to verify the name and password of each End User.
6.2 If the audit referred to in clause 6.1 reveals that the SOLUTION or SOLUTION Data has been used or accessed other than in accordance with this Agreement, then, without prejudice to the Supplier's other rights, the Customer shall, or shall procure that the relevant Authorised User shall promptly disable such access and use and the Supplier shall be entitled to revoke any existing passwords, or not issue any new passwords, to any Authorised User so implicated in the unauthorised use or access.
6.3 The Customer shall keep complete and accurate records to demonstrate its compliance with the terms of this Agreement, and the fulfilment of its obligations under it, including those matters set out at clause 3.2(d) and shall make such records available for inspection by the Supplier, or the Supplier's representative, as part of the audit referred to in clause 6.1.
7.1 The Customer shall pay to the Supplier licence fees set out in Schedule 2.
7.2 All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
7.3 If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 16, the Customer shall pay interest on the overdue amount at the rate of [3 times the Swedish legal interest rate base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.4 Customer acknowledges and accepts that the non-payment of any undisputed fees within the term defined in Schedule 2 constitutes a material breach of this agreement and the Supplier shall have the right to: (i) upon 30 (thirty) days prior written notice, suspend Customer’s right to access or use any portion or all of the SOLUTION until all such due and undisputed amounts and respective interests have been paid; and/or (ii) exercise its right to terminate the agreement under Section 15.
8.1 Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisers or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
8.2 For the avoidance of doubt the SOLUTION and SOLUTION KEY are the confidential information of the Supplier for the purposes of this Agreement.
8.3 The Supplier shall be entitled to reference the Customer as a user of the SOLUTION or data in the Supplier's general marketing literature, including on the Supplier's website and other online platforms. The reference to the Customer for these purposes may include a reference to the Customer's corporate name and to any of its trade names and trademarks.
8.4 Save as provided for in clause 8.3, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8.5 Each Customer Agreement shall include terms which impose upon the relevant Authorised User and any other applicable Authorised User terms which are substantially similar to those set out in this clause 8.
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
9.4 The parties acknowledge that the Usage Data is processed by the Supplier as a personal data controller for the purposes of the fulfilment of its contractual obligations, in accordance with the Data Protection Legislation.
9.5 Without prejudice to the generality of clause 9.1 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data (including Usage Data) to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer this data in accordance with this Agreement; including in relation to the role outlined in clause 9.3.
10.1 The Supplier is not responsible for the operation or security of any User System or Application.
10.2 The Customer and/or each Authorised User, as applicable, shall:
(a) ensure that each User System and Application comply with any relevant specifications provided by the Supplier from time to time; and
(b) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, responsible for procuring, maintaining and securing network connections and telecommunications links from each User System and the Application to the Supplier Product, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the network connections or telecommunications links or caused by the internet.
10.3 The Customer shall and shall procure that each Authorised User shall:
(a) take reasonable steps to:
(i) secure the SOLUTION or SOLUTION Data, and each SOLUTION Key (including all copies thereof) from infringement, misappropriation, theft, misuse of unauthorised access; and
(ii) prevent the introduction of any Virus or Vulnerability into the supplier's network and information systems (including the Supplier Product), via the Customer's (or End User's) use of the SOLUTION, each SOLUTION Key or otherwise.
10.4 The Customer shall ensure that:
(a) each Authorised User adheres to the Security Standards and the Service Levels.
11.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws) to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
12.1 The Supplier undertakes that the SOLUTION shall perform substantially in accordance with the Specification.
12.2 The undertaking at clause 12.1 shall not apply to the extent of any non-conformance which is caused by use of the SOLUTION contrary to the Supplier's instructions, or modification or alteration of the solution by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the solution does not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 12.1.
12.3 Save as set out explicitly in the Specification, the Supplier:
(a) does not warrant that:
(i) the use of the SOLUTION will be uninterrupted or error-free;
(ii) the SOLUTION or SOLUTION Data obtained by through the solution will meet the requirements of the Customer or any Authorised User;
(iii) the SOLUTION or SOLUTION data will be completely secure, free from Vulnerabilities or Viruses and that is not exposed to the risks inherent in internet connectivity;
(iv) the SOLUTION or SOLUTION Data will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the SOLUTION or SOLUTION Data may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
12.4 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
12.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
13.1 To the maximum extent permitted by applicable law, in no event shall either party be liable to the other for any loss of use, lost data, failure of security mechanisms, interruption of business, or any incidental, indirect, special, punitive, or consequential damages, arising from this Agreement, whether under theory of contract, tort (including negligence), or otherwise, even if a party has been advised of the possibility of such damages in advance.
13.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the SOLUTION or SOLUTION Data by any Authorised User, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer or any Authorised User in connection with the SOLUTION, or any actions taken by the Supplier at the direction of the Customer or any Authorised User;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the SOLUTION or SOLUTION Data are provided to the Customer on an "as is" basis.
13.3 Except as expressly stated in clause 13.3:
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contractor otherwise howsoever to the extent permitted by law, which fall within any of the following categories:
(i) Customer’s inability to use the SOLUTION or the SOLUTION Key,
(ii) The cost of procurement or substitute goods or professional services
(iii) Any unauthorized access to, alteration of, or the deletion, destruction, damage, loss, or failure to store any of the Customer’s content due to the Customer’s negligence and or misconduct;
(iv) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(v) loss of profits;
(vi) loss of anticipated savings;
(vii) loss of business opportunity;
(viii) loss of goodwill;
(ix) loss or corruption of data,
provided that this clause 13.2(a) shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 13.2(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 13.2(a); and
(b) the total liability of the Supplier, whether in contractor otherwise to the extent permitted by law and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the total Fees paid during the  months preceding the date on which the claim arose].
13.4 The exclusions in clause 13.1 and clause 13.2 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) any other liability which may not be excluded by law.
13.5 All references to the Supplier in this clause 13 shall, for the purposes of this clause and clause 23 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 23.
14.1 The Customer acknowledges that all Intellectual Property Rights in the SOLUTION, SOLUTION Data and SOLUTION Key belong and shall belong to Supplier or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to other than the right to use it in accordance with the terms of this agreement.
14.2 All rights, title and interest in Derived Data and Feedback shall vest in the Supplier on creation. The Customer hereby freely assigns to the Supplier absolutely with full title guarantee all right, title and interest in and to the Derived Data and Feedback including:
(a) the entire copyright and all other rights in the nature of copyright subsisting in the Derived Data and the Feedback;
(b) any database right subsisting in the Derived Data and the Feedback;
(c) all other rights in the Derived Data and the Feedback of whatever nature, including Intellectual Property Rights, whether now known or created in the future, to which the Customer is now, or at any time after the date of this Agreement may be, entitled by virtue of the applicable laws in force;
(d) the absolute entitlement to any registrations granted pursuant to any of the applications comprised in the SOLUTION, SOLUTION Data, SOLUTION Key and the Feedback;
in each case for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on, or after the date of this Agreement.
14.3 The Customer shall and shall procure that each Authorised User shall promptly notify the Supplier if the Customer becomes aware of any infringement of any Intellectual Property Rights in the SOLUTION or SOLUTION Data, Derived Data, and Feedback and will fully co-operate with the Supplier in any legal action taken by the Supplier to enforce the Supplier's Intellectual Property Rights.
14.4 [The Supplier undertakes its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the solution or data (or any part thereof) in accordance with the terms of this Agreement infringes the applicable Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 14.4 shall not apply where the Claim in question is attributable to possession or use of the solution or data (or any part thereof) by the Customer other than in accordance with the terms of this Agreement, use of the solution or data in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the solution or data not so combined, or use of a non-current release of the solution or data.
14.5 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 14.4 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
14.6 If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the solution or data (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the solution or data so that the same ceases to be infringing;
(c) replace the solution or data with non-infringing versions; or
(d) terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the solution or data to the date of termination) on return of all copies thereof,
provided that if the Supplier modifies or replaces the solution or data, the modified or replacement versions must comply with the warranties contained in clause 12 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.]
14.7 This clause 14 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims [and, for the avoidance of doubt, is subject to clause 13.2].
15.1 Unless terminated earlier in accordance with its terms, this Agreement shall commence on the Effective Date for an initial term of twelve (12) months (the Initial Term) and shall automatically renew for subsequent twelve (12) month periods (each a Renewal Term) unless either party gives the other party written notice of non-renewal at least three months calendar days before the commencement of the next Renewal Term. The Initial Term, together with each Renewal Term, shall be deemed to be the Term).
15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) [the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;]
(b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified [in writing] to do so;
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business [or];
(d) [the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; [or]]
(e) [there is a change of Control of the other party.]
15.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
15.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15.5 On termination for any reason:
(a) Upon termination or expiration, all subscription(s) shall be automatically cancelled, and Customer shall no longer have access to the SOLUTION;
(b) all rights granted to the Customer under this Agreement shall cease;
(c) the Customer shall cease all activities authorised by this Agreement;
(d) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Agreement; and
(e) the Customer shall immediately delete or return to the Supplier (at the Supplier's option) all copies of the SOLUTION, SOLUTION Data and SOLUTION Key then in its possession, custody or control and, in the case of deletion, certify to the Supplier that it has done so.
15.6 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement.
16.1 The Customer shall not, except where permitted in this Agreement:
(a) sub-license, assign or novate the benefit or burden of this Agreement in whole or in part;
(b) allow the SOLUTION or SOLUTION Data or Derived Data to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Agreement,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.
16.2 The Customer shall procure that each Authorised User does not allow the SOLUTION or SOLUTION Data or Derived Data to become the subject of any charge, lien or encumbrance.
16.3 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Customer.
16.4 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.5 Notwithstanding clause 8 a party assigning any or all of its rights under this Agreement may disclose to a proposed assignee, on a confidential basis, any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 16.5 shall be made until notice of the identity of the proposed assignee has been given to the other party.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy, unless such waiver is set out in writing and signed by the waiving party (or its authorised representative). No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 This Agreement, the schedules and the documents annexed as appendices to this Agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
19.2 Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) (Representation) other than as expressly set out in this Agreement.
19.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
21.2 If any provision or part-provision of this Agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
22.2 No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
A person who is not a party to this Agreement shall not have any rights under the Contracts to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available.
24.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations]. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate this Agreement by giving thirty (30) days written notice to the affected party.
26.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or letter with acknowledgement of receipt.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at [9.00 am] on the [second] Business Day after posting, and
26.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
27.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Sweden.
27.2 Any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be settled by means of negotiations. Should they fail to reach a settlement agreement irrevocably ending the dispute within a period of 30 days following a letter with acknowledge of receipt under the forms provided in Clause 26 officially requesting to reach an amicable solution, the disputes shall be submitted in the Stockholm Chamber of Commerce Arbitration.