STRUCTURE OF THE AGREEMENT
The agreement consists of: (i) the Order Form (if applicable); (ii) these Terms; (iii) applicable Service Descriptions (as available on the Website and the Platform); and (iv) any other document or instruction referred to in any of the aforementioned documents.
The content of the agreement as listed above will collectively be referred to as the “Agreement”. In case of any inconsistencies between the Agreement documents, the documents shall take precedence in the order presented in Section 1.1 above.
DEFINITIONS The following expressions shall have the definition as presented in this Section 2: “Admin” means the User that Register to the Service and is the User with first-hand responsibility of your account of the Service; “Confidential Information” means any and all information relating to a Party’s business, which is or can be reasonably presumed to be confidential; “Effective Date” means the first day of your Subscription Term. Consequently, your first Effective Date is the date of Registration or the date indicated in the Order Form, as applicable; “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs; “Order Form” means document signed by you and Tendium in case you enter into the Agreement following an individual offer from Tendium; “Pilot Agreement” means the agreement between you and Tendium for the use of Tendium’s service(s) that the Parties may have entered into during Tendium’s development of the Service, titled Pilot Agreement (Sw. Pilotavtal); “Platform” means https://app.tendeye.com; “Register”, “Registering”, or “Registration” means your registration as an Admin of the Service through the Platform or, if applicable, your signing of the Order Form; “SCC” means the Arbitration Institute of the Stockholm Chamber of Commerce; “Service” means Tendium’s online, cloud-based platform Tendeye and the applications therein, provided by Tendium from time to time via the Platform and as described in any applicable Service Description; “Service Description” means applicable description of the Service as available on the Website and the Platform; “Subscription Fee” means the applicable fee for your subscription to the Service, as set forth in applicable Subscription Plan or Order Form; “Subscription Plan” means the subscription plan applicable for your subscription to the Service and as offered by Tendium from time to time on the Website and the Platform or according to an applicable Order Form, and includes your Subscription Term and Subscription Fee; “Subscription Term” means the term of your subscription of, and availability to, the Service as specified in your Subscription Plan or applicable Order Form and also indicates the cycle of your payments; “Tendeye” means the Service; “Tendium” means Tendium AB with reg.no. 559169-6843 and address Box 4122, 10263 Stockholm, Sweden, which is the supplier of the Service; “Third-Party Applications” means online, web-based applications and offline software products or services that (a) are provided by third party; (b) interoperate with Tendium; and (c) may be either separate or conjoined with Tendium whether or not such are indicated by Tendium as being third-party applications;
“User” means you, the user of the Service, with a user account connected to your subscription of the Service, and includes both the Admin and additional user(s) connected to your account of the Service; “Website” means https://tendeye.com; “Web Harvesting” means web harvesting software bots, scripts, web crawlers or any other method of automated data retrieval; “you” or “your” means the organisation you represent as the buyer of the Service and includes every User. The expressions include your personal representatives, employees, agents, and other such representatives using the Service; and “Your Data” means all content, data or information processed and/or submitted directly or indirectly by you or on your behalf (with or without your permission) in relation to your use of the Service.
When you enter into the Agreement on behalf of your organisation you represent and warrant that you have the necessary authority to legally bind such organisations. Subject to your fulfilment of your payment obligations hereunder you are granted a restricted, non-exclusive, and time limited right to use the Service in accordance with the terms of the Agreement. The Service is provided on a subscription basis during your Subscription Terms in accordance with your Subscription Plan or Order Form, as applicable. Tendium shall provide the Service and you shall pay the Subscription Fee for the Service from the Effective Date in accordance with the applicable price for your Subscription Plan or in accordance with the Order Form, if applicable. Users of the Service shall comply with the terms of the Agreement. You shall indemnify and hold Tendium harmless from any costs or claims by a third party based on your use of the Service in violation of the Agreement and/or applicable law.
Tendium reserves the right to make improvements, additions, and changes, and to remove functions of the Service at Tendium’s own discretion, without giving prior notice to you. Your continued use of the Service after such change(s) has been implemented will constitute your acceptance of such change(s). With the Service, you will be presented with information on public procurements within two (2) workdays after the day when all procurement documents, belonging to the public procurement in question, was made publicly available and accessible through a notice on a public database subject to Tendium’s present monitoring. Information on public procurement presented through the Service is based on the content in public and published information available and accessible to Tendium during the performance of the Service. Tendium does not undertake any reasonability of any sorts regarding the accuracy or completeness of the content in such public and published information or Your Data.
YOUR USE OF THE SERVICE
Unless otherwise agreed, you are responsible for the following: (i) to maintain the equipment, software and communication services required to use the Service; (ii)
4.3 4.4 4.5
to provide required information to Tendium, review the actions of and make decisions that are necessary for Tendium to be able to provide the Service; and
(iii) to promptly notify Tendium of any change at your end that may affect Tendium and/or the Service. You are fully responsible for maintaining the security of your IT-environment, such as the operating environment, networks and applications. For the avoidance of doubt, Tendium is not liable for your hardware and software being affected adversely by the use of the Service. You may not in any way attempt to reverse engineer, decompile, otherwise recreate the Service, or make copies for archival or disaster recovery purposes, other than as by, at each time, permitted by mandatory law. You are obliged to follow applicable user guidelines and limitations set out in these Terms, Service Descriptions on the Website, the Platform, and/or any other written instructions from Tendium for the use of the Service. If your use of the Service jeopardizes the Service or any other customer’s use of it or if Tendium, at its sole discretion, believes that you have been and/or are misusing the Service in any other way, Tendium is at its own discretion entitled to impose restrictions for your use of the Service or suspend you from the Service until remedied by you, alternatively terminate the Agreement with immediate effect and/or refuse your Registration. You must in particular not: (i) make the Service available to anyone other than as permitted in these Terms; (ii)
sell, resell, rent or lease access to the Service;
(iii) use the Service to store or transmit intellectual property rights infringing the rights of third parties, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third party’s right under applicable data protection law; (iv) use the Service to store or transmit Malicious Code;
(v) interfere with or disrupt the integrity or performance of the Service or any Third-Party Applications; or (vi) attempt to gain unauthorised access to the Service or thereto related systems or networks. You may not access the Service to monitor its availability, performance or functionality unless explicitly agreed otherwise. You agree to not access or attempt to access the Service using any portal, interface or means other than the interfaces and application programming interfaces provided by Tendium. Unless Tendium explicitly agreed otherwise in writing, you agree that you will not access or make use of the Service using automated means (including the use of scripts and web crawlers). You must also comply with any directives Tendium may make in respect of the Service using a Robots Exclusion Protocol, robots.txt file, Robots Exclusion Standard, or other such method. You warrant that you: (i) have adopted adequate policies and procedures to prevent retrieval of Your Data from the network by Web Harvesting; (ii) will take appropriate technical measures to (a) block the IP addresses behind any Web Harvesting activity; (b) identify the IP addresses behind or sources of Web Harvesting activity; (c) monitor Web Harvesting activity; and (d) verify that any Users of the Service are not engaged in Web Harvesting; and (iii) will, if reasonably requested to do so by Tendium, take action against any Web Harvesting activity if Tendium deems that such activity is affecting the use, profitability, or effectiveness of the Service.
USER OF THE SERVICE
Each User’s account is strictly personal. You are always responsible for ensuring safe management of login details such as usernames and passwords for the Service and shall keep your password and the User identification you use to access the Service secure. You are solely responsible for all activities that occur in respect of your user account(s), whether such occur with your permission or not. If you become aware of unauthorised use of your user account, you shall notify Tendium immediately. The Admin is responsible for your user account in terms of payment for your Subscription Plan.
DELIVERY AND SUPPORT
When you Register or add User(s) to your account, Tendium will deliver the Service to you as soon as you fulfil your payment obligations hereunder, in accordance with the applicable Subscription Fee. The Service is provided “as is” and “as available” during your Subscription Term with no liability for Tendium in respect of availability or support.
FEES AND PAYMENT
From time to time applicable prices for the Service (the Subscription Fee) and the currencies in which Tendium accepts payment can be found at the Website and/or the Platform, unless specifically agreed in an applicable Order Form. All prices are exclusive of applicable VAT. Unless specifically agreed upon Registration you shall pay the Subscription Fee in advance for the Service from the Effective Date. Unless specifically agreed upon Registration, payment shall be made by the methods of payment offered by Tendium from time to time. If payment is made by invoice, payment is due thirty (30) days from the invoice date. By paying for the Service by card, you authorise Tendium to automatically charge the Subscription Fee upon Registration or your first Effective Date according to applicable Order Form, as well as, if applicable, upon you adding a User to your account and on the Effective Date(s) of your automatically renewed Subscription Plan, in accordance with Section 12.2 and/or 17.1 below.
As part of Registering, you agree to provide Tendium with accurate and complete billing information.
If payment of any Subscription Fee is late or incomplete, Tendium is entitled to interest on overdue payment in accordance with the Swedish Interest Act (1975:635), a reasonable late payment charge, and/or a debt collection fee according to applicable laws. Tendium is entitled to charge you a reminder fee for sending you a past due notice regarding your late payment.
In addition to any other available remedies under the Agreement, if full payment is not received within ten (10) days from the date a written payment reminder was sent by Tendium, Tendium may immediately suspend you from the Service, and/or terminate the Agreement with immediate effect pursuant to Section 17.5.
THIRD PARTY APPLICATIONS You acknowledge and agree that Tendium may allow providers of Third-Party Applications to access Your Data as required for the interoperation of those Third-Party Applications with the Service.
INTELLECTUAL PROPERTY RIGHTS
Tendium and/or Tendiums licensor(s) hold all rights, including all intellectual property rights, related to the Service and any therein included software and source code, including but not limited to patents, copyrights, design rights, and trademarks. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof, to you. Should the Service in any way require Tendium’s use of intellectual property rights held by you or your licensor(s), Tendium is granted a license by you to utilise such intellectual property rights for said purpose for as long as the Service is provided to you. You shall not have the right to remove or alter any proprietary markings of Tendium in the Service unless explicitly agreed between the Parties. Tendium agrees to indemnify, as set out under Section 9.5 below, you, from any claims by a third party based on your use of the Service, or part thereof, infringing any such third party’s intellectual property rights. Tendium’s obligations in accordance with this Section 9.3 shall only apply for such claims by third parties in the country where you are established and are subject to you (a) only having used the Service in accordance with the conditions set forth in the Agreement; (b) not having used, operated or combined the Service with hardware, software, data, documentation or other equipment not approved by Tendium if such infringement would have been avoided but for such use, operation or combination; (c) the Service not having been altered by you or used in a way deviating from its construction or its intended purpose; and (d) that you notify Tendium in accordance with Section 9.4, below. Tendium’s obligation to indemnify under this Section 9 applies provided that you: (i) without undue delay notify Tendium of the claims brought against you; (ii) allow Tendium to control the defence and to solely decide in all related settlement negotiations; and (iii) act in accordance with Tendiums instructions and cooperate with and assist Tendium to the extent reasonably requested by Tendium. Subject to the conditions under Sections 9.3–9.4 above, Tendium shall within the agreed limitation of liability indemnify you for such damages, liabilities, costs or expenses awarded in a final judgment or settlement which has been approved in writing by Tendium. You shall indemnify Tendium against any and all claims, demands, suits or proceeding made or brought against Tendium by a third party alleging that the Your Data or your use of any Service in breach of this Agreement infringes such third party’s intellectual property rights or violates applicable law, and will indemnify Tendium from any cost or damages which Tendium may be obligated to pay in accordance with a judgment, arbitral award or settlement. Your undertaking shall only apply provided that you, without undue delay, is notified by Tendium in writing of the claim or action, and that you are given the sole right to control the defence against such action and decide on any agreement or settlement. If it is finally determined that there is an infringement of a third party’s intellectual property rights for which Tendium is liable under these Terms, Tendium shall at its own discretion: (i) procure for you the right to continued use of the Service; (ii) modify the Service so that it does not infringe; (iii) replace the Service, or part thereof, with an equivalent service which does not infringe; or
(iv) cancel the Service and repay the fee that you have paid for the Service without interest and with deduction of any reasonable benefit you might have had from the Service. 9.8
With respect to Third-Party Applications, Tendium’s liability for errors or intellectual property infringements is restricted to an obligation to report the fault/infringement to the relevant third-party supplier immediately. Tendium shall implement any potential solution from the third-party supplier, provided this can be done without negative interference with the Service.
This Section 9 constitutes the entire obligation of Tendium towards you with respect to any infringement in a third party’s intellectual property rights.
9.10 You grant Tendium a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use and/or incorporate into the Service or any other services and products of Tendium, any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation of Tendium. The license includes the right to modify and further develop any of the aforesaid. Any sub-licensee shall have the corresponding rights, as decided by Tendium. Tendium does not have any obligation to implement any adjustments suggested by you. 9.11 Tendium is entitled to use Your Data to improve the Service, functions therein, and other services and products of Tendium.
10.1 The Parties hereby agree not to, without the other Party’s prior written approval, publish or otherwise disclose Confidential Information about the other Party to a third party for any other purpose than the execution of this Agreement. The Parties also agree not to use Confidential Information about the other Party for any other purpose than the execution of this Agreement. The confidentiality undertakings in this Section 10 shall not include:
information that is or becomes publicly known, other than through a breach of this Agreement; information that is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; (iii) information that was known to the receiving Party prior to receipt from the disclosing party, without obligation of confidentiality; or (iv) the disclosure or use of information is required by law, regulations or any other regulatory body. Information which a Party has classified as Confidential Information shall always be treated as Confidential Information. Tendium will not modify or disclose Your Data except where the Terms permit or require such disclosure nor will Tendium access Your Data, expect as required to provide the Service, to prevent or address Service or technical problems or at your request in connection with customer support matters. Tendium is however entitled to disclose, use and access Your Data for the purpose under Section 9.10, provided that no Confidential Information is disclosed to a third party. Each Party agrees to impose on its employees, consultants, and other representatives, in an appropriate manner, the above obligations of confidentiality in this Section 10. The Parties shall ensure that any subcontractors engaged, together with any of their employees involved in the assignment, sign a confidentiality undertaking containing equivalent provisions to the benefit of the other Party. The confidentiality undertakings in this Section 10 shall remain in effect during the term of this Agreement and for a period of five (5) years after the termination of the Agreement regardless of the reason for the termination.
11.1 The yearly Subscription Plan comes with a refund policy, as described in this Section 11.1: If you are not satisfied with your initial purchase of the Service, you may terminate the Agreement with immediate effect by providing Tendium with a written notice or directly in the Platform, within thirty (30) days of your first Registration. In the event that you terminate such initial purchase of the Service within the thirty (30) days of your first Registration, Tendium will refund you the Subscription Fee paid in respect of such terminated Subscription Plan, in the same currency as Tendium were originally paid. Tendium is not liable to you for any currency exchange losses when refunding you in this way. The refund is applicable only to the initial purchase of the Service by you and does not apply to any additional purchases, upgrades, modification or renewal of the Service. After the thirty (30) days of your first Registration, the Subscription Fees are non-refundable and non-cancellable. 11.2 The monthly Subscription Plan does not come with a refund policy. The Subscription Fees corresponding to the monthly Subscription Plan are non-refundable.
CHANGES TO YOUR SUBSCRIPTION PLAN
12.1 You may at any time during your Subscription Term choose to upgrade or downgrade your Subscription Plan directly through the Service. A downgrade will come into effect at the time of the next renewal date of your Subscription Plan provided that your request is made before the renewal date (see Section 17.1). 12.2 Upon upgrade(s) of your Subscription Plan, including adding User(s), during the Subscription Term, you will be billed directly for the applicable increased amount of Subscription Fee, at Tendium’s then-current rates (unless indicated otherwise in applicable Order Form) prorated for the remainder of the then-current Subscription Term.
WARRANTIES AND DISCLAIMERS
14.1 Tendium warrants that during each Subscription Term the Service will perform materially in accordance with the Service Description and that Tendium will not materially decrease the overall functionality or security of the Service. 14.2 Except as expressly provided herein, Tendium makes no warranty of any kind whether express, implied statutory or otherwise and you hereby, to the maximum extent permitted by applicable law, disclaims all implied warranties such as implied warranties for fitness for a particular purpose, merchantability, non-infringement, and the Service being free from errors and bugs. 14.3 Notwithstanding the above, any “beta versions” of the Service, or similar are provided “as is” and without warranty of any kind and Tendium disclaims all liability and indemnification obligations for any harm, damages or other liability caused by any third party hosting provider.
15.1 Tendium is, with the limitations set out below, only liable towards you for damages caused by Tendium’s negligence.
15.2 Tendium is not liable for damages caused by modifications or changes to the Service made by Tendium, at its sole discretion, or according to your instructions, or performed by anyone other than Tendium (including but not limited to changes made by you or on your behalf). 15.3 Tendium is not under any circumstances liable for loss of profit, revenue, savings, use, or goodwill, loss or damage due to operational power or network interruptions, loss of or damage to data, your potential liability towards a third party, or any other indirect or consequential damages of any kind, without prejudice to Section 9.3 above. 15.4 Tendiumâ€™s total and aggregate liability under the Agreement is, for each calendar year and regardless of the number of damages, without prejudice to Section 9.3 above, limited to the accrued amount of the fees paid by you during the twelve (12) months period prior to the time when the damage(s) occurred. If you use the Service under a trial or otherwise free subscription, Tendiums aggregate liability, regardless of the number of damages, is limited to EUR one hundred (100). Tendiumâ€™s liability for Third Party Applications will never exceed such amount as Tendium is entitled to reclaim from the provider(s) of such Third-Party Application. 15.5 Tendium is not liable for damages unless you notify Tendium in writing thereof no later than ninety (90) days after you noticed or should have noticed the actual damage or loss, and in no situation liable if notified later than six (6) months from when the damage occurred.
FORCE MAJEURE Each Party shall be relieved from liability for damages for a failure to perform any obligation under this Agreement to the extent that the due performance is prevented by reasons of any circumstance beyond the control of the Party and of such kind that the Party in question could not reasonably be expected to have anticipated those circumstances, such as earthquakes, floods, storms, natural disasters, labour disputes, strike, lockout, blockage, loss of communication or electricity, mobilisation or military call-up by larger scope, epidemic, quarantine, civil commotion, fire, sabotage, terrorist act, riot, governmental action, war, nuclear fall-out, and/or government regulations, or any of the aforementioned scenarios affecting a subcontractor. When such an event occurs, the Party in question shall immediately notify the other Party of the relieving circumstance. As soon as the event stops/is over, the obligation under this Agreement shall be fulfilled in the agreed manner.
TERM AND TERMINATION
17.1 The Service is provided on a subscription basis according to your Subscription Plan. Unless otherwise specifically agreed in applicable Order Form, your Subscription Plan will automatically renew on the day after the final day of your then applicable Subscription Term (Effective Date) at the then-current Subscription Plan. Hence, on the day of your automatic renewal of your Subscription Plan, your subscription renews at the same Subscription Plan as your Subscription Plan that was active before the automatic renewal in question, with the same Subscription Term as your previously active Subscription Term. 17.2 Unless otherwise specifically agreed, either Party may terminate the Agreement, by written notice to the other Party or directly in the Platform, with effect from the date when your Subscription Plan would otherwise have been renewed, subject to such termination being made no less than on the final day of your then-current Subscription Term. 17.3 Without prejudice to the refund policy as described in Section 11.1 above, you shall not be entitled to recover any excess amount of payments made in advance. 17.4 Either Party is entitled to terminate the Agreement with immediate effect where the other Party has committed a material breach of the Agreement and does not fully rectify such breach within thirty (30) days of the other Party giving a written notice thereof or where the other Party is declared to be insolvent, is subject of an application or order for bankruptcy or company reorganisation, suspends payments or otherwise can be presumed to be insolvent. 17.5 Tendium is entitled to terminate the Agreement with immediate effect: (i)
where a third-party supplier or subcontractor terminates an agreement with Tendium and as a consequence it is not commercially reasonable for Tendium to continue providing the Service under the Agreement;
where Tendium chooses to discontinue the Service;
(iii) upon a breach of your obligation under Section 4.3, 4.4, 4.5, 4.6 and/or 4.7 above; or (iv) in accordance with Section 7.5 above.
CONSEQUENCES OF TERMINATION
18.1 Upon termination of the Agreement you shall immediately cease your use of the Service. 18.2 The rights and obligations of the Parties set forth in this Section 18 and Section 7, 9, 14, 15, 21 and 22, and any right or obligation of the Parties in this Agreement, which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
PILOT AGREEMENT Where there is a Pilot Agreement in effect between the Parties, the terms and conditions in such Pilot Agreement shall take precedence over the terms and conditions in this Agreement regarding all matters regulated in such Pilot Agreement during the validity of such Pilot Agreement. Other terms and conditions in this Agreement, not regulated in Pilot Agreement, shall apply regarding your use of the Service as of the Effective Date.
CHANGES AND AMENDMENTS TO THIS AGREEMENT Tendium is entitled to make changes and amendments to the Agreement and to change the price of the Service. Tendium will notify you as appropriate under the circumstances of the changes and/or amendments. Changes in applicable prices will have effect from the next renewal date of your Subscription Plan and will be notified by Tendium with reasonable notice. Your continued use of the Service after the change(s) and/or amendment(s) has been implemented will constitute your acceptance of the change(s) and/or amendment(s).
21.1 Tendium is entitled to engage subcontractors for the performance of its obligations under this Agreement. Tendium is responsible for the subcontractor’s work as for its own. 21.2 The contents of this Agreement shall supersede all previous written or oral commitments and undertakings. 21.3 The Agreement may not be assigned to a third party without the other Party’s written approval. Tendium is however entitled to assign the Agreement to a third party in connection with a transfer of Tendium’s business or a part thereof and to companies within the same group as Tendium. 21.4 You undertake to save a copy of these Terms as well as any other documentation related to the Agreement. Tendium does not undertake to provide additional copies unless otherwise agreed.
GOVERNING LAW AND DISPUTES
22.1 This Agreement shall be construed in accordance with and be governed by the laws of Sweden, with the exclusion of its conflict of law rules. 22.2 Any dispute, controversy, or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration by the SCC. 22.3 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount of dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. 22.4 The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English. 22.5 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.
_________________________ Last update: July 9, 2020
Contact information Tendium AB, reg.no. 559169-6843 Mäster Samuelsgatan 42, 111 57 Stockholm, Sweden email@example.com +46 8-124 421 00