CUSTELLENCE - General Terms and Conditions

Version 1 – valid as of 3rd of October 2016

Definitions

In the contractual arrangements between Custellence and its Customers and for the provision of Services under this agreement, the following expressions shall be defined as set forth below.

“Custellence”, means the legal entity of the Custellence company, its daughter companies, its organization and any part thereof as present from time to time. “Customer”, means the legal entity entering into a Contract with Custellence for the provision of the Services.

“Contract”, means any and all contractual arrangements between Custellence and a Customer, including these General Terms and Conditions, including price lists and other appendixes.

“General Terms and Conditions”, means this document, being the General Terms and Conditions for the provision of the Services.

“Service”, means any and all services provided by Custellence on these General Terms and Conditions.

“User”, means the individual user of the Services, entitled to access the Services by Contract between Custellence and the Customer.

1. General provisions

1.1 Custellence concludes Contracts with Customers exclusively based on these General Terms and Conditions, which form a key and integral part of any and all offers and Contracts. Any deviations to conditions of Customers only apply if they have been separately agreed in writing.

1.2 By using the Service the Customer agrees to and enters into a Contract between Custellence and the Customer, including these General Terms and Conditions and any other requirements relating to the Service.

1.3 Once these General Terms and Conditions become part of a Contract between Custellence and the Customer, they shall continue to apply for all future Contracts with the Customer.

1.4 Custellence reserves the right to modify the General Terms and Conditions from time to time. By entering into a Contract with Custellence the Customer agrees that the General Terms and Conditions applicable from time to time, as held available by Custellence on www.custellence.com, shall apply between the Customer and Custellence.

2. Performance description

2.1 In accordance with these General Terms and Conditions, Custellence supplies a web-based software solution for Customer use, at charge, to create and connect the customer journey map to the organization and lead customer-centric change management in teams and organizations. Custellence Customers are granted the right, on a non-transferable, personal and non-exclusive basis, to use the Service supplied under this Contract, combined with storage and database use in line with the General Terms and Conditions of Custellence. Unless otherwise are explicitly agreed in writing between Custellence and the Customer, each User is granted limited storage up to a maximum of one gigabyte per User account.

2.2 The right to control Customer data stored within the scope of use of the Service and on servers used by Custellence remains with the Customer and such data is protected against third party access. Custellence reserves the right to access this data as required for the performance of the Services by Custellence. The current database stored online by the Customer is backed up regularly by mirroring the database. During the valid contract term, the Customer has the right to export this data exclusively on a personal basis.

2.3 The software usage provided by Custellence solely represents a server solution. The scope of any commitments made concerning guaranteed availability thus shall always be limited to the availability of the Service of Custellence.

3. Registration and use

3.1 The Customer undertakes to provide Custellence with complete and accurate information regarding its Users. Registration and use of the Services constitutes full and unconditional confirmation of agreement with the General Terms and Conditions.

3.2 If the Customer provides inaccurate data during registration, usage consent is deemed not have been given. The activation of registered Users does not constitute acceptance by Custellence of any usage contrary to any of the provisions of this part of the Contract.

3.3 Customers must handle access authorization data, particularly user names and passwords, confidentially and may not under any circumstances pass the same on to third parties. If any access data is misused by a User, the Customer shall be liable for any damages thereby caused.

3.4 The Customer shall bear the costs of any Internet provider and telecommunication charges or other fees that may be incurred during use of the Services.

3.5 The entitlement to the use of the Custellence Service and its functions exists only within the scope of the Contract and current technical standard.

3.6 Unless otherwise are explicitly agreed in writing between Custellence and the Customer, the Customer has no entitlement to uninterrupted accessibility of the Service provided by Custellence. Custellence therefore reserves the right to temporarily limit the usage scope of the Service, if required in view of maintenance work, capacity limits, the security or integrity of the server or the implementation of technical measures. For technical reasons in particular, it may temporarily be wholly or partially impossible to access the Services. In such cases, Custellence will strive to uphold the interests of all Customers, particularly by providing advance notice in the event of temporary server shutdown.

3.7 The Customer is aware of and accepts that all output from the Services is dependent on and a result of the data provided and entered by the Customer into the Services. Any and all responsibility for inaccuracy in the output from the Services which cannot directly be attributable to other causes than the accuracy or quality of the Customer input shall lie upon the Customer.

3.8 Unless otherwise are explicitly agreed in writing between Custellence and the Customer, Custellence has the right to mention the fact that the Customer is a customer of Custellence in its marketing.

4. Software and network licenses

4.1 When purchasing a Custellence Service, the following license agreement is concluded.

4.2 The license agreement entitles the Customer to the Services for the valid term of the Contract concluded by the Customer and Custellence. The usage right is non-transferable and non-exclusive. The use of the subject of the license is limited to the Customer and its Users. No transfer to third parties, resale and further assignment to third parties or duplication is allowed and the Customer acknowledge the fact that each account is personal for each User.

4.3 The Customer is responsible for having the operating systems and sufficient Internet connection required to operate the Custellence Service. The Customer is also responsible for having the browser solutions recommended from time to time by Custellence.

4.4 All Services of Custellence, particularly concerning the use of the Service provided as well as database use are protected by copyright, held by Custellence. Reverse engineering, copying of code or Customer interface or the like of Custellence Services, solutions and methods is strictly forbidden.

4.5 With the license agreement, the Customer purchases the right to use the Service within the scope of this agreement and at charge.

5. Contract conclusion, payment and due dates

5.1 Information in the price lists, on Internet sites and other indications by Custellence are always non-binding. Custellence explicitly reserves the right to make changes to the information contained therein at any time. Orders sent by Customers are only considered offers to conclude a Contract or to change a current Contract.

5.2 By supplying data transferred as part of the registration process, the Customer is deemed to make an offer to conclude a usage Contract and expressly consents to the immediate execution of the corresponding Service by Custellence.

5.3 The offer of the Customer will be accepted by Custellence by activating online access for the use of the Service.

5.4 The fee is payable plus the respectively valid statutory sales tax in accordance with the respectively price agreed between Custellence and the Customer. Payment shall be made against invoice from Custellence.

5.5 Payments are only deemed to have been made when the sum is confirmed in the account of Custellence. If the payment deadline is exceeded, Custellence shall charge the statutory interest on arrears.

5.6 Any set-off of a counterclaim exercised by the Customer against claims of Custellence is excluded, unless this counterclaim is established by law or has been acknowledged in writing by Custellence.

6. Prices and changes

6.1 Prices and price changes are agreed between Custellence and the Customer. Changes to the General Terms and Conditions are announced from time to time online and details of the timing are announced when any change is made. The notification of changes to the General Terms and Conditions is made via indication on the Custellence web site specifying the date of the change.

6.2 Only the prices specified by Custellence in the order confirmation shall apply. Orders accepted by Custellence by immediate delivery and without advance order confirmation shall be processed based on the prices as of the order date. Unless otherwise specified, all specified prices are net and excluding statutory sales tax.

7. Fees and training

7.1 Unless otherwise are explicitly agreed in writing between Custellence and the Customer, the license fee is charged as a monthly fee, charged on a monthly basis in advance when purchasing the Service.

7.2 The fee includes the right to access the Service and to updates to the Service. The following are notably not included in the fee and shall therefore not be a requirement for Custellence to provide: e-mail support for questions related to the network, to the Customers operating system, office programs or third party programs, the installation of new operating systems or new office programs, setting-up and updating macros or other scripts, network changes, setting up printers nor security policies.

7.3 Custellence shall handle program maintenance at no extra charge. Such program maintenance includes adaptations required based on changes in legislation. The maintenance does not include any information or consultation on Custellence Service. For the latter, i.e. for any content excluded from the scope of the respective fee, support will be provided, chargeable on an hourly basis in accordance with the respectively current price lists.

7.4 Information and consultation on products for which the Services are not included in the fee are not provided on an obligatory basis. However, if Custellence provides such information, this will be chargeable if deemed so by Custellence.

7.5 Instruction on using the Service, training courses and workshops shall be offered and charged separately. The respectively valid hourly or daily rate shall apply in accordance with the current price lists. For on-site instruction, training courses and workshops, travel costs, time and mileage shall be charged.

8. Updates

8.1 The Service will be kept current by Custellence as far as possible by installing updates. Custellence has the right to implement such updates on a short-term basis and without prior notification.

9. Communication

9.1 Notifications on changes and disruptions to the Services from Custellence to Customers shall be made by e-mail or via the Custellence website. When concluding a Contract, the Customer shall specify at least one contact person with an e-mail address, to whom messages from Custellence should be sent. The Customer undertakes to notify Custellence immediately of any changes in the contact person or e-mail address and inform it immediately of any disruptions occurring in the performance of Services under this Contract.

9.2 The Customer undertakes to constantly safeguard the access data provided during the performance of Custellence Services, such as user names, passwords, URLs etc, so that it cannot be viewed by any third parties.

10. Duration and termination

10.1 Contracts for the Custellence Service are concluded for an indefinite duration.

10.2 The Customer shall be entitled to terminate the Contract in writing with one-month notice period.

10.3 Custellence is entitled to terminate license or the Contract in writing with a one-month notice period.

10.4 In the event that the Customer defaults on the payment of license fees or other charges despite reminder for longer than one week, Custellence is entitled to bar online access pending payment of the sum owing, or terminate the license agreement with immediate effect.

10.5 The right of the Customer to use the Services shall expire immediately, even without notice of termination, if the Customer breaches any provision of this Contract.

10.6 Upon the ending of the Contract, regardless of reason, Custellence is entitled to delete data of the Customer stored on servers or other backup media of Custellence at the earliest one month after the ending of the Contract. The timely export of data during the valid contract term is the sole responsibility of the Customer. The Customer shall not be entitled to exercise any claims against Custellence for the deletion of data from its servers, regardless of the type and extent involved.

10.7 For test accesses, Custellence is entitled to delete the data at the end of the test period without notification.

11. Exemption from liability

11.1 The Customer shall be liable for any use of the Custellence Service contrary to these General Terms and Conditions and for any other abusive or illegal use of the same, including user names and passwords. If the Customer uses the Service, as well as user names and passwords, in an inadmissible manner, the Customer undertakes to indemnify Custellence and hold Custellence harmless against any and all resulting claims for damages to the full extent. In addition, the Customer also undertakes to indemnify Custellence in full, where claims are exercised by a third party against Custellence arising from the use.

12. Warranty and liability

12.1 Custellence warrants and shall be liable – unless such warranty and liability have been excluded in a legally permissible manner from the current clause – within the scope of the statutory provisions.

12.2 Unless explicitly agreed in writing between Custellence and the Customer, Custellence makes no guarantee that Service functions will meet the requirements of Customer.

12.3 Unless explicitly agreed in writing between Custellence and the Customer, Custellence does not guarantee and shall not be liable for ensuring error-free and non-delayed or uninterrupted use of the Service and database, including the Internet connection and any associated loss of data.

12.4 Custellence disclaims responsibility for any transmission or transfer errors, particularly those caused by improper operation by the Customer, unsuitable display software or hardware or other data carriers, databases, software, Internet connection etc. used by the Customer. Custellence also disclaims all warranty and liability for the suitability of the Service for the targeted purpose of the Customer and for any and all data losses.

12.5 If the Customer is entitled to exercise statutory warranty claims, Custellence is initially entitled to remedy the shortcoming.

12.6 Custellence shall only be liable for damages claims involving intent and gross negligence. Regardless of circumstances, liability for consequential and pecuniary damages, particularly due to delay, impossibility of performance, loss of profit, anticipated savings that failed to materialize, damages arising from third party claims against the Customer, indirect damages and damage to recorded data, or the like, shall be excluded to the legally permissible extent. Custellence also explicitly disclaims liability for any damages resulting from malfunctions of transmission paths. Also excluded are warranty and liability for any failure of the Custellence Service server.

12.7 Custellence is exempt from its service obligations in the event of Force Majeure. Cases of Force Majeure shall include, but is not limited to, all events which Custellence could not with any reasonable means prevent, all unforeseen events and all events for which no party is reasonably answerable to the consequences in terms of the performance of the Contract.

12.8 Statutory provisions apply in the event of complaints by the Customer. If subject to a time limit, compensation claims must be asserted no later than six months from knowledge of the damage.

12.9 The Customer shall be liable, particularly for any unauthorized transfer of data transferred to the Customer by Custellence to any third parties and for any improper use of such data.

12.10 Where Custellence is deemed liable, the scope of any damage claim is limited to a maximum of twice the yearly fee from the Customer. Compensation for indirect and consequential damages, including loss of profit, is excluded.

13. Right of ownership

13.1 The Custellence Service and every aspect of its selection and configuration are protected by intellectual property rights. Save as explicitly defined in these General Terms and Conditions, namely the contractually compliant use of the Service during the valid term of the Contract in exchange for payment of a monthly license fee, Custellence shall not provide any additional expressed or implied rights to the use of the Service. All rights, legal titles and claims linked to the Service, in all languages, formats and media worldwide are and remain the sole property of Custellence. No provision of these General Terms and Conditions may be construed as indicating that a license or right by implication or in any other manner and in accordance with protective or copyright laws is transferred to the Customer or any third party.

13.2 The trademarks found in and in connection to the Custellence Service and associated Internet sites are the property of Custellence and may not be used by the Customer without the prior consent of Custellence. Custellence and the Custellence logo are trademarks of Custellence.

14. Data protection

14.1 When concluding a Contract, the Customer agrees that all personal data transferred by the Customer to Custellence and required to arrange and implement the Contract, may be electronically stored and processed by Custellence in compliance with the provisions of relevant Data Protection Acts and for the purpose of providing the Service. The storage and processing of data is particularly intended to facilitate provision of the Service ordered by the Customer. The data will not be transferred to third parties, except where necessary for the performance of the Contract.

14.2 The Customer agrees that Customer and User data may be stored and used by Custellence to provide information on offers. In particular, the Customer explicitly consents to the sending of electronic mail as part of direct marketing for similar Custellence products. The Customer acknowledges that the Customer is thus entitled to withhold agreement to the use of electronic contact information upon collection, or immediately after an order is completed, and additionally in future for any transfer by sending an e-mail or written notification by mail to Custellence.

14.3 Data entered by the Customer is the private property of the Customer. Custellence undertakes to not transfer such data to any third party.

15. Applicable law and place of jurisdiction

15.1 By entering into a Contract the Customer and Custellence agree that for all contractual aspects and for all claims arising out of the legally effective existence or absence of a Contract – to the extent permitted by law – Swedish law shall exclusively apply.

15.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The language of the proceedings shall be Swedish.