These General Terms between Oplane AB and Customer and Affiliates (as defined below) are effective upon the last date of execution by the parties (“Effective Date”).
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the parties agree, and intend to be legally bound by the terms and conditions set forth herein.
1. Definitions
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Agreement” means the Order Form, the General Terms, the data processor agreement and any exhibits or attachments attached thereto.
“Authorised Users” means those employees, agents and independent contractors of the Customer and Affiliates, who are authorised by the Customer to use the Services.
“Commissioned Materials” has the meaning ascribed to it in Section 5.2.
“Confidential Information” means information that one party or its Affiliate discloses to the other party under or in connection with the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer's Confidential Information and Oplane's Confidential Information includes any source code and technical or performance information about the Services.
“Control” means control of greater than 50% of the voting rights or equity interests of an entity.
“Customer Data” means the data inputted by the Customer, Authorised Users, or Oplane on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
“Delegates” means Recipient's and its Affiliates' respective employees, agents, subcontractors, and professional advisors.
“Effective Date” means the date of the last party's signature of these General Terms.
“Fees” means the fees for the Services ordered by Customer in the Order Form, plus any applicable Taxes.
“Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
“Order Form” means the order form issued by Oplane under the Agreement and executed by Customer specifying the Services.
“Professional Services” means the professional services provided by Oplane, or any of its sub-contractors, to the Customer as provided in the Order Form.
“Services” has the meaning described in the Order Form. Unless otherwise indicated below, “Services” includes Professional Services.
“Taxes” means any duties, customs fees, or taxes (other than taxes on Oplane's net income), including indirect taxes such as goods and services tax and value added tax, associated with the purchase of the Services, and any related penalties or interest.
“Term” means the term stated in the Order Form.
2. Use of Services
2.1 Oplane grants to the Customer a non-exclusive, non-transferable right and licence to permit the Authorised Users to use the Services specified in the Order Form during the Term in accordance with the Agreement.
2.2 The Customer grants to Oplane a non-exclusive license to use and modify Customer Data for the sole purpose of providing the Services to the Customer and comply with its obligations under this Agreement. In addition, Oplane is entitled to store, modify, use and publicise anonymized and aggregated data relating to the Customer's use of the Services for the purposes of developing or improving the Services, develop new services or creating reports.
3. Customer Obligations
3.1 Customer is responsible for any consents required to permit (a) Customer's use and receipt of the Services and (b) Customer's provision of data (including Customer Data) under the Agreement, and Oplane's accessing, storing, and processing of such data in accordance with the Agreement.
3.2 Customer will (a) provide Oplane with reasonable necessary co-operation as set out in this Agreement; (b) comply with all applicable laws and regulations with respect to its activities under this Agreement; (c) ensure that its network and systems comply with the relevant specifications provided by Oplane from time to time; and (d) use commercially reasonable efforts to prevent and terminate any unauthorised access to or use of the Services.
3.3 Customer will not, and will not allow Authorised Users to, (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sell, resell, sublicense, transfer, or distribute the Services; (c) access or use the Services in a manner intended to avoid incurring Fees; (d) store, access, publish, disseminate, distribute, or transmit via the Services any material which is illegal or causes damage to the Service; or (e) obtain or attempt to obtain, or assist third parties in obtaining or attempting to obtain, access to the Services other than as provided in this Agreement.
4. Charges and Payment
4.1 Oplane will invoice Customer for the Fees. Customer will pay Oplane all invoiced amounts within 30 days from the date of invoice. All payments are due in the currency described in the invoice.
4.2 Oplane may adjust the Fees for the Services annually on or after each anniversary of the Effective Date.
4.3 Customer is responsible for any Taxes and will pay Oplane for the Services without any reduction for Taxes.
4.4 If Customer's payment is overdue, then Oplane may charge interest on overdue amounts in accordance with applicable law and suspend the Services until paid in full.
4.5 If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. Any terms on a purchase order are void.
5. Intellectual Property
5.1 Except as expressly described in the Agreement, the Agreement does not grant either party any rights, implied or otherwise, to the other's content or intellectual property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Oplane retains all Intellectual Property Rights in the Services.
5.2 All Intellectual Property Rights developed, written, or created by Oplane specifically for the Customer as set out in the Order Form (“Commissioned Materials”), will vest in and be the exclusive property of the Customer upon creation subject to payment of the Fees. Oplane hereby irrevocably assigns, transfers, and conveys to the Customer all right, title, and interest in and to the Commissioned Materials, including the right to transfer and change such Commissioned Materials.
5.3 If Customer provides feedback regarding the Services, then Oplane and its Affiliates may use that feedback without restriction and without obligation to Customer.
6. Confidentiality
6.1 Each party undertakes not to disclose Confidential Information which it has received from the other party to any third party without the other party's prior consent.
6.2 Confidential Information does not include information which:
- is part of the public domain, or which comes into the public domain through no breach of this Agreement,
- at the time of disclosure was already in the possession of the receiving party, as evidenced by the receiving party,
- the other party is obliged to disclose according to applicable laws and regulations or decisions by a court of law or public authority, or
- the other party received from a third party who in turn was not bound by a confidentiality obligation in relation to the information.
6.3 Oplane is entitled to share Confidential Information with its subcontractors, external advisors and Affiliates, provided that such parties are bound by confidentiality obligations equivalent to the obligations under this Agreement.
6.4 The confidentiality obligations apply during the Term and for a period of three years thereafter.
6.5 Notwithstanding the foregoing, Oplane may identify Customer as a Customer in its promotional materials.
7. Data Protection
To the extent Oplane is processing personal data on behalf of the Customer and/or any Affiliate under this Agreement, what is set out in the data processor agreement in Appendix 2 shall apply.
7.1 Oplane shall delete Customer Data, Customer Confidential Information, and any data relating to Customer in any way (including derived data and vectorized and tokenized content) upon request and confirm such deletion with Customer.
8. Representations and Warranties
8.1 Each party represents and warrants that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable. Oplane warrants that it will use reasonable care and skill in complying with its obligations under the Agreement.
8.2 Except for the Professional Services, Oplane warrants to Customer that (a) the Services will operate in substantial conformity with the Order Form, (b) Oplane will not materially decrease the functionality or overall security of the Services under the Order Form, and (c) Oplane will use reasonable efforts designed to ensure that the Services, when and as provided by Oplane, are free of any viruses, malware, or similar malicious code.
8.3 Oplane warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards, and that the Professional Services will materially conform to the requirements set out in the Order Form.
8.4 No conditions, warranties or other terms apply to the provision of the Services unless expressly described in the Agreement. No implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description). Services will be provided “as is” and Oplane does not warrant that operation of the Services will be error-free or uninterrupted.
8.5 Oplane does not warrant that threat modelling or other security analysis will identify all vulnerabilities, threats, or weaknesses in the Customer's systems, nor that the Customer's systems are entirely secure from unauthorized access or attack.
9. Indemnification
9.1 Oplane will indemnify Customer and its Affiliates (as the case may be) against any incurred costs, damages, liabilities, losses or expenses, whether direct or indirect, arising out of or relating to any legal actions, claims or demands brought against the Customer or any Affiliate by a third party based on the allegation that the Customer's or an Affiliate's use of the Services or Commissioned Material constitutes an infringement of the Intellectual Property Rights of a third party.
9.2 Customer will indemnify Oplane and its Affiliates providing the Services against any incurred costs, damages, liabilities, losses or expenses, whether direct or indirect, arising out of or relating to any legal actions, claims or demands brought against the Customer or any Affiliate arising from (a) any Customer Data or (b) Customer's or an Authorized User's use of the Services in breach of the Agreement or applicable laws.
9.3 Sections 9.1 and 9.2 will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement or (b) a combination of the Services with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.
9.4 Any indemnified party must promptly notify the indemnifying party in writing of any claims covered by this Section 9 and cooperate reasonably with the indemnifying party to resolve the claim. The indemnity obligations herein are subject to indemnified party providing: (a) sufficient notice of the infringement claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the infringement claim, and (c) all reasonably requested cooperation.
9.5 If Oplane reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Oplane may, at its sole option and expense, (a) procure for the Customer the right to continue using the Services; (b) replace or modify the Services to make it non-infringing provided its performance is not adversely and materially affected; or (c) if neither of the foregoing is possible on reasonable commercial terms, terminate the Agreement, in which case the Supplier shall refund to the Customer any unused prepaid Fees that Customer paid to Oplane for use of the terminated Services.
9.6 This Section 9 states the parties' sole and exclusive remedy under the Agreement for any third-party claims of Intellectual Property Rights infringement.
10. Liability
10.1 Subject to Section 10.2, neither party will have any liability arising out of or relating to the Agreement for any (a) loss of profits; (b) loss of anticipated savings; (c) loss of business opportunity; (d) loss of reputation or goodwill; (e) loss of data; or (f) indirect or consequential losses.
10.2 Each party's total aggregate liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid under the Agreement during the 12-month period before the first event giving rise to liability.
10.3 Nothing in the Agreement excludes or limits either party's liability for (a) its fraud or fraudulent misrepresentation; (b) its obligations under Section 9; (c) its infringement of the other party's Intellectual Property Rights; (d) its payment obligations under the Agreement; or (e) matters for which liability cannot be excluded or limited under applicable law.
11. Term and Termination
11.1 The Agreement is effective from the Effective Date until it is terminated in accordance with its terms.
11.2 Subject to any financial commitments in an Order Form or addendum to the Agreement, Customer may terminate the Agreement or an Order Form for any reason with 30 days' prior written notice to Oplane.
11.3 Either party may terminate the Agreement if the other party is in material breach and fails to cure that breach within 30 days after receipt of written notice.
11.4 Either party may terminate the Agreement immediately if the other party (i) is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice, (ii) enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, or is dissolved or otherwise ceases its business operations, (iii) becomes subject to insolvency or bankruptcy proceedings and such proceedings are not dismissed within 90 days, or (iv) is the subject of an event analogous to the events listed in (ii) or (iii) above in any jurisdiction.
11.5 If the Agreement terminates, then all rights and access to the Services will terminate (including access to Customer Data, if applicable).
12. Miscellaneous
12.1 Under the Agreement, any notices must be sent to the relevant email address in the Order Form. Notice will be treated as received when the email is sent. Any changes to an email address in the Order Form shall be notified without undue delay.
12.2 Neither party may assign the Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of the Agreement, (b) the assigning party has notified the other party of the assignment, and (c) if Customer is the assigning party, the assignee is established in the same country as Customer.
12.3 Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including, but not limited to, natural disasters, cyber attacks, terrorism, riots, or war.
12.4 Oplane may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
12.5 The Agreement does not create any agency, partnership, or joint venture between the parties.
12.6 If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
12.7 Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.
12.8 The Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of the Agreement. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in the Agreement.
12.9 If there is a conflict among the documents that make up the Agreement, then the documents will control in the following order (of decreasing precedence): the data processing agreement, the applicable Order Form, and the General Terms.
13. Governing Law
13.1 The Agreement shall be governed by, and construed in accordance with, the substantive laws of Sweden.
13.2 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 in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
13.3 The arbitral tribunal shall be composed of three (3) arbitrators. The seat of arbitration shall be Stockholm, Sweden, and the language to be used in the arbitral proceedings shall be English.
13.4 If there is more than one dispute, controversy or claim arising out of or in connection with this Agreement, and/or any other document made pursuant thereto, such disputes, controversies or claims, shall, unless deemed inappropriate by the arbitral tribunal in its sole discretion, be settled within the same arbitration proceedings, or, at least, by the same arbitrators.
13.5 The information concerning any dispute, controversy or claim arising out of or in connection with this Agreement, including any arbitral award, shall remain confidential, save that a party may disclose such information if necessary to exercise its rights under this Agreement, any arbitral award or due to regulatory requirements.