TERMS OF SERVICE
VERSION:3/2022
AREA OF APPLICATION: these terms of service (the “Agreement”) govern the Customer’s Use
of the Service/Solution (as defined herein).
Upon submitting a subscription order or by accepting an
offer from Sandvik DPA, or an Approved Source, you accept the terms and
conditions of this Agreement on behalf of the Customer, you represent and
warrant that: (i) you have full legal authority to
bind the Customer to this Agreement; (ii) you have read and understand this
Agreement; (iii) you agree, on behalf of the Customer, to this Agreement; and
(iv) you agree, on behalf of the Customer, to ensure that all individual users
of the Service will comply with applicable sections of this Agreement as well
as the Acceptable Use Policy. If you do not have the legal authority to bind
the Customer, do not click to accept, or sign a main agreement or similar
referring to this Agreement or Use the Software.
By clicking accept, signing a main agreement or similar
referring to this Agreement, or Using the Software, the Customer agrees to be
bound by the Agreement and the Agreement enters into force (the “Effective Date”).
1.
DEFINITIONS
“Acceptable Use Policy”
means the acceptable use policy for the Service, as available on the Homepage
or through the Service as updated by Sandvik DPA from time to time.
“Approved Source” means a reseller, distributor or other
entity authorized by Sandvik DPA to sell the Service.
“CRIBWISE Hardware” means the CRIBWISE
storage devices set out in the License Details and/or
one or more purchase orders (if applicable) and provided by Sandvik DPA, or an
Approved Source, to Customer upon which the CRIBWISE Software may be installed and run.
“CRIBWISE Software” means the CRIBWISE software
consisting of, inter alia, the
shop-floor interface and administration portal made available to the Customer
under this Agreement, as further specified in the Documentation.
“Customer” means the
legal entity subscribing to the Service under this Agreement.
“Customer Content” refers
to any Customer’s user data (such as user IDs, password etc),
tool and machine data, information about vendors, manufacturers, customers,
prices and all other data or information uploaded by the Customer into the
Service.
“Derived Data” means
anonymized and aggregated data (such as metadata, generated data
and by-product data) obtained and collected by Sandvik DPA in connection with
Customer’s Use of the Service/Solution.
“Documentation” means
the most recent written or online (i) user manuals,
(ii) e-learning modules or other training materials, (iii) technical
requirements on the Customer’s machines or the Customer’s IT environment (e.g. infrastructure and network requirements), or (iv) other
documentation applicable to the Service which Sandvik DPA may make available
through the Service, its Approved Sources and/or on the Homepage from time to
time.
“Homepage” means
https://CRIBWISE.com.
“License Details” means
the allowed level of usage and other details of the license as identified in
the Customer’s subscription order; including term of
subscription, type and quantity of CRIBWISE Software, CRIBWISE
Hardware (if applicable) and other devices, and from
time to time applicable payment terms and price list.
“Manufacturer Content” means tool data, machine data
and any other know-how or information made available by Sandvik DPA to the
Customer via the Service.
“Sandvik DPA”
means the division Design & Planning Automation of Sandvik Machining
Solutions AB, reg.no. 556692-0053, a limited liability company incorporated
under the laws of Sweden having its registered office at SE-811 81 Sandviken, Sweden.
“Service” means the
complete software offering made available by Sandvik DPA, including the CribWise Software (in any applicable version), Documentation,
Manufacturer Content, as well as other functionality and associated services
(including infrastructure and support services), as further and exhaustively
described in the Documentation.
“Solution” means the
Service and any related CRIBWISE Hardware
(if applicable).
“Territory” means the
country in which the Customer has its legal seat at the time of entering into
of this Agreement.
“Third Party Content” means
software, software services, materials or content provided by third parties as
part of or otherwise used together with the Service as specified in Section 2.5.
“Use” or “Using” means to download, install,
activate, access or otherwise use the Solution or any
part thereof
2.
SUBSCRIPTION LICENSE
2.1.
Upon submitting a subscription
order or by accepting an offer from Sandvik DPA, or an Approved Source, (including
acceptance of this Agreement), and full payment of the applicable subscription
fee for the initial term, the Customer will be provided with access to the
Service in accordance with the terms of this Agreement.
2.2. Where applicable, the CRIBWISE Software
will be delivered partially pre-installed on a CRIBWISE Hardware purchased by the Customer and connect to a web
application through which further functionality of the CRIBWISE Software is delivered.
2.3. Subject to payment of the applicable fees and compliance with this
Agreement, and during the Customer’s subscription period set out in the License
Details, Sandvik DPA grants to Customer a limited, non-exclusive,
non-sub-licensable, non-transferable, revocable license to Use the Service
solely for Customer’s internal operations in the Territory and in accordance
with the License Details, the Acceptable Use Policy
and the Documentation. For the avoidance of doubt, Use of Third
Party Content is not included in this license (see Section 2.5 below).
2.4. The License Details will identify the term and duration of
Customer’s subscription period and the CRIBWISE Hardware
on which the Service may be Used (if applicable).
2.5. The Service may contain certain Third Party Content, which is provided and licensed solely
under the terms and conditions provided by its respective suppliers. Third
Party Content provided or made accessible together with the Service are further
described in the Documentation, including links to relevant terms and
conditions. Sandvik DPA assumes no liability whatsoever for Third Party
Content, or any errors in the Service (or any other liability whatsoever) that
may occur as a result of Third Party Content. Further,
the Customer may, if the Service supports such functionality, add additional Third Party Content not provided or made accessible together
with the Service. Sandvik Sandvik DPA does not
support or endorse the use of any Third Party Content
not listed in the Documentation.
2.6.
Sandvik DPA may offer the Service
to the Customer at no charge for a limited period e.g.
for trial use (“Free Trial”) as set out in the License Details. The Customer’s
use of a Free Trial is subject to any additional terms that Sandvik DPA may specify
and is only permitted during the term designated by Sandvik DPA in the License
Details (such term not to exceed a maximum period of 30 days unless otherwise
specified). Following the Free Trial period, the Customer’s access to, and
right to use, the Service will expire, and the Customer must submit an order
for a paid subscription to receive continued or renewed access to the Service.
3.
USE RESTRICTIONS
3.1. Customer
shall not (and shall not allow any third party to) during the term of this
Agreement or at any time thereafter:
3.1.1. transfer,
sublicense, or assign the Customer’s rights under this Agreement to any other
person or entity, except for the employees, contractors, representatives and
officers of the Customer who have been designated by the Customer as users
pursuant to this Agreement and subject to the Acceptable Use Policy;
3.1.2. modify,
adapt or create derivative works of any part of the Solution or reverse
engineer, decompile, decrypt, disassemble or otherwise attempt to derive any
source code, underlying ideas, algorithms, libraries, file formats, data,
databases or programming interfaces for the Solution;
3.1.3. distribute,
publish, or otherwise make any Manufacturer Content, Documentation or other
part or functionality of the Solution available to third parties, whether as an
application service provider, or on a rental, service bureau, hosted service,
cloud service or other similar basis;
3.1.4. use the
Service on or for other devices or hardware than the CRIBWISE Hardware or such
other hardware explicitly identified and licensed as per the License Details,
including not using the Service in connection with secondhand or refurbished Sandvik DPA equipment or products, or on Sandvik DPA equipment or products not purchased
through Sandvik DPA or one of its Approved
Sources nor use the CRIBWISE Hardware (if applicable) with any other software
than the Service; or
3.1.5. remove,
modify, or conceal any product identification, copyright, proprietary,
intellectual property notices or other marks on or
within the Solution or Manufacturer Content.
4.
OWNERSHIP AND USE OF INTELLECTUAL PROPERTY
RIGHTS
4.1.
Sandvik DPA or its licensors retain
ownership of all intellectual property rights in and to the Solution, including
copies, improvements, enhancements, derivative works
and modifications thereof. Any intellectual property rights created by, or
arising as a result of, the Customer’s use of the
Solution shall vest with Sandvik DPA.
4.2.
The Customer’s rights to use the Solution
are limited to those expressly granted by this Agreement and any applicable
License Details. No other rights with respect to any part of the Service or any
related intellectual property rights are granted or implied.
5.
CUSTOMER’S USE OF THE SOLUTION
5.1. It is the Customer’s responsibility to ensure that the Solution
has been appropriately installed, and that a user account for the Service is
set-up, as per the instructions in the Documentation. Customer shall also
ensure that the Solution is properly tested prior to any
Use, as necessary to ensure safe and correct Use of the Solution.
5.2. In order for the Service to function
properly, any associated CRIBWISE Hardware needs to be connected to the
internet. The Customer is fully responsible for ensuring that the CRIBWISE Hardware can be equipped with an internet connection and
that all other technical requirements are fulfilled as described in the
Documentation, on the Homepage or in another agreement or document between the Customer
and Sandvik DPA, or an Approved Source.
5.3. The Customer must ensure that each CRIBWISE Hardware, or the administration portal of the CRIBWISE Software if it is installed on premise, using the Service
is connected to the internet, and can be synchronized via the web application
to validate the license, at least every thirty (30) days, as set out in the
Documentation. If the Customer fails to comply with this Section 5.3, Sandvik DPA
is entitled to immediately suspend the Service until the relevant CRIBWISE Hardware, or administration portal as applicable, has been
synchronized.
5.4. Sandvik DPA reserves the right to suspend further deliveries, to
render inoperable all CRIBWISE Solutions
previously purchased or otherwise acquired by Customer and to take all other
actions permitted by law in the event Customer fails to pay in full when due
all amounts to Sandvik DPA or to an Approved Source as applicable.
5.5. The Customer shall be solely responsible for all activities by
individual users who the Customer designates to Use the Solution. All Use of
the Solution must be in strict compliance with the Acceptable Use Policy and
this Agreement. The Customer undertakes to indemnify and hold Sandvik DPA, or
any Approved Source, harmless and upon Sandvik DPA´s request defend Sandvik DPA,
or an Approved Source, from any claim, proceeding, liability, loss, cost or
expense inflicted upon or incurred by Sandvik DPA, or an Approved Source,
resulting from any use of the Solution by the Customer’s users or by a third
party who has obtained, lawfully or unlawfully, access to the Solution
(including content) thereof from the Customer or the Customer’s users (or
through any passwords or other access credentials provided to or used by the
Customer or the Customer’s users), including, but not limited to, claims from
third parties, damages, lost profits and additional license fees for Sandvik DPA,
or an Approved Source, or other costs, including reasonable attorney's fees.
5.6. The Customer assumes sole responsibility for all data and results
obtained from its use of the Service, and for conclusions or courses-of-action
drawn from such use, and for maintaining validation, error correction, back up
and reconstruction of its own data input to, or output by, the Service.
5.7. The Customer acknowledges that the Service may contain errors,
including, but not limited to, in respect of displaying available stock and
order management. The Customer must therefore¸inter alia, on a regular basis verify the inventory of the relevant CRIBWISE Hardware (if applicable) as well as ensure that any orders
placed via the Service have indeed been submitted to the relevant supplier, as
further described in the Documentation.
5.8.
The Customer is responsible for ensuring
that its Use of the Solution as well as Third Party Content complies with all
relevant terms and conditions as well as applicable legislation, including
(without limitation) laws related to manufacturing and export restrictions, and
will indemnify Sandvik DPA, and any Approved Source, against any
damages, claims, losses and costs resulting from any
such incorrect or illegal use.
6.
DISCLAIMER AND NO WARRANTY
6.1.
EXCEPT FOR ANY SPECIFICALLY AGREED UPON
LIMITED WARRANTY AS EXHAUSTIVELY SET FORTH IN THE LICENSE DETAILS AND/OR THE
DOCUMENTATION, THE SOLUTION IS PROVIDED "AS IS", "AS
AVAILABLE" AND "WITH ALL FAULTS". TO THE FULLEST EXTENT
PERMISSIBLE BY LAW, SANDVIK DPA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES
OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR
IMPLIED, AS TO: (A) THE CRIBWISE SOFTWARE OR THE CRIBWISE HARDWARE; (B) THE
DOCUMENTATION; (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO SANDVIK
DPA; OR (D) THIRD PARTY CONTENT AND/OR OTHER ASSOCIATED SERVICES PROVIDED OR
MADE AVAILABLE AS PART OF OR TOGETHER WITH THE SOLUTION. IN ADDITION, SANDVIK
DPA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM
INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
6.2.
SANDVIK DPA DOES NOT REPRESENT OR WARRANT
THAT ANY PART OF THE SOLUTION OR THIRD PARTY CONTENT
WILL BE AVAILABLE, ERROR-FREE OR UNINTERRUPTED; THAT INCIDENTS OR DEFECTS WILL
BE CORRECTED; OR FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT
LIMITATION, VIRUSES OR MALWARE. SANDVIK DPA DOES NOT MAKE ANY REPRESENTATIONS
OR WARRANTIES THAT MANUFACTURER CONTENT OR THE INFORMATION, DATA OR
RECOMMENDATIONS FROM THE SERVICE ARE ACCURATE, COMPLETE, OR USEFUL.
6.3.
THE CUSTOMER ACKNOWLEDGES THAT ITS USE OF
THE SOLUTION AND THIRD PARTY CONTENT IS AT ITS SOLE
RISK. SANDVIK DPA DOES
NOT WARRANT THAT THE CUSTOMER’S USE OF THE SOLUTION, THIRD PARTY CONTENT OR
OTHER RESULT FROM THE SOLUTION, IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND SANDVIK
DPA SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT
ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY
NOT APPLY TO THE CUSTOMER TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE
TO THE CUSTOMER AND THESE TERMS.
7.
DATA COLLECTION AND MANAGEMENT
7.1.
General
7.1.1.
The overall principles and framework for
the collection and use of data in connection with the Service are described in
the Documentation and/or the Homepage from time to time
7.2.
Customer Content
7.2.1.
Subject to this Section 7.2 and Section
7.3 below, all rights, title and interest in relation
to Customer Content are retained by the Customer.
7.2.2.
The Customer hereby acknowledges that Sandvik
DPA will use, store, and process Customer Content
provided to Sandvik DPA as required for Sandvik
DPA to provide the Service pursuant to this
Agreement. The Customer shall have sole responsibility for the legality,
reliability, integrity, accuracy and quality of all
Customer Content.
7.2.3.
Sandvik DPA
undertakes to implement security solutions in accordance with certain generally
accepted industry standards designed to protect Customer Content from
unauthorized access or disclosure, as specified in the Documentation. Customer
is encouraged to implement its own backup solutions for Customer Content.
7.3.
Derived Data
7.3.1.
The Customer agrees and acknowledges that Sandvik
DPA may, and Sandvik DPA reserves the right to, create, obtain, collect, store, process and
use Derived Data generated through the Customer’s Use of the Service, such as
metadata and other information about the Customer’s use of the Service,
downloads, in-app purchases, Customer Content, and/or other data; provided,
however, that neither the Customer nor particular users shall be identifiable
in or from such Derived Data. For the avoidance of doubt, Derived Data will not
contain any Personal Data (as defined in the General Data Protection Regulation
(EU) 2016/679).
7.3.2.
All rights, title and interest in relation
to Derived Data will be exclusively retained by Sandvik DPA and may be freely used for Sandvik DPA’s or its affiliates’ own business purposes including the
development, optimization, improvement, marketing, scheduling, and support of (i) the Service; and (ii) other current and future (a)
software, services, and systems; (b) goods, products, equipment, parts, and
services; (c) parts deliveries; (d) processes; and (e) support ((i) – (ii) jointly referred to as the “Purpose”).
7.3.3.
The Customer agrees that the Derived Data
may be shared with third parties for the Purpose, provided that neither the
Customer nor particular users are identifiable from such Derived Data. Customer
also acknowledges and agrees that Sandvik DPA will not provide any copies of (or information about) Derived Data
to Customer, and that Sandvik DPA will
not be required to return or destroy any such Derived Data (upon termination of
this Agreement or otherwise).
8.
PERSONAL DATA PROCESSING
8.1.
In the provision of the Service, Sandvik DPA may process Personal Data (as defined
in the General Data Protection Regulation (EU) 2016/679) related to persons
employed or otherwise engaged by the Customer, e.g. in
relation to hosting, support and maintenance, user accounts and information and
data connected thereto. Customer will be the data controller for such
processing of Personal Data and Sandvik DPA will be engaged by Customer as a data processor pursuant to the General
Data Protection Regulation (EU) 2016/679. Pursuant to such engagement, the
parties hereby agree a separate schedule to this Agreement, the Data Processing
Agreement (DPA) which shall govern the processing of personal data under this
Agreement as set forth at https://app.cribwise.com/public/policies/data_processing_agreement.html
8.2.
9.
FEEDBACK
9.1.
The Customer agrees that any submission of
feedback, suggestions, ideas, or other information or materials regarding the
Solution that the Customer provides, whether by email, in meetings or otherwise
(“Feedback”) is at Customer’s own
risk and that Sandvik DPA has no obligations (including without
limitation obligations of confidentiality) with respect to such Feedback,
unless otherwise specifically agreed in writing. The Customer represents and
warrants that the Customer have all rights necessary to submit the Feedback. If
the Customer elects to provide Feedback to Sandvik DPA, the Customer understands and agrees that Sandvik
DPA may use such Feedback and that the Customer
provides Sandvik DPA an irrevocable right and ability to
reproduce, perform, display, distribute, adapt, modify, re-format, create
derivative works of, and otherwise commercially or non-commercially exploit any and all Feedback whether or not in connection with the
operation and maintenance of the Solution. In the event Sandvik
DPA elects to use any Feedback provided by the
Customer, no compensation is payable or any credit
required in relation to the Customer.
10.
AVAILABILITY, SUPPORT AND CHANGES
10.1.
Sandvik DPA will
use commercially reasonable efforts to keep the Service
available and accessible at all times. Nonetheless, interruptions and
incidents will occur and Sandvik DPA hereby
disclaims any and all obligations or guarantees to
keep the Service available. Sandvik DPA may
upon Customer’s request offer a separate Service Level Agreement (SLA).
10.2.
Sandvik DPA, or its
Approved Source, may provide professional services subject to separate
agreement, for example in relation to installation, integrations, training or other agreed services.
10.3.
Subject to the terms in this Agreement,
the Service includes support services to the extent described on the Homepage
from time to time.
10.4.
Sandvik DPA may
update, improve, modify or otherwise change the
Service at Sandvik DPA’s discretion and without prior notice
to the Customer. Such changes and modifications to the Service may include
changes to the functionality, quality and/or scope of the Service. The Customer
acknowledges that such changes and modifications, or other maintenance work,
may lead to down-time and decreased availability in the Service.
11.
INFRINGEMENT INDEMNITY
11.1.
Sandvik DPA shall
defend the Customer against any third party claim that the Customer’s permitted
use of the Service, including Manufacturer Content, infringes any intellectual
property rights in the EU as of the Effective Date, and shall indemnify the
Customer for any amounts awarded against the Customer in judgment or settlement
of such claims subject to the limitations in this Section 11 and Section 12,
provided that (i) Sandvik DPA is given prompt notice of any such claim; (ii) the Customer provides
reasonable co-operation to Sandvik DPA in the
defense and settlement of such claim; and (iii) Sandvik DPA is given sole authority to defend or settle the claim.
11.2.
In the defense or settlement of any claim,
Sandvik DPA may procure the right for the Customer
to continue using the Service, replace or modify the Service so that they
become non-infringing or, if such remedies are not reasonably available in Sandvik
DPA’s sole discretion, terminate this Agreement
with immediate effect. The Customer shall in case of such termination by Sandvik
DPA be obliged to stop using the Service and the
Customer will, as full and final compensation, obtain a refund equal to any
prepaid license fee pro rata to any remaining period of time
for which Customer is licensed to use the Service according to the License
Details.
11.3.
In no event shall Sandvik
DPA, its employees, agents and sub-contractors be
liable to the Customer to the extent that the alleged infringement is based on
or results from:
11.3.1. a modification of the Service (or any part thereof) by anyone other than
Sandvik DPA;
11.3.2. the Customer’s use of the Service (or any part thereof) in breach of
this Agreement, the Acceptable Use Policy, the Documentation or in a manner
contrary to the instructions given to the Customer by Sandvik
DPA;
11.3.3. any Customer Content;
11.3.4. the Customer’s use of the Service (or any part thereof) after notice of
the alleged or actual infringement from Sandvik DPA or any appropriate authority; or
11.3.5. the use of or combination with any Third Party
Content or with any models, designs, plans, instructions, specifications,
diagrams or the like not provided by Sandvik DPA, provided that such use of or combination with the models, designs,
plans, instructions, specification, diagrams or the like are the basis for the
infringement claim.
11.4.
Sandvik DPA’s liability under
this Section will be reduced proportionately to the extent the liability was
caused or contributed to by an act or omission of Customer or any of its
personnel.
11.5.
The foregoing state the Customer’s sole
and exclusive rights and remedies, and Sandvik DPA’s (including Sandvik DPA’s
employees’, agents’ and sub-contractors’) entire
obligations and liability, for any alleged or proven infringement of any
intellectual property rights.
12.
LIMITATION OF LIABILITY
12.1.
NOTHING IN THIS
AGREEMENT EXCLUDES THE LIABILITY OF EITHER PARTY (I) FOR FRAUD OR FRAUDULENT
MISREPRESENTATION; OR (II) FOR DEATH OR PERSONAL INJURY CAUSED BY GROSS
NEGLIGENCE OR WILFUL MISCONDUCT.
12.2. SUBJECT TO SECTION 12.1: IN NO EVENT WILL SANDVIK DPA BE
LIABLE FOR THE FOLLOWING, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER
ARISING OUT OF THE USE OR INABILITY TO USE THE SOLUTION OR OTHERWISE, EVEN IF SANDVIK
DPA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES: (A) INDIRECT, INCIDENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES; (B) LOSS OR CORRUPTION OF DATA/INFORMATION OR
INTERRUPTED OR LOSS OF BUSINESS; OR (C) LOSS OF REVENUE, PROFITS, GOODWILL OR
ANTICIPATED SALES OR SAVINGS. FURTHER, SANDVIK
DPA AND ITS LICENSORS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS, DAMAGE OR
INJURY WHETHER TO PERSONS, MACHINES,
TOOLS, WORKPIECES OTHER TANGIBLE PROPERTY OR ANY MONETARY LOSS OR DAMAGE, THAT
COULD HAVE BEEN AVOIDED BY THE USER’S COMPLIANCE WITH THE ACCEPTABLE USE POLICY
AND PROPER USE OF THE SOLUTION.
12.3.
SUBJECT TO SECTION 12.1: SANDVIK DPA’S TOTAL LIABILITY IN CONTRACT (INCLUDING IN RESPECT OF THE
INDEMNITY IN SECTION 11.1), TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY
DUTY) MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH
THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED
TO THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SOLUTION TO WHICH THE CLAIM
RELATES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM
AROSE.
13.
TERM OF THE AGREEMENT, CANCELLATION AND
TERMINATION
13.1.
This Agreement is effective as of the
Effective Date and shall continue until terminated in accordance herewith or as
set forth in the License Details. For the avoidance of doubt, the Agreement
will be automatically renewed for additional subscription period(s) unless
either party gives notice of termination in accordance with the online
procedures set out on the Homepage or in the License Details.
13.2.
Termination:
13.2.1.
Either party may terminate this Agreement
if the other party: (a) fails to cure any material breach (including, but not
limited to, late payment by Customer) of this Agreement within thirty (30) days
after receipt of written notice of such breach; (b) ceases operation without a
successor; or (c) seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against such party (and not dismissed within thirty
(30) days thereafter).
13.2.2.
Sandvik DPA may
terminate this Agreement in case of a change of control of Customer (whereby
‘control’ shall mean more than 50 % of the votes or shares in Customer),
provided that such change, in Sandvik DPA´s
reasonable opinion, materially and adversely affects the commercial
relationship between the Customer and Sandvik DPA or any of its affiliates.
13.2.3.
Sandvik DPA may
terminate this Agreement for convenience by giving at least six (6) months’
prior notice.
13.3.
Effect of Expiration or Termination:
13.3.1. In the event of Sandvik DPA’s
termination for convenience under Section 13.2.3, Sandvik
DPA shall refund any prepaid license fee pro rata
to any remaining period of time for which Customer is
licensed to use the Service.
13.3.2. Upon expiration or termination of this Agreement, regardless of cause,
the Customer shall cease any and all use of the
Service, and, if requested by Sandvik DPA,
destroy or return all copies of Documentation and so certify to Sandvik
DPA in writing.
13.3.3. Upon expiration or termination of this Agreement, regardless of cause, Sandvik
DPA (i) may immediately
suspend and revoke the Customer’s right to access and Use the Service, and (ii)
undertakes not to delete Customer Content during a period of thirty (30) days
from the date of expiration or termination, and (iii) undertakes to provide the
Customer the opportunity to download such data in a reasonable format during
said period without additional charge.
13.4.
In addition to the termination rights
above, the Customer acknowledges that Sandvik DPA is entitled, temporarily or permanently, to suspend the Customer
and/or particular users in accordance with what is set
out in the Acceptable Use Policy and in Section 5.3 and 5.4 above.
13.5.
Any provision that by the very nature of
which should survive, shall survive any termination or expiration of this
Agreement.
14.
CONFIDENTIAL INFORMATION
14.1.
The Customer undertakes to treat as
confidential and not disclose any information contained or embodied in the CRIBWISE
Software, Third Party Content made available by Sandvik DPA, Documentation and/or any other material provided by Sandvik DPA in
connection with the Solution (hereinafter collectively referred to as the
"Sandvik DPA Confidential Information") to any
third party or use such Sandvik DPA Confidential Information for any other
purpose than for the due performance of this Agreement provided that this Section
14 shall not extend to any Customer Content or other information which (i) was rightfully in the possession of the Customer prior
to the commencement of the negotiations leading to the Agreement or which is
already public knowledge or becomes so at a future date (otherwise than as a
result of a breach of this Agreement); (ii) was or is independently developed
by the Customer or its representatives as proven by its written records; (iii)
was disclosed to the Customer or its representatives by a third party not under
any obligation to keep such Sandvik DPA Confidential Information confidential,
provided that the Customer shall not corroborate Sandvik DPA Confidential
Information disclosed to it by a third party or otherwise further disseminate
such Sandvik DPA Confidential Information; or (iv) must be revealed due to law
or by order of a judicial or governmental authority or by any applicable stock
exchange regulations or the regulations of any other recognised
market place, provided that the Customer notifies Sandvik DPA of the demand for
disclosure promptly and as far in advance of the date of disclosure as
circumstances reasonably allow (provided such notice is legally permitted) as
to allow Sandvik DPA to seek protective order or other appropriate remedy.
14.2.
The Customer shall not without the prior
written consent of Sandvik DPA divulge any part of the Sandvik DPA Confidential
Information to any person except to (i) the
Customer's employees and third party consultants on a strict need to know
basis; (ii) the Customer's auditors and any other persons or bodies having a
right, duty or obligation to know the business of the Customer and then only in pursuance of such right,
duty or obligation; and (iii) any person who is from time to time appointed by
the Customer to maintain any equipment on which the Service is being used (in
accordance with the terms of this Agreement) and then only to the extent
necessary to enable such person to properly maintain such equipment.
14.3.
Sandvik DPA undertakes to treat as
confidential and not disclose any Customer Content and any other materials
provided by the Customer (hereinafter collectively referred to as the "Customer Confidential Information") to any third party outside Sandvik DPA’s
group of companies, or use such Customer Confidential Information except as
explicitly stated in this Agreement, provided that this Section 14 shall not
extend to any information which (i) was rightfully in
the possession of Sandvik DPA prior to the commencement of the negotiations
leading to the Agreement or which is already public knowledge or becomes so at
a future date (otherwise than as a result of a breach of this Agreement); (ii)
was or is independently developed by Sandvik DPA or its representatives as
proven by its written records; (iii) was disclosed to Sandvik DPA or its
representatives by a third party not under any obligation to keep such Customer
Confidential Information confidential, provided that Sandvik DPA shall not
corroborate Customer Confidential Information disclosed to it by a third party
or otherwise further disseminate such Customer Confidential Information; or
(iv) must be revealed due to law or by order of a judicial or governmental
authority or by any applicable stock exchange regulations or the regulations of
any other recognised market place, provided that
Sandvik DPA notifies the Customer of the demand for disclosure promptly and as
far in advance of the date of disclosure as circumstances reasonably allow
(provided such notice is legally permitted) as to allow the Customer to seek
protective order or other appropriate remedy.
14.4.
Sandvik shall not without the prior
written consent of the Customer divulge any part of the Customer Confidential
Information to any person except to (i) Sandvik DPA’s
or its affiliates’ employees and third party consultants on a strict need to
know basis; (ii) Sandvik DPA’s auditors and any other persons or bodies having
a right, duty or obligation to know the business of Sandvik DPA and then only
in pursuance of such right, duty or obligation; and (iii) any person who is from
time to time appointed by Sandvik DPA to provide, develop, design, configure,
support, maintain or otherwise use the Service and then only to the extent
necessary to perform such task.
14.5.
Each Party undertakes to ensure that the
persons and bodies mentioned in this Section 14 are made aware prior to the
disclosure of any part of the Confidential Information that the same is
confidential and that they owe a duty of confidence to the other Party in
accordance with this Section 14. Each
Party shall be responsible for the acts and omissions of such persons and
bodies to whom such Party divulges such information, with respect to any
access, use, protection or disclosure of such
information, as if such Party had engaged in such acts and omissions.
15.
PURCHASES THROUGH AN APPROVED SOURCE
15.1.
If the Customer has purchased the Service through
an Approved Source (such as a reseller), the following terms shall apply and
have precedence over any other terms set out in this Agreement unless otherwise
specified:
15.1.1. Instead of paying Sandvik DPA, the Customer will pay the applicable fees
directly to the Approved Source, as agreed between the Customer and the Approved
Source. Sandvik DPA may suspend or terminate the Customer’s right to Use the
Service if Sandvik DPA does not receive the corresponding payment from the Approved
Source.
15.1.2. The Customer’s License Details (setting out e.g.
the CRIBWISE Software which the Customer is entitled to use, the term of the
subscription, the number of end users etc.) will be as stated in the order
placed with Sandvik DPA by the Approved Source in accordance with the agreement
between the Customer and the Approved Source, and the Approved Source is
responsible for the accuracy of any such order as communicated to Sandvik DPA.
15.1.3. The Approved Source is not authorized to modify this Agreement or make
any promises or commitments on Sandvik DPA’s behalf, and Sandvik DPA is not
bound by any obligations to the Customer other than as set forth in this
Agreement.
15.1.4. If the Customer is entitled to a refund under this Agreement, then
unless otherwise specified, Sandvik DPA will refund any applicable fees to the Approved
Source and the Approved Source will be solely responsible for refunding the
appropriate amounts to the Customer.
15.1.5. For purposes of calculating the liability cap in Section 12.3, the
amount paid or payable by the Approved Source to Sandvik DPA for the Customer’s
use of the Service under this Agreement will be deemed the amount actually paid
or payable by the Customer to Sandvik DPA under this Agreement.
15.1.6. The Customer is responsible for determining whether the Approved Source may
serve as an administrator of the Service (e.g. assisting
with setting up end user accounts, managing inventory, placing orders) and for
any related rights or obligations in the Customer’s applicable agreement with
the Approved Source. As between Sandvik DPA and the Customer, the Customer is solely
responsible for any access by an Approved Source to the Customer’s accounts.
16.
GENERAL
16.1.
Assignment: Neither this Agreement nor any rights or obligations of the Customer
hereunder shall be assignable or transferable by the Customer, and any
purported assignment or transfer in violation of the foregoing shall be null
and void. This Agreement will bind and inure to the benefit of each party’s
permitted successors and assignees. Sandvik DPA may assign this Agreement in
whole or in part in its sole discretion.
16.2.
Severability: If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision shall be
limited to the minimum extent necessary so that this Agreement shall otherwise
remain in effect.
16.3.
Amendments: This Agreement may be supplemented, modified
or amended unilaterally by Sandvik DPA at any time (provided that such
amendments will not apply retroactively) by way of applicable Sandvik DPA
online terms or Sandvik DPA website terms accepted by the Customer from time to
time (including shrink-wrap, click-wrap, click-through, click-accept or by
continuing to use the Services after due notification). If the Customer do not agree
to the supplemented, modified or amended Agreement, the Customer must stop
using the Service.
16.4.
Construction and Interpretation: The original of this Agreement has been written in English. Customer
waives any rights it may have under the law of its country to have this
Agreement written in the language of that country. This Agreement shall be
equally and fairly construed without reference to the identity of the party
preparing this document as the parties have agreed that each participated
equally in negotiating and preparing this Agreement, or
have had equal opportunity to do so. The parties waive the benefit of any
statute, law or rule providing that in cases of
uncertainty, contract language should be interpreted most strongly against the
party who caused the uncertainty to exist.
The headings and titles to the articles and sections of this Agreement
are inserted for convenience only and shall not be deemed a part hereof or
affect the construction or interpretation of any provision hereof.
16.5.
Entire Agreement: This Agreement (including the Acceptable Use Policy, the License Details and the Documentation) is the complete and exclusive
statement of the mutual understanding of the parties and supersedes and cancels
all previous written and oral agreements and communications relating to the
subject matter of this Agreement.
17.
GOVERNING LAW AND ARBITRATION
17.1.
The Agreement shall be governed by, and construed and enforced in accordance with the
substantive laws of Sweden without regard to its principles of conflicts of
laws.
17.2.
Any and all 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 administered by the Arbitration Institute of the
Stockholm Chamber of Commerce (the SCC Institute). The Rules for Expedited
Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce
shall apply, unless the SCC Institute, taking into account
the complexity of the case, the amount in dispute and other circumstances,
determines, in its discretion, that the Arbitration Rules of the Arbitration
Institute of the Stockholm Chamber of Commerce shall apply. In the latter case,
the SCC Institute shall also decide whether the arbitral tribunal shall be
composed of one or three arbitrators. The seat of the arbitration shall be
Stockholm, Sweden, and the language of the proceedings shall be English.
17.3.
The Parties undertake and agree that all
arbitral proceedings conducted with reference to this Agreement will be kept
strictly confidential. This confidentiality undertaking shall cover all
information disclosed in the course of such arbitral
proceedings. Information covered by this confidentiality undertaking may not,
in any form whatsoever, be disclosed by a Party to a third party without the
prior written consent thereto of the other Party, save for to the extent that
such disclosure is required mandatory under mandatory law or statute.
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