OMBEA Insights Terms and Conditions

1. Introduction

1.1 OMBEA AB is a Company registered in Sweden under number 556844-9937.

1.2 OMBEA Ltd is a Company registered in England and Wales under number 9221898.

1.3 These are the terms and conditions upon which OMBEA provides OMBEA Insights, including the ExpressPod, Web and Support Services. Please read them carefully. In certain places they restrict your legal rights. Please contact OMBEA if you want to clarify or discuss any of these terms and conditions.

1.4 These terms and conditions may be revised or updated at any time without notice. The current version of these terms and conditions can be found at www.ombea.com/insights-terms.

2. Definitions and Interpretation

2.1 "Affiliate" of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) directly or indirectly owned or controlled by the Party, for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty percent (50 %) of the nominal value of the issued equity share capital or more than fifty percent (50 %) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;

2.2 "Agreement" means the agreement between the Seller and the Buyer, consisting of these General Terms and any other terms applicable to the Services;

2.3 "Seller" means a Seller in the OMBEA Group, namely OMBEA AB or Ltd.

2.4 "Confidential Information" shall have the meaning set out in Section 8.1;

2.5 "Buyer" means the Seller entering into the Agreement with the Seller;

2.6 "Fee(s)" means the compensation paid by the Buyer to the Seller for the Services;

2.7 "General Terms" means these General Terms and Conditions;

2.8 "Intellectual Property Rights" means: (i) patents, inventions, designs, copyright (including the right to amend, modify, develop and assign) and related rights, database rights, trademarks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world;

2.9 "Parties" and "Party" means the Seller and the Buyer jointly and separately;

2.10 "Purchase Order" shall mean the electronic purchase order entered into by the Seller and the Buyer;

2.11 "Service(s)" shall mean the ExpressPod Services, ActionPad Services, QuickSurvey and the Support Services, as well as any other services agreed to be provided by the Seller to the Buyer;

i) "ExpressPod Service(s)" means the Buyer satisfaction tracking and analysis services based on ExpressPods provided by the Seller to the Buyer, as set out in the Agreement.

ii) "ActionPad Service(s)" means the tracking and analysis services based on the ActionPads and ActionLink provided by the Seller to the Buyer, as set out in the Agreement.

iii) "QuickSurvey" means the online survey tool provided by the Seller to the Buyer, as set out in the Agreement.

iv) "Support Services" shall mean the support services provided by the Seller or its third party partner to the Buyer, as set out in the Agreement.

2.12 Words importing the singular shall include the plural and vice versa, words importing a gender shall include all genders and words importing persons shall include bodies corporate, unincorporated associations and partnerships;

2.13 Any reference to a statute, statutory provision or subordinate legislation is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;

2.14 References to clauses are references to clauses of these terms and conditions; and

2.15 Headings are included for ease of reference only and shall not affect the interpretation or construction of these terms and conditions.

3. General

3.1 These General Terms are applicable to the Agreement between the Buyer and the Seller and set out the terms under which the Seller shall provide the Services to the Buyer.

3.2 The Buyer enters into the Agreement with the Seller by emailing an electronic Purchase Order to orders@ombea.com.

3.3 All Services are subject to the Agreement at all times. The Services may be subject to additional third party terms and conditions, which terms and policies shall be communicated to the Buyer by the Seller or its subcontractors.

4. Scope of Services

4.1 The Seller shall provide the Services to the Buyer substantially as set out in the Agreement. The Services are provided "as-is", without any additional warranties.

4.2 Reports as regards the Services are provided to the Buyer either via e-mail or via the Seller’s Website. If reports are provided via the Seller’s Website, a user account will be created for the Buyer. The Buyer agrees to keep the user account and credentials secure from third parties. The Buyer is responsible for all actions or omissions performed using its user account. The Seller’s Website is provided on an "as-is" and "as available" basis, and the Seller does not commit to any service levels.

4.3. The ExpressPod is supplied ready for use unless otherwise agreed. The ExpressPod contains a GSM module for sending and receiving information. The Buyer is responsible for ensuring that the necessary data and telecommunication systems which the ExpressPod Services require are available (GSM network signal is required for uploading reports). The Seller is not liable for any issues arising as a result of third party carrier network providers.

4.4 The Buyer is solely responsible and liable for all activities conducted through the Buyer’s User Account. To prevent unauthorized use, the Buyer shall keep the password confidential and shall not share it with any third party or use it to access third party websites or services. If the Buyer suspects that someone else knows the password, then it should immediately change in order to protect the security of the Account. It is the Buyer’s responsibility to ensure they do not respond to any unsolicited requests for passwords or other data. OMBEA takes no responsibility for Buyers failure to comply with these obligations.

4.5 From time to time, the Seller may need to perform maintenance on or upgrade the Equipment or the underlying infrastructure that enables you to use the Equipment. This may require a temporary suspension or limitation to use of some or all of the Solutions until such time as this maintenance and/or upgrade can be completed. To the extent possible and unless an intervention is urgently required, OMBEA will publish the time and date of such suspension or limitation in advance. You will not be entitled to claim damages for such suspension or limitation of the use of any Solutions.

4.6 The Seller is able to offer training Services from time to time and at its sole discretion. Such training Services are provided via webinar sessions, and other online resources, in the English language.

4.7 The Seller offers support Services as regards technical support. Such support is available via email, using the contact information provided on the Seller’s Website, or via our online chat facility. Support is usually available via these channels from 8am to 10pm GMT. The Seller shall use its reasonable efforts to reply to emails without undue delay. Support has limited availability during weekends and public holidays.

4.8 The Seller may direct the Buyer towards a third party partner for first line support.

5. Intellectual Property Rights

5.1 All rights, title and interest, including all Intellectual Property Rights in and to the Services and any changes thereto shall belong exclusively to the Seller or its licensors. Except for the express license to use the Services granted to the Buyer under and in accordance with the terms and conditions of the Agreement, the Buyer shall have no and shall not obtain any rights, license or interests in and to the Services or any Intellectual Property Rights pertaining thereto.

5.2 The Buyer shall have a limited non-exclusive, non-transferable, non-sublicensable right to use the Services during the term of the Agreement in its internal business operations.

6. Indemnification

6.1 The Seller agrees to defend the Buyer, at its own expense, against any third party claims or actions where a third party claims that the Services infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Buyer:

6.1.1 notifies the Seller of such claim immediately upon receipt of notice thereof;

6.1.2 provides the Seller, free of charge, with all available information, permissions and assistance;

6.1.3 grants the Seller the exclusive and sole right to control the defence of the claim; and

6.1.4 does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of the Seller.

6.2 If the Buyer has acted in accordance with Sections 6.1.1 to 6.1.4, the Seller shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.

6.3 If the Seller justifiably deems that the Services infringe or may infringe upon any third party rights, the Seller shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Buyer the right to continue the use Services; or (b) replace the Services; or (c) modify the Services to the extent necessary to avoid the infringement.

6.4 If none of the alternatives defined in Section 6.3 are available to the Seller on commercially reasonable terms and/or without the significant loss of time, the Seller shall have the right to terminate the Agreement in whole or in part subject to a notice period set by the Seller, upon which the Buyer agrees to cease using the Services, and the Seller agrees to reimburse the Fees paid by the Buyer for the terminated Services, less a proportion equal to the time of use of the Services by the Buyer.

6.5 The indemnity in this Section 6 shall not apply to, and the Seller is not liable for any claim that (a) is based on a claim by any Buyer Affiliate; or (b) is based on the modification or alteration of the Services or a modification or alteration influencing the Services by the Buyer or any third party; or (c) results from complying with any instructions, specifications or design given by the Buyer or any third party under the command and control of the Buyer; (d) arises or results from the use of the Services in combination with any software, equipment or products not developed or supplied by the Seller or which are contrary to instructions given by the Seller; or (e) could have been avoided by using the latest version of the Services made available by the Seller to the Buyer.

6.6 This Section 6 sets out the entire liability of the Seller and the Buyer’s sole remedy in case of any infringement of any Intellectual Property Rights.

7. Personal data and Buyer Data

7.1 To the extent the Buyer submits, processes or stores any personal data into the Services, the Seller (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Buyer while the Buyer remains at all times the data controller for such personal data. The Seller processes data submitted by the Buyer to the Seller in accordance with applicable laws, decrees and regulations. The Buyer represents and warrants that it is authorized to instruct the Seller and its subcontractors to process such personal data. The Buyer represents and warrants that it has the right to collect the personal data provided to the Seller for processing.

7.2 The Seller can provide the Buyer information on where the Seller’s or its subcontractors’ servers are located, on request. The Buyer shall be solely responsible for ensuring that it has the right to transfer personal data to the countries where the hosting partner’s servers are located.

7.3 The Buyer is solely responsible for making appropriate backups of its data, and the Seller or its subcontractors shall in no way be liable for any deletion of or failure to store any data of the Buyer or other communications maintained or transmitted to the use of the Services.

7.4 After the termination of the Agreement for any reason, the Seller shall retain the Buyer’s data for thirty (30) days and make it available to the Buyer via the Seller’s website. After the thirty (30) days’ period, the Seller shall have the right to destroy the Buyer’s data without any liability towards the Buyer.

7.5 The Seller shall have the right to use any data of the Buyer in an anonymized form in any way (e.g. for the purposes of making general statistics about end Buyer satisfaction, and providing those statistics to the Seller’s Buyers).

8. Suspension of Service

8.1 The Seller shall have the right to suspend the provision of the Services for a reasonable period of time without any liability towards the Buyer if this is necessary in order to perform installation, change or maintenance work in respect of the Services or if such suspension results from installation, change or maintenance work in respect of public communication networks. The Seller shall also have the right to suspend the provision of the Services due to a data security risk to the Services or if law or administrative order requires the Seller to do so.

8.2 The Seller shall always have the right to suspend the Services without any liability towards the Buyer, if the Buyer is in default with its payment of the Fees due under the Agreement and does not pay such Fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the Buyer has paid all Fees due under the Agreement.

8.3 The Seller shall have the right to suspend the provision of the Services and to deny the Buyer’s access to the Services without first hearing the Buyer, without any liability towards the Buyer, if the Seller reasonably suspects that the Buyer burdens or uses the Services contrary to the Agreement, applicable laws or administrative orders or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Services to other users.

9. Fees

9.1 The Fees for the Services have been set out in the Purchase Order. Any Services, not expressly defined in the Purchase Order as being included in the Fees shall be charged in accordance with the Seller’s price list as in force from time to time.

9.2 Fees for the use of the Services shall be invoiced in advance for the applicable invoicing term, which shall be twelve (12) months unless stated otherwise in the Purchase Order.

9.3 The Seller reserves the right to increase the rates applicable to the Services where this is justified due to the general increase of the Seller’s costs and expenses of production (such as but not limited to general increase of labour costs and expenses), or in the case of increase of costs of third party offerings. The Seller shall inform the Buyer of such change at least thirty (30) days before the effective date of the change. In such a case the Buyer shall have the right to terminate the Agreement subject to thirty (30) days’ prior written notice. The termination notice must be delivered to the Seller in writing prior to the effective date of the change.

9.4 All rates and Fees are set out without value added tax (VAT) or any other applicable sales taxes, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations.

9.5 The Seller reserves the right to claim statutory interest at 8% above the Bank of Sweden reference rate in force on the date the debt becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002.

10. Confidentiality

10.1 Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential ("Confidential Information"), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; or (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party.

10.2 The obligations of confidentiality in Section 10.1 above shall not prevent a Party from disclosing Confidential Information where it is required to do so under any mandatory law, or by order of a court or governmental body of authority of competent jurisdiction, or by any mandatory requirement of a regulatory authority. If legally possible and applicable, the recipient of such order shall notify the disclosing Party to allow a reasonable opportunity to seek protective order or equivalent or to appeal, and to extent reasonably possible, make effort to protect any sensitive information.

10.3 Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.

10.4 Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.

10.5 The rights and obligations related to the Confidential Information shall survive the termination of the Agreement for any reason for a period of three (3) years from such termination.

11. Limitation of Liability

11.1 The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed the amount of Fees for Services paid by the Buyer to the Seller during the twelve (12) months immediately preceding the event giving rise to liability.

11.2 A Party shall not be liable for any indirect, incidental, or consequential damages, loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.

11.3 The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 6 (Indemnification) or Section 10 (Confidentiality) or to the Buyer’s obligation to pay the applicable Fees.

12. Term and Termination

12.1 The Agreement shall enter into force on the date set out in the Purchase Order.

12.2 The Agreement shall remain in force for an initial term as set out in the order, after which the Agreement shall automatically be renewed for a new consecutive term of twelve (12) months unless terminated by a Party at least ninety (90) days prior to the end of the then-current term.

12.3 Each Party may terminate the Agreement for cause with immediate effect upon written notice to the other Party if:

12.3.1 the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or

12.3.2 the other Party is in material breach of the terms and conditions of the Agreement and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.

12.4 Upon the termination of the Agreement, any Fees owed by the Buyer for any Services provided until the effective date of the termination shall become immediately due. All Fees are non-refundable.

13. Governing Law and Disputes

13.1 The Agreement shall be governed by Swedish law and any disputes under this agreement shall be dealt with by the courts of Sweden.

13.2 Notwithstanding anything set out in Section 13.1 above, the Seller shall have the right to claim unpaid Fees in a public court.

14. Other Terms

14.1 The Seller shall be free to use subcontractors in the performance of its obligations and exercise of its rights under the Agreement. The Seller shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.

14.2 The Seller shall have the right to use its relationship with the Buyer in its marketing and sales promotion activities.

14.3 Neither Party shall be liable for any delays or non-performance of its obligations or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into the Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a subcontractor of Party shall also discharge such Party from liability, if the work to be performed under subcontracting cannot be done or acquired from another source without incurring unreasonable costs or significant loss of time. Each Party shall without delay inform the other party in writing of a force majeure event and the termination of the force majeure event.

14.4 All formal notices and other formal communication between the Parties hereunder shall be made in the English.

14.5 Neither Party shall have the right to assign or transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Seller shall, however, have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.

14.6 Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.