Contract Terms for Services provided to Clients

Transcription

1 Contract Terms for Services provided to Clients 1. Definitions 1.1 This contract is authored by ProjectCompanion AB (org nr ), further referred to as ProjectCompanion. 1.2 This contract is entered into with the organization assuming payment responsibility for provided Services, further referred to as Client. 1.3 This document and its attachments (for example the attachment ProjectCompanion Terms of Use for End Users ) constitute the parties agreement. In the event of discrepancies between this document and any of the attachments, this document shall prevail. 1.4 This contract is a Service contract and does not constitute any lease, transfer of rights, or purchase of any source code, products or property. The services may be used by Client employees and partners (franchise owners, consultants, shop-in-shop, etc) and may not be resold, leased, licensed or in other ways transferred for value. 1.5 Provided Services are; 1) Hosted Services, 2) Consulting Services and 3) Support Services. Each will be described further below. 1.6 Web site means ProjectCompanion s web site at Content means all visual, written or audible data, information or material including, without limitation: documents, spreadsheets, text messages, form entries, web pages, and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Hosted Services by the Client or the Users. 1.8 User refers to the individual who gains access to Hosted Services. 1.9 Terms of Use for End Users means the terms and conditions, available at the Web Site from time to time, to which all Users agree by logging in to ProjectCompanion Hosted Services. Users will be notified of any changes to the Terms of Use for End Users when they log in Workdays refers to days when banks are generally open for business in Sweden. 2. Hosted Services, Description 2.1 Hosted Services means the current version of the web services, associated software, and other services related thereto provided to the Client by ProjectCompanion in accordance with this contract. 2.2 ProjectCompanion Hosted Service is a web-based project portfolio management solution. The purpose of the Hosted Service is to facilitate overview of projects as well as facilitate project management of individual projects. ProjectCompanion AB Phone: +46(0) Web: Götgatan 11 info@projectcompanion.com Stockholm, SWEDEN

2 2.3 The Hosted Services includes 1) access to ProjectCompanion over the Internet using a web browser as described on ProjectCompanion s web site, 2) 128-bit encryption (SSL) of communication between web browser and server, 3) redundant storage of operative data, 4) daily backup of data to secondary storage. 2.4 ProjectCompanion shall be entitled to retain subcontractors for the performance of obligations in accordance with this Contract. ProjectCompanion shall be liable for the subcontractors work and services in the same manner as for its own work and services. 2.5 Hosted Services Platform. Hosted Services are delivered with software from ProjectCompanion (ProjectCompanion Professional Edition), Microsoft Corporation (Windows Server 2008 Datacenter Edition, SQL Server 2008), services from Amazon Web Services LLC (Amazon Elastic Compute Cloud, Amazon Elastic Block Storage, Amazon Simple Storage Device, Amazon Cloudwatch) and Optimum SSL (SSL certificates). 2.6 ProjectCompanion shall hold title to any and all intellectual property rights and technical solutions to the Hosted Services or, in the alternative, shall possess a sole right to use the same. Such intellectual property rights and technical solutions may only be used by the Client in the manner stated in this Contract. Under no circumstances shall the Client or a third party acquire any intellectual property rights to the Hosted Services or to the software or technical solutions used in the Hosted Services, or to any trademark or any other business mark belonging to or used by ProjectCompanion. Access to the Hosted Services is licensed, not sold. 2.7 Trial Services. Trial Services are provided for test purposes only and strictly as is. The Client may use a Trial Service in a manner consistent with the terms and conditions of this Contract, but ProjectCompanion may, at its discretion, disable certain features of a Trial Service and enforce time limits on the Client s right to use the same. In light of the fact that a Trial Service is provided free of charge, ProjectCompanion disclaims all warranties, representations, and liabilities as set forth in this contract and ProjectCompanion shall not be liable for damages of any kind related to the Client s or User s use of a Trial Service. 3. Hosted Services, Prices 3.1 Client s prices for ProjectCompanion Hosted Services are described in the quotation provided to the client, or if no quotation has been created, on Provider s web page. 3.2 Calculation of fee. All Hosted Services provided by ProjectCompanion shall be debited to the Client in advance each month for the enabled number of User accounts of each type according to Table 1. The Client may upgrade with additional users and storage. Such users and storage will be charged retroactively based on the enabled number of User accounts of each type and used data storage at the end of the month. 3.3 Minimum charge. The Minimum Monthly Charge is SEK 99. Client may increase or decrease the number of accounts as long as the minimum charge is reached. 3.4 Changes of prices. Prices will be updated by ProjectCompanion to reflect changes in service offering and market conditions. Page 2 / 11

3 4. Hosted Services, Availability, Reduction of Fees, Maintenance 4.1 Availability of Hosted Services. The Hosted Services shall be generally accessible to Client via the Internet. The guaranteed uptime is 99.5% on an annual basis. 4.2 Reduction of fee. If the annual uptime of Hosted Services in a full calendar year is less than 99.5% but greater than 98.0%, Client will receive credit of 10% of what has been paid for Hosting Services in that calendar year. If the annual uptime of Hosted Services in a full calendar year is less than 98%, Client will receive credit of 20% of what has been paid for Hosting Services in that calendar year. 4.3 Maintenance of Hosted Services. The planned downtime for maintenance is 2 hours per month. Upgrades and maintenance are scheduled on weekends at nighttime. 4.4 ProjectCompanion reserves the right to implement new versions and upgrades of the Hosted Services including but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Hosted Services, at any time without prior notice. Such changes shall not affect the price of the Hosted Services. 5. Hosted Services, Content 5.1 Content. All Content uploaded to, transferred through, publicly posted, processed or entered into the Hosted Services by the Client shall remain the sole property of the Client or its respective legal owner. ProjectCompanion shall have no liability for such Content. 5.2 System categories. System categorizations which are general in nature (including but not limited to project types, service types, time reporting activities, project roles, organization roles, expense types, etc) are similar in nature across ProjectCompanion installations and ProjectCompanion is not hindered to use system categories and configuration settings in other situations. 5.3 ProjectCompanion shall not be responsible for loss or distortion of Content forwarded electronically in or through the Hosted Services where such is not due to the gross negligence or intentional acts of ProjectCompanion. 6. Hosted Services, Warranty, Error Correction 6.1 Warranty. ProjectCompanion warrants to the Client that the Hosted Services will perform substantially and materially in accordance with its documentation available on the Web Site, under normal use and circumstances. 6.2 Except for the express warranties set forth above and to the extent permitted by law, ProjectCompanion expressly disclaims all other warranties with respect to the Hosted Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Hosted Services, that the Hosted Services will meet specific Page 3 / 11

4 requirements, that the Hosted Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Hosted Services will be corrected. 6.3 Error correction. In the event of defects that impede the Client s use of the Hosted Services and that are attributable to an error in ProjectCompanion relative to the documentation available on the web site, ProjectCompanion undertakes to rectify such defects without unreasonable delay. Errors are grouped in levels of priority. Critical: Very serious impact on Client s business. Solution is inaccessible. High: Serious impact on Client s business. Reduced functionality. Medium: Influences User work. User can work but with reduced efficiency / functionality. Low: Small impact for User. User can work without loss of productivity. Priority Start of problem solving Solution within (goal) Maximum solution time Critical Immediately 4 hours 3 days High Immediately 8 hours 3 days Medium Within 8 hours 4 days 7 days Low Not specified 12 days 30 days If the maximum solution time is exceeded more than four times within three months, it shall be considered a material breach of this contract by ProjectCompanion and the Client shall be entitled to terminate the contract according to ProjectCompanion may demand reasonable compensation for error corrections if the stated error is perceived as an error by Client but not by the majority of Clients using ProjectCompanion according to the manuals and guidelines available at the web site. Error notification must be given by the Client in writing and within a reasonable time of the discovery of the defect. 7. Hosted Services, Security 7.1 Security. ProjectCompanion shall guarantee that the security of the Hosted Services meet relevant industry standards. This includes at least redundant operative data storage, encryption of communication and daily backup to redundant storage. 7.2 The Client understands that data is stored on servers powered by Amazon Web Services and accepts the general security standards of Amazon Web Services as set forth at their Security Center: 8. Hosted Services, Confidentiality 8.1 Confidentiality. ProjectCompanion may not disclose data stored in the Hosted Service to any third party. Storing data on Amazon Web Services shall not be considered to disclose data to a third party. Page 4 / 11

5 8.2 Except for situations pursuant to the Client s instructions or support requirements, legal provisions, public authority regulations or court orders, ProjectCompanion shall not be entitled to review Content processed by the Client via the Hosted Services. 8.3 ProjectCompanion undertakes not to disclose to any third party, or otherwise make available, information received by ProjectCompanion from the Client or Users within the scope of the Contract. This confidentiality obligation shall not apply to such information as ProjectCompanion can demonstrate became known to ProjectCompanion other than pursuant to this Contract or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders. The duty of confidentiality shall remain in force notwithstanding the termination of the Contract. 8.4 ProjectCompanion reserves the right to analyze usage patterns of Hosted Services in an aggregated form. 8.5 The Client agrees that ProjectCompanion may disclose the fact that the Client is a paying Client of ProjectCompanion. In relation thereto, the Client agrees that ProjectCompanion may use the Client s name and logo to identify the Client as a Client of ProjectCompanion on the Web Site, and as part of a general list of ProjectCompanion s Clients for use and reference in ProjectCompanion s promotional and marketing literature. 9. Hosted Services, Use and Obligations 9.1 Third party software. Client is responsible for that third party client software is installed and configured according to ProjectCompanion s instructions. 9.2 Normal use. The Hosted Services may only be used for legal purposes. The Hosted Services are provided for normal use, as described by ProjectCompanion s manuals and guidelines. Use of Hosted Services in conflict with manuals and guidelines may lead to suspension of Hosted Services. ProjectCompanion may demand reasonable compensation in order to resume operations disturbed by abnormal use. 9.3 The Client is aware and acknowledges that the Client is fully liable for the Users to whom the Client affords access to the Hosted Services. 9.4 The Client shall ensure that User identities, passwords, and equivalent obtained by the Client in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Client shall be liable for any unauthorised use of the Hosted Services. ProjectCompanion shall have no liability for any loss or damage arising from the Client s failure to comply with these requirements. 9.5 Where it is suspected that any unauthorised person has become aware of a user identity and/or password, the Client shall immediately inform ProjectCompanion thereof and also change such user identity and/or password. Page 5 / 11

6 9.6 The Client shall be liable for losses or damage incurred by ProjectCompanion where the Client intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorised party, unless the Client notifies ProjectCompanion immediately upon suspicion that such has occurred. 9.7 Client is responsible for that third party users accessing the service are informed of Terms of Use for End Users as described at the end of this document. 9.8 ProjectCompanion shall indemnify and keep Client indemnified against all liabilities, costs and expenses in respect of claims brought against Client by third parties in relation to loss of data. In the event that Client seeks indemnification under this Clause, Client shall inform ProjectCompanion of the claim as soon as reasonably practicable after Client receives notice of the claim and shall (a) permit ProjectCompanion to assume direction and control of the defence of the claim (including the right to settle such claim at its discretion; provided, that no such settlement may be entered into without Client s consent if such settlement may adversely impact Clients s rights hereunder), and (b) cooperate as requested (at the expense of ProjectCompanion) in the defense of such claim. 9.9 The Client shall be responsible for the activities conducted by the Client and the User s within the Hosted Services and shall ensure compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Hosted Services by the Client and/or Users shall be the sole responsibility of the Client The Client shall be responsible for monitoring its Content and shall be liable vis-à-vis ProjectCompanion for ensuring that Content transferred to or handled within the Hosted Services which is processed by the Client and/or Users does not infringe any third party rights nor in any other manner violates governing legislation, and that the Client and Users possess such necessary licenses from third parties as may be required in order to process the Content/use the Hosted Services The Client is aware of and acknowledges that it is not permitted to use the Hosted Services in order to gain material in violation of law The Client undertakes not to use the Hosted Services in any manner which may result in the infringement of any third party s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Hosted Services in any other manner incompatible with the purpose thereof The Client undertakes not to provide access to the Hosted Services to anyone else than Users who have agreed to the Terms of Use for End Users. User accounts cannot be shared or used by more than one individual User Client shall defend and indemnify ProjectCompanion for any claim, suit or proceeding brought against ProjectCompanion by Users and/or third parties that are connected to Content Page 6 / 11

7 processed by Users/the Client within the Hosted Services or for which the User/Client is otherwise responsible The Client may not in any way modify, decompile, disassemble or reverse engineer the Service. 10. Hosted Services, Personal Information 10.1 In order for the Client to be able to use the Hosted Services, the Client must provide certain data to ProjectCompanion regarding the Client s representatives, including but not limited to full name, address, contact details and type of organisation. Following receipt of such data, ProjectCompanion will process the same using automatic data processing in order to enable ProjectCompanion to administer and otherwise perform its obligations within the scope of the Hosted Services and to ensure that unauthorised persons do not gain access to the Hosted Services In addition, in order for the Client to be able to use the Hosted Services, the Client must also allow ProjectCompanion to store and retrieve session information on the Client s representatives end terminal equipment, through the use of cookies. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Hosted Services According to the Personal Data Act (1998:204), ProjectCompanion, if necessary, shall obtain the consent of the Users to the processing of the relevant personal data by ProjectCompanion. ProjectCompanion is also obligated to provide information to the Users regarding the processing. The relevant provisions in this respect appear in the Terms of Use for End Users According to the Electronic Communications Act (2003:389), ProjectCompanion, if necessary, shall obtain the consent of the Users to the purpose of storage and retrieval of information on the Users end terminal equipment. The relevant provisions in this respect appear in the Terms of Use for End Users The Client is aware of and acknowledges that ProjectCompanion will obtain the consent of the Users according to section Hosted Services, Personal Information. Client is obliged to ensure that such consent is given by the Users. A User that does not give its consent will not gain access to the Hosted Service ProjectCompanion shall adopt reasonable measures to protect the privacy of the Client and its Users. Page 7 / 11

8 11. Consulting Services and Support, Description and Prices 11.1 ProjectCompanion agrees to assist the Client during implementation and use of Hosted Services. Such assistance will be provided in the form of 1) Consulting Services and 2) Support Services. Table 2 Consulting Services Description, examples Price Business consulting Business analysis, training, implementation, SEK 1200 / hour project management Development Programming and integration SEK 900 / hour Support Services Description Price Support Support exceeding 8 hours per month. SEK 600 / hour 11.2 Free Application Support. Support regarding application functions via phone and is included in the service during workdays, office hours 9-16 Central European Time. The free monthly support hours are limited as specified in Table 2. Business consulting and development are not included in the free support Modification of source code. Any development or modifications made to the source code of the Hosted Services shall be the sole property of ProjectCompanion. 12. Invoicing and Payment 12.1 Invoicing. Invoicing for Hosted Services is made monthly in advance based on the use of Hosted Services as described in Table 1. Invoicing for Consulting Services and Support is made after services have been performed Taxes. Prices are specified exclusive of value added tax Payment terms. Invoices should be paid no later than 30 days after the invoice date. ProjectCompanion is entitled to invoice interest for late payments according to law after the invoice due date. ProjectCompanion shall be entitled to charge SEK 50 for any payment reminders ProjectCompanion may temporarily disable the Client s and the Users access to the Hosted Services in the event the Client has overdue payments in excess of thirty (30) days. In addition, ProjectCompanion may delete and destroy the Client s Content and to immediately terminate this Contract in the event of overdue payments in excess of ninety (90) days In the event of early termination of this Contract or Hosted Services, the Client shall not be entitled to a refund of any prepaid fees. 13. Termination and Consequences of Termination 13.1 Termination of Contract. Client or ProjectCompanion can terminate the contract in writing on 90 days notice. If Client terminates the contract, ProjectCompanion shall be entitled to immediately receive payment for the full remainder of the contract duration. The client shall not be required to Page 8 / 11

9 pay for the full remainder of the contract duration if client terminates the contract due to negligence by ProjectCompanion. In this case the Client shall not be required to pay for Hosted Services delivered after the date of termination and may be entitled to sanctions according to section Termination under specific circumstances. The Client shall be entitled to prematurely terminate the Contract in writing where: (a) operational disruptions or data traffic errors occur to such an extent that the Client does not have access to the Hosted Services during a period in excess of fourteen (14) days; (b) ProjectCompanion is in material breach of its obligations under the Contract and fails to effect rectification within fourteen (14) days of a demand therefore; or (c) ProjectCompanion is placed into insolvent liquidation or is otherwise insolvent. The Client shall not be required to pay for the full remainder of the contract duration if Client terminates the contract due to circumstances described in a, b and c in this section Client data. In the event either party terminates the contract, Client data shall upon Client request be made available to the Client within 30 days ProjectCompanion shall be entitled, with immediate effect, to disable the Client s access to Hosted Services or to prematurely terminate the Contract in writing where: (a) the Client or a User uses the Hosted Services in a manner that entails the perpetration of a crime; (b) the Client or a User uses the Hosted Services in a manner that occasions losses or the risk of loss for ProjectCompanion or any third party; (c) the Client or a User uses the Hosted Services in a manner that violates ProjectCompanion s security or administrative regulations; (d) it may be reasonably assumed that continued dissemination of Content violates governing law; (e) notwithstanding reminders, the Client fails to pay agreed fees to ProjectCompanion within a stated time; (f) the Client or a User uses the Hosted Services in a manner whereby the Client utilises resources or seeks unauthorised access to ProjectCompanion s systems which are not intended for the Client; (g) the Client otherwise fails to comply with the Contract and such breach of contract is material; or (h) the Client is placed into insolvent liquidation or is otherwise insolvent. 14. Liability 14.1 Subject to the limitations set forth in this Contract, ProjectCompanion shall only be liable for direct damages resulting from ProjectCompanion s negligence ProjectCompanion shall not be liable in any case if ProjectCompanion can show that Hosted Service provision has been hindered by 1) faults in user equipment or software, 2) virus or other security threats emanating from User systems, 3) conditions outside ProjectCompanion s responsibilities, such as communication, 4) DoS-attacks, or 5) force majeure ProjectCompanion shall be liable for direct losses incurred by Client with respect to loss of data caused by ProjectCompanion s negligence. ProjectCompanion shall not be liable for any losses incurred by Client with respect to loss of data if ProjectCompanion has made backup data available to Client no less than one week before the data loss occurred. Page 9 / 11

10 14.4 ProjectCompanion s liability under this Contract shall under all circumstances be limited as follows. ProjectCompanion s total liability in damages shall be limited to direct losses in an amount corresponding to the agreed fees paid by the Client for the Hosted Services during the period of six (6) months immediately prior to the breach of contract that entitles the Client to damages In the absence of intent or gross negligence by ProjectCompanion, under no circumstances shall ProjectCompanion be liable for indirect or consequential losses, including but not limited to loss of profits or anticipated savings, loss of revenue, loss of data, or third party claims The Client may claim sanctions only where the Client provides ProjectCompanion with a written notice thereof not later than forty five (45) calendar days after the Client knew, or should have been aware, of the grounds for the claim. 15. Force Majeure 15.1 A party shall be released from liability in damages and other sanctions where the performance of a specific obligation is prevented or rendered onerous due to circumstances beyond a party s control and which could not reasonably have been foreseen. Such force majeure events include, inter alia, labour conflicts, lightning, fire, decisions of public authorities or other public regulations, errors in another operator s network, delays in services from subcontractors due to events as stated above, general scarcity of transport, goods, or energy, or other similar circumstances Where a party s performance is prevented for a period in excess of three (3) months due to an event as stated above, either party shall be entitled to terminate the Contract in writing without any obligation to pay compensation. 16. Governing Law and Disputes 16.1 In the event of any dispute relating to this Contract, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court proceedings Legal matters. 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 Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish. The arbitral tribunal shall be composed of a sole arbitrator. This contract shall be governed by the substantive law of Sweden. 17. Changes to the Contract, Duration, etc 17.1 ProjectCompanion reserves the right to amend the terms and conditions of this Contract. The Client shall be informed of such amendments by or through the information being made available on the Web Site. The Client shall be deemed to have received such notice within two (2) weeks of the notice being sent by or made available on the Web Site. Where the Client does not accept the amendment, the Client shall be entitled, within thirty (30) calendar days from the date of dispatch of the or, where appropriate, thirty (30) calendar days from the amendment Page 10 / 11

11 being published on the Web Site, provided that the changes have an adverse effect, that could not be considered as minor, on the Client, to terminate the Contract with immediate effect. Where the Contract is not terminated by the Client within the aforementioned time, the Client shall be deemed to have accepted the new terms and conditions Contract duration and renewal. The contract duration is 12 months. The contract shall be renewed automatically unless it is terminated in writing at least 90 days before the contract end date. 18. General Provisions 18.1 If any part of this contract is found void and unenforceable, it will not affect the balance of the contract. The parties acknowledge that ProjectCompanion has set its prices and entered into this contract in reliance upon the contract duration, limitations of warranty and liability, and that this forms an essential basis for the contract. 19. Signatures The persons signing on behalf of the parties to this contract warrant that they have the legal authority to execute the contract. Place and date: Stockholm, date: Client organisation ProjectCompanion AB Client representative Page 11 / 11