SALLY R - General Terms and Conditions for ADA

Valid from 2020-09-01

1. Definitions

1.1. “Supplier” means Sally R AB, a Swedish company with its registered address at Navigatörgatan 10, 721 32 Västerås, Sweden; registered company number 559050-0400.

1.2. “Customer” means any legal entity or natural person with whom an agreement regarding Customer’s use of Supplier’s cloud service ADA has been made or quotation has been submitted by the Supplier.

1.3. “Party” means the Supplier or the Customer.

1.4. “Terms” means these General Terms & Conditions for ADA.

1.5. “Service” means Supplier’s cloud service ADA, which provides algorithm-based optimization of a ventilation system by reading sensor data from the target AHU (air handling unit) and sending back optimal set-points for the AHU, in real-time, as further specified in the Specification.

1.6. “Specification” means the specification of the contents of the Service contained in the Agreement or on https://www.sally-r.com

1.7. “Agreement” means the agreement entered into between the Parties regarding Customers use of the Service as well as any changes thereof, and to which these Terms constitute an appendix.

1.8. “Access Point” means the point or points at which Supplier connects the Service to a public electronic communications network.

1.9. “Business Day” means a day other than a Saturday, Sunday or public holiday in Sweden.

1.10. “Customer Data” means any data submitted or transmitted to the Service by the Customer in connection with its use of the Service.

1.11. “Defect” means an error resulting from a deviation from the agreed specifications or other express requirements set forth in the Agreement and which causes a material incorrect or inadequate functioning or non-functioning of the Service.

1.12. “Derivative Data” means data that have been created by the Service based on Customer Data or that have been derived from Customer Data by the Service.

1.13. “Data” means Customer Data and Derivative Data.

1.14. “Equipment” means the hardware and software required for the use of the Service, such as sensors, HVAC systems, fans etc, and as informed by the Supplier.

1.15. “Fee” means the aggregate amount to be paid by Customer to Supplier for the right to access and use the Service.

1.16. “Privacy Policy” means Supplier’s privacy policy, currently posted at www.sally-r.com.

1.17. “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account, whether authorized or not.

1.18. “Software” means the software provided to Customer as a software-as-a-service via the internet by or on behalf of Supplier in connection with Customer’s use of the Service.

1.19. “Website” means the Supplier’s website https://sally-r.com.

2. Applicability

2.1. The Terms apply to all requests, quotations, purchase orders or agreements concluded between the Supplier and the Customer regarding the Service.

2.2. These Terms constitute an Appendix to the Agreement entered into between the Parties. In case of conflict between provisions included in these Terms and the Agreement, and provided that the circumstances surrounding the provision of the Service do not apparently give rise to another interpretation, the parts of the Agreement prepared by the Parties shall take precedence over these Terms.

3. Provision of the Service

3.1. From the agreed start date and during the term of the Agreement, Supplier undertakes to provide access to the Service at the Access Point in accordance with the terms and conditions of the Agreement.

3.2. The Parties may enter into a separate agreement regarding the implementation of the Service and any additional services to be provided by Supplier in connection with such implementation.

3.3. The Service shall be provided in a professional manner.

3.4. Unless otherwise follows from the Agreement and subject to Supplier’s Privacy Policy, Supplier has the right to provide the Service, in whole or in part, from another country, if Supplier fulfills the terms and conditions of the Agreement.

3.5. Supplier may engage subcontractors to perform the Service and other obligations under the Agreement. In such case, Supplier is responsible for a subcontractor’s work as if it had been performed by Supplier itself.

4. Customer’s responsibilities

4.1. Customer is responsible for the communication between Customer and the Access Point. Customer is responsible for acquiring and maintaining the Equipment needed for the use of the Service. Customer is also responsible for third party programs such as web browsers, pdf readers, toolbars, anti-virus and firewalls being correctly installed and that they allow traffic to web sites designated by Supplier.

4.2. Customer must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service; or in any way that is unlawful, illegal, fraudulent or harmful.

4.3. Customer shall ensure that: (i) Customer Data is free from viruses, Trojans, worms or other harmful software or codes; (ii) Customer Data is in the agreed format; and (iii) that Customer Data cannot in any other way harm or adversely affect Supplier’s Software or the Service. Customer represents and warrants that it is solely responsible for Customer Data and the consequences of submitting, transmitting and using it via the Service, except if such consequences are a direct result of a wrongful or intentional act or omission by Supplier.

4.4. Customer shall take reasonable steps to prevent unauthorized access to the Service, including by protecting its passwords and other log-in information.

4.5. Customer shall not: (i) access the Service in order to build a competitive product or service, to build a product or service using similar ideas, features, functions, source code or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; (ii) share non-public Service features or content with any third party; (iii) disassemble, decompile, reverse engineer or otherwise try to discover the source code of the Software, or to create derivative works, compilations, or collective works thereof; or (iv) interfere with, damage or disrupt the Equipment Customer connects to the Service; any equipment or network on which the Service is run; any Software used in the provision of the Service; or any equipment, network or software owned or used by a third party; (v) remove or alter any copyright or other proprietary notice or legends appearing in the Service or Software; or (vi) perform or disclose any performance or vulnerability testing of the Service without Supplier’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Service.

4.6. The Customer is liable for and shall indemnify and hold harmless Supplier from and against, any infringement by Customer’s Data of any third party right or any other non-compliance with applicable law.

5. Implementation of the Service

5.1. Supplier is responsible for making the Service available to the Customer from and including the agreed start date. The Supplier shall, in good time, have provided the instructions that are necessary for the Customer to start using the Service from the agreed start date.

5.2. The Parties may conclude a separate agreement regarding the Supplier’s obligations in respect of the startup of Service. Unless otherwise agreed in the Agreement, Customer is responsible for acquiring and installing the Equipment needed for the Service.

5.3. The Service shall be deemed available when the Customer can start using the Service from the Access Point.

6. Ownership and right to use

6.1. Ownership to the Service: Supplier retains all right, title, and interest in and to the Service, including, without limitation, all software used to provide the Service and all improvements, enhancements or modifications to the Service or Software. The Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components other than a limited right to use the Service in accordance herewith.

6.2. Right to use the Service: During the term of the Agreement, Customer may access and use the Service described in the Specification and pursuant to the terms of the Agreement and these Terms. The right to use the Service is non-exclusive and limited to Customer’s own business. Customer may allow its contractors to access and use the Service on behalf of Customer and is responsible for its User’s and contractor’s use of the Service and compliance with the Agreement.

6.3. Customer Data: In the relationship between Customer and Supplier, Customer is the holder of all rights pertaining to Customer’s Data.

6.4. Supplier’s use of Customer Data: Customer grants Supplier a non-exclusive, sub-licensable, royalty free, worldwide, perpetual and irrevocable license to access, process and otherwise use Customer’s Data for (i) for providing, maintaining, securing, supporting, improving, modifying and developing the Service; (ii) compiling aggregated statistics and reports for internal business purposes and/or marketing use; (iii) clarifying misuse or analyzing infringements, and (iv) developing and marketing new products and services.

6.5. Derivative Data: Supplier is the holder of all right, title and interest in and to any Derivative Data.

6.6. Feedback: Any ideas or suggestions for improving or otherwise modifying the Service and/or any other feedback that Customer or Users provide to Supplier (“Feedback”) may be freely used, exploited and profited from by Supplier for any purpose and in any manner without compensation to Customer or User. Customer hereby assigns to Supplier all right, title and interest to Feedback provided to Supplier.

7. Payment

7.1. For the use of the Service, Customer shall pay Supplier the fee set forth in the Agreement. All amounts due under the Agreement are exclusive of VAT and payable in the currency specified in the Agreement

7.2. Unless otherwise stipulated in the Agreement, fees are invoiced annually in advance. Supplier’s invoices are due within 30 days of the date of the invoice. In the event of late payment, penalty interest shall be paid in accordance with the Swedish Interest Act. In addition, the Supplier has the right to, without prior notice, cancel Customer’s access to the Services until full payment has been made.

7.3. Customer is responsible for paying all applicable sales, value-added or other taxes and all duties levied or imposed by any government authority by reason of Customer’s paid use of the Service under this Agreement, except for taxes based on vendor’s net income.

7.4. Unless an agreement to the contrary, all Fees will be increased annually on 1st January with three (3) percent or in accordance with the SBC published Labor Cost Index for officials (LCI tjm) provisional index, SNI 2007 Code J (Information and communication business), specifically the change from the preceding September to August, whichever is higher.

8. Technical support

8.1. If the Agreement states that it includes a Service Level Agreement (“SLA”), Customer is entitled to technical support by Supplier as specified in the applicable SLA.

8.2. If the Agreement does not include an SLA, Supplier provides email support or telephone support Business Days 08:00-17:00 Central European Time. “Business Day” means Monday – Friday excluding Swedish public holidays, for queries regarding the functionality of the Service. Any such support services provided to Customer are provided “as is” and on an “as available” basis” and any implementation thereof by Customer shall be made at Customer’s own risk and responsibility.

8.3. Unless otherwise specifically agreed in the Agreement, queries regarding installation, setting-up or administration of Equipemt and the like are not included in the Service.

9. Availability and Maintenance

9.1. During the term of the Agreement Supplier shall maintain the Service according to its internal maintenance plan. Supplier will make commercially reasonable efforts to provide continuous access to the Service 24 hours a day all year at the Access Point and to keep the Service operational. Customer’s access to, and use of, the Service may be suspended temporarily if requested by Customer. The Supplier may carry out planned measures that affect the availability of the Services, which is required for technical, maintenance, operational or safety reasons. The Supplier shall perform such measures promptly and in a manner that limits the disruption. If the planned measure is estimated to affect the availability of the Service for more than 60 minutes, the Supplier undertakes to notify the Customer within a reasonable period before such action and, if possible, to plan such action to be carried out outside of normal working hours.

9.2. Further, the Supplier may at any time and without further notice, cut off, suspend or limit the access to the Service if urgent maintenance is required or in order to protect the Service from unauthorized attacks or otherwise harm or risk, or because of a reason outside Supplier’s control, including (a) force majeure events, (b) because of power outages, Internet service provider or public telecommunications network failures or delays, (c) a fault or failure of Customer’s or a User’s computer systems or networks; or (d) any breach by Customer or a User of the Agreement. Nevertheless, the Supplier shall, to the extent possible, inform the Customer when such interruptions may occur. Supplier shall carry out any required actions promptly and in a manner that limits the inconvenience to Customer.

9.3. The Customer is not entitled to compensation resulting from such limitation or lack of access as described in this Section 9.

9.4. Supplier is responsible for development of the Service and reserves the right to decide, in its own discretion, what improvements and technical adjustments to make. Supplier is entitled to modify and update, temporarily or permanently, the Service or its functions and features at any time, or the method of providing it, provided that such changes may evidently not affect the Customer negatively. The Supplier may, even if it would cause inconvenience to the Customer, implement changes in the Services due to security related purposes.

10. Confidentiality

10.1. Each Party undertakes not to disclose, without the consent of the other Party, to a third party, during the term of the Agreement and for a period of three years thereafter, any information regarding the other Party’s business that may be considered a business or professional secret or which according to law is subject to a duty of confidentiality. Unless otherwise follows from law, Supplier’s pricing information and other information that a Party specifies as confidential shall always be considered confidential information.

10.2. The confidentiality obligation does not apply to information that (i) was publicly known; (ii) was already known to the Party, or otherwise lawfully in its possession, at the time of disclosure by the other Party; (iii) has been obtained lawfully from a third party; or (iv) must be disclosed by requirement of mandatory law, court order or any competent governmental or other regulatory authority or applicable regulations of any applicable stock exchange.

11. Security

11.1. Supplier applies a number of security measures in line with industry practice and will take any reasonable steps and precautions against security breaches to ensure the functionality of the Service and safekeeping of Data. Supplier shall comply with its internal security guidelines available on the Website or such other place as Supplier designates. Supplier reserves the right to make changes to the security regulations, subject to the terms regarding changes to the Agreement in Section 19.6.

12. Personal Data

12.1. Supplier will comply with the Privacy Policy applicable to the Service and applicable data protection laws.

12.2. Supplier is the data controller for personal data relating to Customer’s account, such as account credentials and contact and payment information and for any other personal data submitted by Customer or User when placing an order for or using the Service, or contained in Data. Supplier will process such personal data in accordance with the Privacy Policy. Customer accepts and agrees that its and Users’ use of the Service constitute acceptance of the collection, processing and sharing of the personal data performed by Supplier in accordance with the Privacy Policy.

13. Infringement of Intellectual Property Rights

13.1. Supplier undertakes to defend or settle any claim or suit brought against Customer so far as it is based on an allegation that Customer’s use of the Service infringes any patent, copyright, trademark or other intellectual property right. Supplier shall also indemnify Customer for any costs or damages that Customer may become liable to pay because of a judgement or settlement. The obligation of Supplier only applies if (i) Customer notifies Supplier promptly in writing of the claim or suit, (ii) Customer cooperates with Supplier are provides reasonable information and assistance, and (iii) if Supplier is given the sole authority to defend, settle and negotiate such claim.

13.2. Where a third party alleges that Customer’s use of the Service infringes upon a third party’s rights, Supplier is entitled, at its own option and expense, to procure for Customer the right to continue using the Service, modify the Service so it becomes non-infringing, or terminate the Agreement with one month’s notice, in which case Customer is entitled to a deduction of the fee that corresponds to the reduction of the value of the Service as a result of the infringement. Other than as stated in this Section 13, Supplier is not liable to Customer for infringements of a third party’s intellectual property rights.

14. Liability for the Service

14.1. Supplier shall remedy Defects in the Service that are caused by faulty design or workmanship. Supplier shall, however, have no liability for any Defects that (i) are minor or insignificant for Customer’s use of the Service; (ii) are caused by circumstances for which Customer is responsible under the Agreement; (iii) are caused by circumstances outside the Supplier’s area of responsibility, such as failure of communications or circumstances, which relate to network and infrastructure or other products or services from third parties, which are procured directly from a third party by Customer; (iv) are caused by virus or other security interference, provided that Supplier has implemented security measures in accordance with professional standards; (v) result from Customer’s incorrect use of the Service or changes undertaken by Customer without Supplier’s written consent; (vi) are caused by Customer’s failure to follow instructions from Supplier or Customer’s breach of any of the provisions of the Agreement; or (vii) are caused by any circumstance referred to as Force Majeure.

14.2. Customer shall notify Supplier of the Defect in writing, including a description of the Defect and how it manifests itself, without undue delay and in any case not later than 14 days after the date Customer became aware of, or should have become aware of, the Defect.

14.3. Supplier’s remedy of a Defect shall be made within a reasonable time after Customer’s notification of such Defect. Supplier exclusively decides how and where to rectify a Defect in the Service, provided, however, that the Service always shall correspond to the Specification.

14.4. Should Supplier not rectify a Defect in the Service within a reasonable time, Customer may, by notice in writing to Supplier, specify a final period for Supplier’s rectification of the Service. Such notice shall be given at least 30 days before the expiry of such final time. If Supplier fails to remedy the Service within such final time period, Customer may terminate the Agreement and be entitled to a refund of those parts of the Fee paid to Supplier under the Agreement during the time period that the Defect was present. Customer’s right to terminate the Agreement and to receive a refund of the Fee, shall constitute full and final compensation for Supplier’s liability for all and any Defects and the consequences thereof and Supplier hereby disclaims all other warranties, express or implied, in respect of the Service.

15. Limitation of liability

15.1. Supplier’s liability to Customer in relation to the Agreement shall be limited to 15 % of the Fee for any one incident or series of related incidents, and to 25 % of the Fee for all incidents in any period of 12 months; provided however that Supplier’s aggregate liability for any and all incidents during the term of the Agreement and thereafter shall not exceed such part of the Fee as has actually been paid by Customer to Supplier. The limitation of liability in this Section 15 does not apply in the event of intent or gross negligence, breach of confidentiality obligation or infringement of intellectual property rights.

15.2. Supplier is not liable to Customer for loss of data, profits, business, or anticipated savings, or for any indirect or consequential loss or damage.

15.3. If either Party becomes aware of any breach of this Agreement which may result in a claim (including but not limited to claim for damages or specific performance), it shall inform the other Party within ninety (90) days of the date on which it became aware of such breach. If that Party does not inform the other Party of such breach within the 12 stipulated period, it shall lose its right to claim compensation or assert any other remedy for that breach.

16. Termination

16.1. The term of the Agreement, extension period and notice period shall be specified in the Agreement. Unless otherwise agreed, either Party may terminate the Agreement no later than 90 days before the expiry of the current Agreement term. If the Agreement is not terminated, it shall automatically be renewed with twelve (12) months at a time with a three (3) months’ notice period for each such additional term. Termination of the Agreement shall be made in writing.

16.2. Each Party shall have the right to terminate this Agreement by giving the other Party not less than thirty (30) days’ notice in writing: (i) If the other Party suspends its payments, decides on, whether voluntary or involuntary, liquidation, applies to reorganize the company or bankruptcy (or if another part applies for the Party’s bankruptcy) or otherwise reasonably can be assumed to be insolvent; (ii) If any payment obligation according to the Agreement becomes overdue by more than forty five (45) days; or (iii) if the other Party is otherwise in material breach of this Agreement and has failed to remedy such breach within forty five (45) days after the receipt of a written notice giving particulars of the breach and requiring it to be remedied.

17. Winding up of the Service

17.1. Upon termination of the Agreement, the Customer shall immediately cease all use of the Service and pay any outstanding payments.

17.2. Notwithstanding anything to the contrary herein, Section 4 (Customer’s responsibilities), Section 10 (Confidentiality) and 20 (Governing Law and Disputes) as well as any other provision obviously intended so, shall survive the cancellation, expiration or termination of this Agreement.

18. Force Majeure

18.1. Either Party is relieved from liability for a failure to perform its obligations due to any circumstances beyond its control, which substantially impedes, delays or aggravates any obligation to be fulfilled under the Agreement, such as for example changes in laws and regulations or in the interpretation thereof, acts of authorities, delays related to custom clearances or requirements, war, acts of war, labor disputes, blockades, major accidents, breakdowns or currency restrictions.

18.2. The Party desiring to invoke an event of force majeure shall give immediate notice to the other Party of the commencement and the cessation on such event of force majeure, failing which the Party shall not be discharged from liability for any non-performance caused by such event of force majeure.

18.3. Both Parties shall make all reasonable efforts to prevent and reduce the effect of any non-performance of the Agreement caused by an event of force majeure.

19. Miscellaneous

19.1. Customer may not transfer or assign, in whole or in part, its rights or obligations under this Agreement without the prior written consent of the Supplier. Supplier shall be entitled to assign this Agreement to a third party provided that the rights of the Customer under the Agreement is not adversely affected. The Supplier shall notwithstanding the aforementioned always be entitled to transfer or pledge the right to receive payment of Fees or parts thereof.

19.2. No failure to exercise, or delay in exercising, any right or remedy provided under this Agreement or by Applicable Law constitutes a waiver of such right or remedy or shall prevent any future exercise in whole or in part thereof, excluding for the avoidance of doubt failure to notify of claim according to Section 15.3.

19.3. Supplier has the right to reference Customer’s company name and logo in any materials, presentations or media advertising or promoting Customer as a Service customer.

19.4. If any provision of the Agreement is found to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.

19.5. The Agreement constitutes the complete agreement of the parties for the Service and supersedes and merges all prior writings, negotiations, and discussions with respect to its subject matter.

19.6. No modifications, amendments or alterations of the Agreement will be valid or binding for a Party, except if made in writing and signed on behalf of such Party.

19.7. A notice or other communication shall be deemed received by the recipient: i) if delivered by hand or sent by courier (with delivery receipt obtained), on the day of delivery thereof if delivered prior to 17:00 CET if such day is a Business Day, and otherwise at 09:00 CET on the next Business Day; or ii) if sent by email, on the day of dispatch if sent prior to 17:00 CET on a Business Day and otherwise at 09:00 CET on the next Business Day, provided that the sender does not receive an email delivery failure message.

20. Governing law and disputes

20.1. These Terms and any disputes related to these Terms or to the purchase and use of the Products are subject to Swedish law.

20.2. Any dispute, controversy or claim arising out of or in connection with these Terms or the breach, termination, or invalidity thereof, shall be settled in arbitration under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitration proceedings shall be English.

20.3. Notwithstanding the foregoing, Supplier may take any legal action necessary at any competent court for collection of any payment due to Supplier hereunder. The Parties do hereby submit to the jurisdiction of such court for such purpose.

20.4. Each Party undertakes to ensure that all arbitral proceedings conducted in accordance with the Agreement shall be kept strictly confidential. This undertaking shall cover, inter alia, that arbitral proceedings have been initiated, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal.