This customer agreement (“Agreement“) is entered into by and between:
Indivd AB, company reg.no 559169-7072, Bankgatan 8, 852 31, Sundsvall (“Indivd“).
Customer, who’s name, company reg. no and address is stated in the Order Form (“Customer“).
(each party referred to as a “Party“, or collectively as the “Parties“).
1. BACKGROUND AND PURPOSE
A. Indivd has developed and delivers a cloud-based service package that enables, through the use of personal data provided by customers, the collection and mapping of Big Behavioral Data completely anonymously.
B. Customer wishes to use Indivd’s offering and make use of the insights generated there through.
C. This Agreement governs the general terms and conditions for Customer’s access to and use of the Services as ordered in the applicable Order Form (hereinafter referred to as the “Services“).
D. The Parties therefore, intending to be legally bound, hereby agree as follows.
2. BACKGROUND AND PURPOSE
2.1 Indivd hereby agrees, subject to Customers timely payment according to Section 5, to make the Services available for Customer, on a non-exclusive and non-transferable basis:
(a) at the location and premises stated in the Order Form (the “Premises“)
(b) for the term stated in the Order Form (the “Term“)
(c) in accordance with the Services description attached hereto as Annex 1.
2.2 Customer acknowledges that some of the Services are dependent on hardware (i.e. a server) to function. Customer can choose to either use its existing hardware (irrespective of cloud based or on-site), lease hardware via a third party provider, or use server hosting. Indivd can arrange for Customer to get in touch with Indivd’s preferred third party provider for this purpose. Any agreement on hardware may be, dependant on the chosen Services, separately agreed and entered into between Customer and the thirty party provider. The hardware is hereinafter referred to as the “Hardware(s)”. Indivd is not, dependant on the chosen Services, responsible for providing the Hardware(s) or any issues related to the Hardware(s). Customer also acknowledges, dependant on the chosen Services, that the Hardware(s) will need to have certain safety measures and encryption activated in order to work properly with the Service and for this purpose Indivd will provide safety guidelines. For the avoidance of doubt, as between Indivd and Customer, Customer is the owner of/in control of the Hardware(s) if they choose to use its existing hardware (irrespective of cloud based or on-site) or lease hardware via a third party provider.
2.3 Customer’s right to use the Services is limited to the Premises and Term.
3. INDIVD’S UNDERTAKINGS
3.1 Indivd shall provide the Services at the agreed dates and with the functions described in Annex 1.
3.2 Indivd undertakes that the Services shall meet the services levels specified in the applicable SLA(s) attached hereto as Annex 2. Apart from that, the Services are available in existing condition. Customer’s right and ability to use the Services under this Agreement is not conditioned on or dependent on any particular version of the Services or function at any particular time, but provides access to and right to use the Services as provided by Indivd at any given time.
3.3 Indivd reserves the right, in its sole discretion, to from time to time make improvements, additions and modifications, or to remove functionalities, or to correct any errors or defects in the Services. Indivd disclaims any liability arising from such measures. Such updates should be made at no cost to Customer. Such updates may require that Customer approves that Indivd from time to time is granted access to the Premises during the Term or that Indivd remotely sends updates to the Hardware(s).
3.4 Indivd is not responsible for ensuring that the Customer’s own Internet access, connections, nets, IT security and firewalls work properly. Indivd is not responsible for any interruptions or errors in information arising from the transmission over the Internet.
3.5 Indivd is not responsible for ensuring that the Customer’s Hardware(s) or people counter hardware, other needed system works properly or has adequate safety and security measures in place, dependant on the chosen Services.
4. CUSTOMER’S UNDERTAKINGS
4.1 In order to set up the Services, Customer shall allow Indivd, or the other personnel that Indivd engages, to place and install necessary installations which, dependant on the chosen Services, may include the Hardware(s). Customer shall also ensure that other appropriate preparations are made prior to the installation. Customer shall also allow Indivd to access the Premises during the Term to make necessary updates to the Services, or allow that Indivd remotely sends updates to the Hardware(s).
4.2 Customer is responsible for ensuring that its Internet access, connections, nets, IT security and firewalls work properly. Customer acknowledges and agrees that the Services is dependent on Internet access to function, and that Indivd is not responsible for any interruptions and errors in information arising from faulty Internet access.
4.3 Customer is, dependant on the chosen Services, responsible for ensuring that the Hardware(s) and system the people counters need to use works properly and that adequate safety and security measures are in place. Customer acknowledges and agrees that Indivd is not responsible for any of these, including but not limited to the processing of the stream of personal between the Customer’s local network and the server.
4.4 Customer agrees to not copy, modify, transfer, reverse engineer or reverse compile the Services or any part thereof (or any Intellectual Property Rights of Indivd), nor shall Customer prepare any own derivative works incorporating the Services or part thereof or attempt to create a substitute or similar services through use of, or access to, the Services.
4.5 The Customer further agrees and accepts that all information the Customer receives regarding the Services is valuable information belonging to Indivd and, as such, shall be treated as confidential information by the Customer in accordance with Section 9 below.
4.6 Customer will have the ability to access all its accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available and associated with its accounts and, dependant on the chosen Services, the Hardware(s).
4.7 Customer acknowledges that it can pass on the rights within its organization to access and administer its account. Customer is thus responsible for: (a) maintaining the confidentiality of the password and accounts); (b) designating those individuals who are authorized to access the accounts ; and (c) ensuring that all activities that occur in connection with the accounts comply with this Agreement.
4.8 Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Indivd of any unauthorized use of, or access to, the Services of which it becomes aware.
4.9 Unless Indivd specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not,: (a) sell, resell, or lease the functional equivalent to the Services to a third party (b) use the Services for high risk activities such as controlling or monitoring employee behaviour or children; or (c) use the Services on behalf of or for the benefit of any entity or person who is prohibited from using the Services by Swedish laws or regulations.
4.10 Customer have a duty to provide information for the processing (first and second layer) according to GDPR. For more information Indivd read our guide regarding your duty to inform your visitors alt. Internet search on the duty of disclosure in Articles 13-14 of the GDPR.
4.11 Insofar as applicable, Customer is responsible for any changes in the environment at the Premises, with respect to for example, remodeling, reconstruction, changed placement of hardware for people counting etc can affect the functionality/statistics of the Services.
5. RECOMMENDATIONS AND GUIDELINES
5.1 Indivd will provide Customer with Safety Guidelines that it is recommended that Customer follows, with respect to amongst other;
(a) encrypting the stream of personal between the Customer’s hardware for people counting and the server to avoid unauthorized use of the stream of personal data,
(b) securing the IT systems on the Customer’s server to avoid manipulation of the software and data leakage
(c) recommended security levels on the Customer’s IT environment with respect to amongst other firewalls and logging and analyzing potential threats and risk, to avoid unauthorized access of incoming and outgoing traffic between the server and Individ’s cloud.
5.2 Customer is advised that all use of the Services by Customer shall comply with Indivd’s Ethics policy.
6. PAYMENT AND INVOICING
6.1 As compensation for the Services offered under this Agreement, Customer shall pay the applicable Fees to Indivd based on the Customer’s selection of billing option as shown below and as specified in the Order Form. Insofar as applicable, Indivds measurement tools will be used to confirm Customer’s usage of the Services.
6.2 Customer may select one of the following billing options. All billing options may not be available to all customers.
(a) Monthly plan: Customer will pay for the Services on a monthly basis. Indivd will provide Customer with the monthly rate for the Services in the Order Form upon Customer’s order of the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees. Indivd will bill Customer: (i) Fees based upon Customer’s daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services. With the monthly plan Customer is not committed to purchase the Services for a pre-defined term, and can choose to terminate the use of the Service at any time in accordance with Section 13.
(b) Long-term plan: Customer is bound to pay the applicable Fee for the Service during the time period specified in the Order Form, either 12, 24, 36, 48 or 60 months. Indivd will bill Customer according to the terms specified in the Order Form.
6.3 Payment shall be made by Customer no later than 30 days from receipt of invoice. In case of overdue payments, Customer is entitled to claim interest in accordance with the Interest Act (Sw: Räntelagen). All payments due are in SEK unless otherwise indicated on the Order Form or invoice.
6.4 Customer may select to have Purchase Order:
(a) If Customer wants a Purchase Order number on its invoice, Customer will inform Indivd and issue a Purchase Order to Indivd. If Customer requires a Purchase Order, and fails to provide the Purchase Order to Indivd, then Indivd will not be obligated to provide the Services until the Purchase Order has been received by Indivd. Any terms and conditions on a Purchase Order do not apply to this Agreement and are null and void.
(b) If Customer does not require a Purchase Order number to be included on the invoice, Customer will provide Indivd a waiver of the Purchase Order requirement, which may be an email to this effect. If Customer waives the Purchase Order requirement, then: (a) Indivd will invoice Customer without a Purchase Order; and (b) Customer agrees to pay invoices without a Purchase Order.
7. SUSPENSION OF THE SERVICES
7.1 If Customer is on a monthly billing plan, and Customer fails to pay the applicable Fee on time, Indivd is entitled to suspend the Services for non-payment. In such event, Indivd will also stop charging Customer additional monthly Fees during Customer’s suspension for non-payment.
7.2 If Customer is on a long-term plan, and Customer fails to pay the applicable Fee on time, Indivd is entitled to suspend the Services for non-payment. In such event, Indivd will continue to charge Customer the applicable Fee on a monthly basis during Customer’s suspension for non-payment and Customer must pay all such outstanding Fees in order to resume its use of the Services. If Customer remains suspended for non-payment for more than sixty days, Indivd may terminate Customer for cause pursuant to Section 13.
7.3 In addition to and regardless of the above, Indivd also has the right to suspend the Services if Indivd becomes aware of Customer’s violation of this Agreement, or if there is an Emergency Security Issue.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Each Party shall remain the owner of all intellectual property rights owned by it, or prior to entering into this Agreement, or created outside the scope hereunder. Nothing in this Agreement shall be considered as transfer or granted license to such intellectual property rights, unless specifically stated.
In respect of the Services and the Service platform
8.2 All intellectual property rights, title and interest in and to the Services, the Services platform and the anonymization and analysing method contained therein, including amongst other inventions (whether or not patentable), copyright, designs, trademarks, and knowhow, for example by way of documentation, concept, code and logic, including any updates or upgrades, copies or parts thereof, shall at all times belong to and remain the property of Indivd (the “Indivd Intellectual Property Rights“. Nothing in this Agreement shall be considered as transfer or granted license to such Indivd Intellectual Property Rights, unless specifically stated.
8.3 Customer agrees not to challenge any Indivd Intellectual Property Rights in and to the Services which are subject to this Agreement.
8.4 Customer undertakes to notify Indivd immediately if Customer becomes aware of any unauthorized use of the Services or of any potential infringements of Indivd Intellectual Property Rights.
In respect of data and insights generated through the use of the Services
8.5 The Services will comprise collection and anonymization of personal data from hardware using people counting into anonymized data and Group ID, regarding for example (but not limited to) peoples’ purchasing behaviour and how people move around in retail environments and make purchases (the “Data“). The Data shall at all times belong to and remain the property of Indivd.
8.6 Other non-anonymized data belongs to Customer.
8.7 Any analysis, statistics and/or insights made, created or otherwise produced from the Data (the “Insights“) and the intellectual property rights contained in the Insights, shall be owned by Indivd. For the avoidance of doubt, insofar as any of Customer’s intellectual property rights form part of the Insights, for example in the form of Customer’s trademarks and logos, they shall remain vested in Customer, and Indivd resumes no rights whatsoever to Customer’s intellectual property rights.
8.8 Indivd hereby grants to Customer a non-exclusive right to use the Insights originating from Customers Premises within Customers’ business operations. Customers license hereunder is perpetual, royalty-free, and includes a right to develop and modify the Insights as Customer sees fit.
8.9 Customer acknowledges and agrees to contribute to anonymous data to an aggregate data set to enable features like benchmarking and publications that can help interpret and understand data trends. All identifiable information about Customer or its organization will be removed and combined with other anonymous data before it is shared with others for such benchmarking purposes. Apart from this, Customer acknowledges and agrees that Customer is not entitled to obtain Insights originating from other customers.
8.10 Customer may state publicly that it is an Indivd customer and display Indivd’s Brand Features. Customer also agrees that Indivd may (i) orally state that Customer is an Individ customer and (ii) include Customer’s name or Brand Features in a list of Indivds customers in Indivds online or offline promotional materials.
9.1 The Parties undertake during the term of this Agreement and thereafter not to disclose to third parties Confidential Information, as defined below, received from the other Party under this Agreement and not to use such Confidential Information for any other purpose than anticipated in this Agreement.
9.2 For the purpose of this Agreement “Confidential Information” shall mean any and all information exchanged between the Parties relating to the Parties, their operations, and the use of the Services – including but not limited to technical, practical or commercial information, save as provided under a-e below:
a) Information, which is known or which will become known in full detail to the public other than by breach of the obligations herein contained.
b) Information, which a Party can show was in its possession before receiving it from the other Party.
c) Information, which a Party has received or will receive from a third party without restraints as to the disclosure thereof.
d) Information, which is authorized in writing by the disclosing Party to be disclosed without restriction.
e) Information, which a Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other market place.
9.3 Notwithstanding the foregoing, the Parties understand and agree that either Party may, to the extent it deems necessary or appropriate, disclose Confidential Information to potential licensees or investors. Each Party undertakes to make such disclosures subject to a confidentiality agreement.
10. PERSONAL DATA
10.1 Each Party shall comply with applicable data protection laws.
10.2 Where Individ acts as a data processor and processes personal data on behalf of the Customer, such processing shall be regulated by a data processing agreement. Such an agreement is enclosed hereto as Annex 3.
11. FORCE MAJEURE
11.1 Neither party shall be liable for any costs or damages due to delay or non-performance under this Agreement arising out of any cause or event beyond such party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other party as a result of power or other mechanical failure, computer virus, natural disaster, governmental action, or communication disruption.
12. LIMITATION OF LIABILITY
12.1 Indivd’s total aggregate liability under this Agreement, both in relation to Customer and in relation to the Customer’s use of the Services, will in no circumstances whatsoever exceed ten (10) per cent of the applicable Fees paid by Customer to Indivd for the Service during the year preceding the claim at hand.
12.2 Unless a damage has been caused by Individ’s gross negligence or intent, Indivd shall under no circumstance be obliged to compensate Customer for indirect damages or loss of data.
13. LIMITATION OF LIABILITY
13.1 This Agreement becomes effective on the date of signing this Agreement by both Parties. It will remain in force for the period stated in the applicable Order Form (the “Initial Period“) and will thereafter, depending on the applicable billing option, be renewed as follows:
(a) monthly plan: with one month at a time, unless terminated by Customer by notifying Indivd before the end of the then-current month.
(b) long-term plan: with twelve (12) months at a time, unless terminated by either Party by giving six (6) month’s written notice prior to the end of the Initial Period or a renewal period.
13.2 Each Party may terminate this Agreement with immediate effect if the other Party has breached any provisions of this Agreement and fails to rectify such breach within 30 days from written notice about the breach from the non-breaching Party, or in the event that the other Party is placed into insolvent liquidation, enters into composition negotiations, or is otherwise insolvent.
13.3 Upon termination of this Agreement, for whatever reason, Indivd shall close down the Services and make it unavailable for Customer without undue delay. Customer shall return any products, property or documentation belonging to Indivd, as well as cease all use of the Services immediately.
14.1 Indivd has the right to perform audits at the Customer’s Premises or remotely once a year. Indivd will provide ten days’ notice before any such audit is conducted.
15. ENTIRE AGREEMENT; MODIFICATION; WAIVER; ASSIGNMENT
15.1 This Agreement contains the entire agreement between the Parties in connection with the subject matter of this Agreement and supersedes any previous written or oral agreement between the Parties on the matters dealt with in this Agreement.
15.2 This Agreement may not be amended except by written document executed by the Parties. A waiver of any term, condition or provision in this Agreement by either Party shall be valid only if given in writing and only in the instance for which given and shall not be deemed continuing; further, any such waiver shall not be construed as a waiver of any other provision of this Agreement.
15.3 Failure to exercise or assert any right or remedy shall not constitute a waiver of such right or remedy or of the same right or remedy in another case or of any other right or remedy.
15.4 A Party may not assign this Agreement or any rights or obligations under it without the prior written consent of the other Party.
16.1 If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or in degree will remain in full force and effect to the extent not held invalid or unenforceable.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1 This Agreement will be governed by Swedish law.
17.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the relevant Swedish court(s). Stockholm district court shall be the court of first instance.