Last update: 10 October 2018
Service Agreement between Qinematic and Customers
Table of contents
Orders for subscriptions and grant of right to use the services
Obligations of the Software service provider
Customer responsibilities, usage and content of the service.
Restriction of access to the services
Third party products or services
Fees and payment
Proprietary rights and licences
Warranties and disclaimers
Limitation of liability
Term and termination
Governing Law and Disputes
This Service Agreement (the "Agreement") is entered into by and between:
1) Qinematic AB, a limited liability company incorporated under the laws of Sweden with corporate registration number 556890-1903, with its registered address at Högsätravägen 17, 18158 Lidingö, Sweden (the "Software Service Provider"), and
2) the individual and/or organization using the Service (the "Customer")
Each of the Service Provider and the Customer is referred to as a “Party” and together as the “Parties”.
(A) The Software Service Provider is active in the area of biomechanics and develops and sells installed software and software as a service to businesses and organizations (the ‘’Health Service provider’’) that are interested in providing health services to their customers or their employees.
(B) The software as a service solution offered by the Software Service Provider consists of components enabling the capturing of 3D images of a person, storing of the images, measurement, exporting metrics, giving feedback and reporting the metrics via the web and/or a computer device.
(C) The Customer has expressed a desire to use the Software Service Provider’s services in its business.
(D) In order to regulate the above, the Parties have entered into this Service Agreement on the terms and conditions set out below.
1.1 “Agreement” means this Service Agreement including any schedules hereto.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Beta Services” means services or functionality that may be offered from time to time by the Software Service Provider for the Customer to try at no additional charge, clearly designated as “test” or “beta” or by a similar description.
1.4 “Business Day” means a day when banks are generally open for business in Sweden other than for internet banking only, generally Monday to Friday with the exception of bank holidays.
1.5 “Contact Person” means a person appointed by the Customer to manage the contact with the Software Service provider.
1.6 “Customer” means the Customer named above and its Affiliates, that Customer has instructed the Software Service Provider shall have access to the ordered Services on the terms and conditions set forth in the Agreement.
1.7 “Customer Data” means any data and information submitted or processed by or for Customer in relation to the Services.
1.8 “Licence Agreement” means the separate agreement concluded between the Software Service provider and the Customer regarding the Customer’s use of the Software Service Provider’s proprietary software required to use the Services.
1.9 “Malicious Code” means code, files, agents, programs or similar that are intended to do harm including by way of example e.g. viruses and Trojan horses.
1.10 “Order” means an order for a Subscription under an Order Form issued by the Customer or an Affiliate to the Software Service Provider, or acceptance of an Offer made by the Software Service Provider.
1.11 “Order Form” means an application form, specifying the desired purchase items, or written acceptance of an Offer made by the Software Service Provider. By submitting an Order Form to the Software Service Provider, any Affiliate undertakes to be bound by the terms and conditions of the Agreement as if it was an original party hereto.
1.12 “Services” means the different components and functionality of the Software Service Provider’s offering for software as a service for automated screening of posture, balance and movement control, as made accessible to authorised Users via the Qinematic Note webapp, and as updated from time to time.
1.13 “Service Specification” means the description of the different components included in the Services to be delivered to the Customer under the Agreement and the Order Forms submitted to the Software Service Provider from time to time, as set forth in the License Agreement and/or the Service Agreement.
1.14 “Service Fee” means the agreed fees for the ordered Services payable by the Customer, as set out in a price schedule set by the Software Service Provider or authorised reseller) and in accordance with applicable Order Forms.
1.15 “Subscription” means a license to use the ordered Services in accordance with this Agreement and the Order Forms submitted to the Software Service Provider.
1.16 “Territory” shall mean the geographical region that the Customer has legal rights to implement the service and/or as stated in the License Agreement and/or the Service Agreement..
1.17 “Third-Party Products” means hardware and software products and tools offered by third parties which might be used by the Customer in connection with the Services.
1.18 “User” means an individual who is authorized by Customer to use the Services for whom Customer has ordered the Services and to whom the Customer has supplied a user id and a password. Users may include for example employees of the Customer.
1.19 “User guides” means Software Service Provider’s user guidelines in relation to the Services, as provided by the Software Service Provider.
2. Orders for subscriptions and grant of right to use the services
2.1 The Customer may during the term of the Agreement request one or several Subscriptions to the Services by the issuance of separate Order Forms. An Order is not binding upon the Software Service Provider until its acceptance of any compliant Order Form. The Software Service Provider shall confirm its acceptance of any compliant Order Form within three (3) Business Days of receipt thereof. Where the Software Service Provider deems an Order Form to be non-compliant with this Agreement, e.g. lacking any required information, it shall inform Customer hereof by notice in writing within three (3) Business Days from receipt of the Order Form. Where no such notice is given, the Order Form shall be deemed to be accepted by the Software Service Provider.
2.2 The Customer hereby instructs the Software Service Provider to accept Order Forms also from its named Affiliates as communicated to the Software Service Provider from time to time in writing. The Software Service Provider shall deliver the ordered Services to such Affiliates, and the Customer guarantees the due fulfilment of such Affiliates of the obligations set forth in the Agreement, including payment due for delivered Services.
2.3 Subject to the Software Service Provider’s acceptance of an Order Form, the Customer is granted a non-exclusive, non-transferable, limited license, within the Territory, to access and use the ordered Services within the Customer’s business during the Subscription terms (as set forth in each Order Form respectively) and the term of the Agreement.
2.4 Notwithstanding the above, the Software Service Provider’s obligation to provide the ordered Services to Customer and the Customer’s right to use the Services ordered as set forth in section 2.3 is conditional upon (i) the existence of a valid separate Licence Agreement between the Customer and the Software Service Provider, and (ii) Customer’s fulfilment at all times of its obligations under the Agreement and the License Agreement.
2.5 The Services may only be used by the number of Users for which the Customer has paid the Service Fee and in accordance with the other terms and conditions of the Agreement and each applicable Order Form.
2.6 The Services may be subject also to other usage limits including quantities specified in applicable Order Forms such as number of tests to be carried out by use of the Services or number of tested persons that is included in a Subscription. .1 Subject to the due fulfilment at all times of the Licensee's obligations under this Agreement, the License Agreement and the Service Agreement (where applicable), the Licensee and its Affiliates is hereby granted a non-exclusive, non-transferable, license to use the Software during the Term within the Territory on the terms and conditions set out in this Agreement and the License Agreement. The right to use the Software is granted in relation to the number of Users and subject to the limitations set forth in the Price Schedule (specified in the separate the License Agreement) and each subsequent order for additional licenses confirmed in writing to the Licensee.
3. Obligations of the Software Service Provider
3.1 The Software Service Provider will:
(a) make the Services available to Customer pursuant to this Agreement, and each Order Form accepted by the Software Service Provider;
(b) make the Services available materially in accordance with the Service Specification; and
(c) ensure that the Services are in accordance with applicable laws and government regulations (subject to the Services being used according to the Agreement and the applicable User guides).
3.2 Notwithstanding what is set forth in section 3.1, the Software Service Provider withholds the right to, at the sole discretion of the Software Service Provider, amend the Services at any time, always provided that the functionality offered via the Services is not materially decreased or that such change is otherwise reasonably to the detriment of the Customer. The most recent description of the Service is always available at www.qinematic.com.
4. Customer responsibilities, usage and content of the service
4.1 The Customer will:
(a) be responsible and liable for all Users’ compliance with this Agreement;
(b) be responsible for the legality of all Customer Data and the means by which Customer acquired Customer Data;
(c) use the Services only in accordance with this Agreement, the applicable Order Forms, the User guides and applicable laws and government regulations;
(d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify the Software Service Provider promptly of any such unauthorized use;
(e) not make any Services available to anyone other than the Users in accordance with this Agreement and the applicable Order Forms, lease, sublicense, rent, distribute the Services or use the Services to the benefit of others;
(f) not permit direct or indirect access to or use the Services in a way that circumvents a contractual usage limit;
(g) not use the Service to store or transmit Malicious Code;
(h) not reverse engineer the Services or use the Services to access the Software Service Provider’s intellectual property (save for as permitted under the Agreement or mandatory law)
4.2 The Customer shall appoint a Contact Person, with the agreed level of competence, who shall be responsible for, amongst other things, managing the contacts with the Software Service Provider. The Customer shall provide the Software Service Provider with contact details for the Contact Person.
5. Restriction of access to the services
5.1 In the event the provision of the Services causes damages or risk of damages for the Software Service Provider or customers of the Software Service Provider, e.g. in the event of a denial of service-attack or introduction of Malicious Code, the Software Service Provider shall be free to (without any obligation to compensate the Customer) restrict the Customer’s access to the Service. Service Provider will notify the Contact Person promptly of any such restrictions and shall only undertake the measures as justified by the circumstances in each case.
6. Third party products or services
6.1 To use the Services the Customer might be dependent of Third Party Products.
6.2 Customer acknowledges and accepts that the Software Service Provider does not warrant the availability or functionality of such Third Party Products and assumes no liability for the suitability of Third Party Products for the purposes of accessing and using the Services.
6.3 The functionality of the Services is dependent on that the Customer has an adequate internet connection and it is the sole responsibility of the Customer to ensure it holds proper internet connection for the proper functionality of the Services.
6.4 The Software Service Provider may however from time to time, without any liability whatsoever, recommend Third Party Products and services which the Software Service Provider deems suitable to be used in connection with the Services.
7. Fees and payment
7.1 Customer will pay the Service Fees for the ordered Subscriptions of the Services in accordance with applicable Order Forms and price list. Quantities purchased cannot be decreased during the relevant Subscription term. Paid Service Fees are non-refundable.
7.2 The Service Fees are stated exclusive of value-added tax.
7.3 Save for any fees that are to be paid upfront (as set forth in the Price Schedule), Service Fee shall be payable in arrears against invoice for ordered Services and with payment terms thirty (30) days from the date of the invoice. The Software Service Provider reserves the right to charge a service charge (at the current price list) for the invoicing to cover its administrative costs in relation thereto.
7.4 In case of late payment, the Customer shall pay late payment interest on any outstanding amount in accordance with the Swedish Interest Act. The Software Service provider shall, upon written notice to the declared Contact Person/Customer, be entitled to discontinue Customers provision of the Services until any outstanding amounts have been paid in full.
7.5 New functionality introduced in the Services by the Software Service Provider may be offered to Customer from time to time as an “add-on” at a separate cost agreed separately between the Parties.
The Software Service Provider will provide support and related services as described in the Support Service Addendum, made available at http://www.qinematic.com which is hereby incorporated by reference, some of which are free of charge and some of which are optional and charged for.
9. Proprietary rights and licences
9.1 Subject to the limited rights granted hereunder Software Service Provider reserves all right and title to the Services including any intellectual property rights related thereto. No rights are granted to Customer other than as expressly set forth herein.
9.3 Customer grants to Software Service Provider a worldwide licence to host, copy, transmit and display Customer Data as necessary for Software Service Provider to provide the Services in accordance with the Agreement.
10. Personal data
10.1 The Parties acknowledge that Customer Data will include personal data to be processed within the Customer’s use of the Services and that the Customer is the personal data controller with respect to such personal data. The Software Service Provider will maintain administrative and technical safeguards for the protection of the security, confidentiality and integrity of such personal data and only process said data on behalf of the Customer and according to the data processing addendum (the “Data Processing Addendum”) made available at https://www.qinematic.com which is hereby incorporated by reference and which shall apply to such processing.
11.1 Each Party undertakes not to disclose to any third party without the consent of the other Party any information received from the other Party, including its business, which can reasonably be deemed to be of a confidential nature, including trade secrets and information which is covered by any statutory duty of secrecy. Information stated by one of the Parties to be confidential shall always be deemed to constitute confidential information.
11.2 The Parties' confidentiality obligations under this Section 11 shall not apply to trade secrets or any other confidential information which the receiving Party can demonstrate (i) is already known when received, (ii) is or has become public knowledge other than through breach of this Agreement, (iii) is received from a third-party who lawfully acquired it and who is under no obligation restricting its disclosure, or (iv) is to be made publicly available due to a court order, a decision by a public body or as otherwise required by mandatory law.
11.3 Each Party agrees to impose on its employees and consultants, in an appropriate manner, the above obligations of confidentiality in this Section 11. The Parties shall ensure that any subcontractors engaged, together with any of their employees involved in the assignment, sign a confidentiality undertaking containing equivalent provisions to the benefit of the other Party.
11.4 The Parties’ obligations under this Section 11 shall be valid during the term of this Agreement and continue for a period of three (3) years after expiration or termination of the Agreement, regardless of the reason therefor.
12. Warranties and disclaimers
12.1 The Software Service Provider warrants that during each Subscription term, it will not materially decrease the overall functionality or security of the Services.
12.2 Except as expressly provided herein, Software Service Provider makes no warranty of any kind whether express, implied statutory or otherwise and the Customer hereby, to the maximum extent permitted by applicable law, disclaims all implied warranties such as implied warranties for fitness for a particular purpose, merchantability, non-infringement, and the Service being free from errors and bugs.
12.3 Notwithstanding the above, Beta Services are provided “as is” and without warranty of any kind and the Service Provider disclaims all liability and indemnification obligations for any harm, damages or other liability caused by any third party hosting provider.
13.1 The Software Service Provider undertakes to defend the Customer where claims are made or actions are brought against the Customer for infringement of any third party’s intellectual property rights as a consequence of the use in the Territory of any result of the subscribed Services, provided that such use has been in accordance with the Software Service Provider’s instructions, and to indemnify the Customer from any cost or damages which the Customer may be obligated to pay in accordance with a judgment, arbitral award or settlement. Software Service Provider’s undertaking shall only apply provided that Service provider, without undue delay, is notified by the Customer in writing of the claim or action, and that Software Service Provider is given the sole right to control the defence against such action and decide on any agreement or settlement.
13.2 The Software Service Provider’s obligation to indemnify as set out herein only applies provided that Customer i) has used the Services only in accordance with the Service Provider’s instructions, ii) that the alleged infringement has not been caused by the use of the Services in combination with any other service or software where the infringement would have been avoided but for such combination and iii) that the infringement has not been caused by the Customer’s own information.
13.3 Any Third-Party Products which form part of the Services are subject to the third party’s terms and conditions regarding infringement.
13.4 The provisions of this Section 13 shall constitute the Software Service Provider’s sole and exclusive responsibility and Customer’s sole remedy in relation to infringements of third party intellectual property rights.
13.5 Customer shall indemnify the Software Service Provider against any and all claims, demands, suits or proceeding made or brought against Software Service Provider by a third party alleging that the Customer Data or Customer’s use of any Service in breach of this Agreement infringes such third party’s intellectual property rights or violates applicable law, and will indemnify the Software Service Provider from any cost or damages which the Software Service Provider may be obligated to pay in accordance with a judgment, arbitral award or settlement. Customer’s undertaking shall only apply provided that Customer, without undue delay, is notified by the Software Service Provider in writing of the claim or action, and that Customer is given the sole right to control the defence against such action and decide on any agreement or settlement.
14. Limitation of liability
14.1 Unless expressly provided herein each Party shall be liable for direct losses caused by negligence and the liability of either Party shall be limited to an amount corresponding to the total compensation paid by the Customer during the twelve (12) months immediately preceding the incident causing the loss.
14.2 Neither Party shall be liable for any loss of production, loss of data, loss of business or profit, loss of use, loss of goodwill, the obligation to compensate a third-party or any indirect or damages.
14.3 The above limitations shall not apply in the event of any loss which is caused by a Party’s gross negligence, intentional breach or breach of the confidentiality undertaking set out in this Agreement.
15. Term and termination
15.1 The Agreement commences on the date when both Parties have signed the Agreement and continues until all Subscriptions hereunder have expired or have been terminated.
15.2 The term of each Subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form Subscriptions will automatically be renewed for additional periods equal to the expiring Subscription term, unless either Party gives the other Party notice of non-renewal at least 90 days before the end of the relevant Subscription term. Unless the Software Service Provider has notified the Customer/Contact Person within 60 days of a price increase prior to expiration of a Subscription term the pricing will be the same as that during the immediately prior term in case the Subscription is automatically renewed.
15.3 Either Party may upon written notice to the other Party terminate this Agreement with immediate effect if: (i) the other Party has committed a material breach of this Agreement, and has not rectified the same within thirty (30) days after receipt of a written notice thereof; or (ii) the other Party is wound up or if a trustee in bankruptcy or insolvency, liquidator, receiver, or manager on behalf of a creditor is appointed or if circumstances arises which would entitle the court or a creditor to make a winding-up order, or if it otherwise is likely that the other Party is insolvent.
15.4 Upon termination of the Agreement or a Subscription term as set forth above, the Customer shall not be entitled to any refund of the Service Fees paid in advance covering the remainder of the term of any Subscription.
Any notice required or permitted to be given by either Party under this Agreement, shall be in writing and may be delivered by hand or courier, sent by registered airmail letter, facsimile or e-mail to the Parties contact persons at the above stated addresses or as otherwise agreed between the Parties. Such notice shall be deemed to be given:
(i) if sent by hand or courier, on the day of delivery to the receiving Party
(ii) if sent by registered airmail letter, five (5) days after the day of dispatch;
(iii) if sent by facsimile, when received on the other Party’s fax machine, provided that the sending party the same day has sent the fax by mail; or
(iv) if sent by e-mail, on the day after sending, provided that the sending Party does not receive any error message and that the sending email account indicates that the email was sent to the correct address .
16.2 Force Majeure
16.2.1 If and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed due to circumstances beyond the reasonable control of such Party such as, lightning, labour disputes, fire, acts of war, requisition, seizure, currency restriction, riots and civil disorders, shortage of means of transportation, shortage of goods, amendments to regulations issued by governmental authorities, intervention of authorities or defects and/or delays in delivery of his sub-suppliers due to the circumstances here stipulated (each, a “Force Majeure Event”), then the non-performing Party shall be excused from any performance of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature thereof. The non-performing Party is, however, always obligated to mitigate the effects of the Force Majeure Events.
16.2.2 Should an event of Force Majeure continue for more than three (3) months, each Party shall have the right to terminate the Agreement or part thereof.
16.3.1 The Customer may only assign the rights or obligations under this Agreement to a third-party with the prior written consent of the Software Service Provider.
16.3.2 The Software Service Provider may engage sub-contractors to execute the Services.
16.4 Entire Agreement and amendments
16.4.1 In the case of any inconsistency between the Agreement and any of its schedules, the Agreement shall prevail.
16.4.2 Any amendment or modification to this Agreement must, in order to be binding for the Parties, be in writing and signed by both Parties.
16.5 Survival of provisions
16.5.1 Any provision in this Service Agreement that to its nature is intended to survive the termination of this Agreement or any Subscription term will survive its termination and remain in force without limitation in time.
17. Governing Law and Disputes
17.1 This Agreement shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.
17.2 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 administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The place of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English, unless otherwise agreed.
17.3 The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
17.4 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.