Safeture General Terms and Conditions for SDK
1.1 This document was last updated on 7 November 2019.
1.2 These general terms and conditions shall apply to all services provided by Safeture in as much as they are not amended by express written agreement between the parties.
1.3 Definitions. In these Terms and Conditions
1.3.1 “Active End User” shall mean a unique user that has gained access to Content and/or started the Safeture Services during the last 12 months. For the avoidance of doubt it is noted that only downloading a Customer App do not qualify a user as an Active End User.
1.3.2 ”Business Day” shall mean any day on which banks in Sweden are open for business.
1.3.3 “Content” shall mean incident feeds, messages, alerts, notifications and other security information provided to Active End Users by or on behalf of Safeture.
1.3.4 “Customer App” means a mobile device application for iPhone and Android developed by, or on behalf of, Customer by use of the Safeture SDK, designed to connect to the Safeture backend servers and to deliver Content to Active End Users.
1.3.5 “Safeture Services” shall mean the security services provided to Active End Users as specified in Appendix 1 to the Agreement.
1.3.6 “SDK Key” shall mean a unique identifier for a Customer App when using the Safeture SDK.
1.3.7 “App ID” shall mean unique identifier for identifying a Customer App in an App Store.
1.3.8 “App Store” means a digital site or application where it is possible to download the Customer App such as Google Play and Apple App Store iTunes.
1.3.9 “Term” shall mean the term specified in the Agreement.
1.3.10 “Terms and Conditions” shall mean these terms and conditions.
1.3.11 “Personal Data” shall have the same meaning as defined in article 4.1 of the general data protection regulation (EU 2016/679) (the “GDPR”).
2 Safeture SDK
2.1 Subject to the terms of this Agreement and during the Term, Safeture grants Customer a limited, worldwide and non-exclusive license to use the Safeture SDK to develop, or have developed, Customer Apps; and to
2.1.1 reproduce, distribute and sub-license parts of the Safeture SDK included in Customer Apps;
2.1.2 publish, market, demonstrate, promote and distribute parts of the Safeture SDK included in Customer Apps; and
2.1.3 make as many copies of the Safeture SDK, and related materials, as are required for exercise of the licenses and rights granted in this Agreement.
2.2 Customer may not use the same SDK Key for multiple App IDs in the same App Store.
2.3 Customer may not (i) reverse engineer, decompile or disassemble the Safeture SDK, except and only to the extent that applicable law expressly permits, despite this limitation; (ii) publish the Safeture SDK for others to copy; or (iii) rent, lease, or lend the Safeture SDK.
2.4 Customer may use third party developers for the development of Customer Apps provided that such third party developers are bound by terms for the use of the Safeture SDK not less stringent than the terms set out in this Agreement.
2.5 Safeture will provide free email support to Customer (including to a third party developer used by Customer) for the development of Customer Apps. All other support will be invoiced Customer at the rates set out in Appendix 1 to the Agreement. Telephone support, if included in the services pursuant to Appendix 1, is limited to 10 free hours per year.
2.6 From time to time Safeture may choose, at its own discretion, to make available partial or complete updates of the Safeture SDK (“Updates”). When made available, Updates will be supplied under the terms of this Agreement. A complete Update completely replaces any previous releases which are immediately rendered unsupported.
2.7 Safeture will use commercially reasonable efforts to adapt the Safeture SDK after release of a new development environment of the platform provider to that environment.
2.8 Company may NOT use the Safeture SDK for any purpose not expressly permitted in this Agreement.
2.9 Customer may NOT, directly or indirectly, mirror, relay or forward any Content. Upon breach of this Section 2.9, Customer shall pay to Safeture liquidated damages in the amount of USD 100,000 for each commenced week such breach persists.
2.10 Customer must follow Safeture’ implementation guidelines which may be amended unilaterally by Safeture at any time. If Customer does not follow the Safeture implementation guidelines, Safeture may notify Customer of its breach of this Section and, (i) unless corrected by Customer within 5 working days of such notice, or (ii) immediately if in Safeture’ sole determination the breach risk causing material damage for Safeture or adverse effects in the provision of the Safeture Services, suspend all access to the SDK and the Safeture Services until Customer has corrected the implementation. If Customer fails to correct the implementation within 30 days of Safeture’ notice, Safeture may immediately terminate the Agreement. Customer shall not be entitled to compensation for the suspended access to the SDK and the Safeture Services, or for the termination of the Agreement, due to a breach of this Section 2.10.
2.11 All Customer Apps shall contain the information “Powered by Safeture”, which shall be clearly visible and readable within the Customer App.
2.12 THE Safeture SDK IS SUPPLIED ON AN “AS IS” BASIS WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3 EQUIPMENT AND USE
3.1 Depending on how the Safeture Services is accessed by Active End User, he or she will need certain equipment and additional third-party services, such as a phone with carrier subscription. Safeture undertakes no responsibility for any such equipment or services or for any costs related thereto. Information regarding the requirements for the Safeture Services can be found at Safeture’ website: www.safeture.com
3.2 The Safeture Services is individually activated for each Active End User.
4 PERSONAL DATA
4.1 In the context of the performance of the Safeture Services, Safeture may receive Personal Data processed for purposes determined by the Customer. The Customer is the data controller of the Personal Data in accordance with the personal data protection laws applicable from time to time, as well as any other applicable law, regulation or equivalent ordinance.
4.2 Safeture undertakes to only process the Personal Data in accordance with the terms of the Agreement or other written agreement between the Parties, and only in accordance with the Customer’s instructions, Section 4.19, as well as with the from time to time applicable data protection legislation and any other applicable law, regulation or equivalent ordinance. The Customer is responsible for ensuring that Safeture does not process any other categories of Personal Data than those listed in Section 4.19, and in accordance with the scope stated therein. In case of changes in the documented instructions by the Customer, Safeture is entitled to reasonable compensation.
4.3 In case Safeture lacks the instructions that the Customer considers necessary to perform the tasks that Safeture has acquired from the Customer within the scope of the Safeture Services, Safeture shall, without delay, notify the Customer of its position and await such instructions that Safeture deems necessary.
4.4 Access to the Personal Data shall, within Safeture’ organization, be limited to those who require it for the performance of the Safeture Services and who are obligated to observe secrecy by agreement or by law. Safeture shall take appropriate technical and organizational measures to protect the Personal Data. Such measures shall provide a level of security that is appropriate with regard to the available technology and the cost of the measures, taking into account whether there are any specific risks involved with the processing and the level of sensitivity of the Personal Data. Such measures include
(a) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(b) the ability to restore the availability of and access to the Personal Data in a timely manner in the event of a physical or technical incident;
(c) the pseudonymisation and encryption of the Personal Data when the processing so requires under the applicable law;
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing, when required under the applicable law;
(e) keeping and updating logs of the Personal Data, the maintenance of a secure IT environment, and establishment and maintenance of physical security measures and procedures; and
(f) ensuring procedures to immediately notify the Customer of any completed unauthorized access to the data provided by the Customer (including destruction or alteration of the Personal Data).
4.5 Safeture undertakes to, at all times, ensure that relevant personnel complies with this Agreement and the Customers instructions, and to ensure that they are kept informed regarding the from time to time applicable data protection legislation.
4.6 Safeture shall, through suitable technical and organizational measures and to the degree it is possible in relation to the nature of the processing, assist the Customer in order for the Customer to be able to fulfil its obligation to respond to requests from the individual data subjects in accordance with the applicable law or regulation. Safeture shall also in all other aspects assist the Customer in fulfilling its obligations, taking into account the type of processing and the information available to Safeture, regarding
(a) security in connection to the processing;
(b) notification of any personal data breach to the supervisory authority;
(c) communication to the data subject of a personal data breach; and
(d) data protection impact assessment and prior consultation;
to the extent that the obligations in (a)-(d) above are required according to the applicable law or regulation. Safeture shall be entitled to reasonable compensation for its assistance in accordance with this Section 4.6.
4.7 Safeture undertakes to maintain a written record of the processing of Personal Data including the content stated in article 30.2 of the GDPR. Upon request, the records shall be provided to the Customer.
4.8 If, contrary to the GDPR, the Customer does not inform the individual data subject of a personal data breach and the supervisory authority orders Safeture to rectify the deficiency, the Customer shall compensate the costs of Safeture to adhere to the order of supervisory authority.
4.9 Safeture has the right to appoint another processor (a so-called sub-processor) for the processing of the Personal Data. Safeture shall inform the Customer that the Safeture intends to appoint another or replace a sub-processor at least 10 working days before such an appointment or replacement takes place. Safeture may notify the Customer of new sub-processors by updating a list available on Safeture’ website. If the Customer objects to the appointment of such sub-processor that the Customer has been informed of according to this Section 4.9 before the appointment, Safeture cannot appoint the sub-processor for the processing of the Personal Data, provided that the Customer had a justifiable reason for its objection. The term “justifiable reason” as referred to in this Section refers to circumstances on behalf of the sub-processor that, to a considerable degree affects, or likely will affect, the protection of the personal integrity of the individual data subject, for example if the new sub-processor does not fulfil the requirements on personal data processors in the GDPR or any other relevant privacy legislation. If Safeture engages such sub-processor, Safeture shall ensure that the data processor by agreement
undertakes the same data privacy obligations as arising out of this Agreement. Safeture is fully responsible towards the Customer for such undertakings of the sub-processor. 4.10 Unless otherwise agreed upon in writing between the Parties, Safeture has the right to transfer personal data outside the EU/EEA. Safeture undertakes to only transfer or process personal data outside the EU/EEA when such transfer or processing is lawful under article 45-47 of the GDPR.
4.11 The Customer has the right to information and the right to audit the performance of Safeture’ obligations under Agreement. Safeture shall allow and contribute to such audits, including inspections, carried out by the Customer or an auditor engaged by the Customer. If the Customer wishes to carry out an inspection, the Customer shall inform Safeture of such inspection within reasonable time before the inspection and at the same time specify the content and scope of the inspection. Safeture has right to compensation of its reasonable costs in relation to such an inspection or other audit. Unless otherwise agreed upon in writing, the inspection can only be performed if an audit according to the GDPR cannot be fulfilled through the provision of information by Safeture.
4.12 An inspection according to Section 4.11 requires that the Customer, or an auditor appointed by the Customer, has agreed upon necessary confidentiality obligations and adheres to the safety regulations on the place of inspection. It also requires that the inspection is performed without the risk of disrupting the business operations of Safeture or the protection of the information of other controllers and personal data. Information that is gathered as part of an audit, including inspections, shall be deleted after the audit is completed or when it is not necessary for the purpose of the audit.
4.13 Safeture shall immediately inform the Customer if Safeture believes that an instruction is contrary to applicable law, regulation or equivalent ordinance. Safeture shall be prepared to comply with decisions made by the Swedish Data Protection Authority on measures to comply with the safety requirements of applicable law.
4.14 Safeture shall without delay notify the Customer regarding any contact with a competent supervisory authority that concerns, or could be of importance for, the Customer’s processing of Personal Data. Safeture does not have the right to represent the Customer or act on its behalf in relation to the supervisory authority.
4.15 Upon discontinuation of Safeture’ processing of the Personal Data (e.g. due to the Customer giving instructions that the processing should be discontinued or that the Agreement is terminated in accordance with Section 12 below), Safeture shall return or anonymize all data containing personal data covered by the Agreement and all media on which such data is stored. Safeture shall also delete or anonymize existing copies of all such data, e.g. from backup systems, unless Safeture has a legal obligation to retain the Personal Data under union or member state law.
4.16 Safeture has no right to transfer its rights or obligations under the Agreement, in whole or in part, without the Customer’s prior written consent.
4.17 If applicable data protection legislation change during the period of the Agreement, or if a competent supervisory authority issues guidelines, decisions or rules regarding the application of the applicable data protection legislation, that results in the Agreement to no longer meet the requirements provided for data processing agreements, the Agreement shall change to accommodate such new or additional requirements and/or changes. Any such change shall enter into force on the day that the Customer states, but not earlier than five days after notice of such change was sent to Safeture. Safeture has right to compensation for its reasonable costs incurred by such a change of the Agreement.
4.18 For the period of the Agreement and thereafter, Safeture undertakes not to disclose the Personal Data to any third party unless instructed by the Customer. The Personal Data may only be disclosed to such employees of Safeture for which the Personal Data is necessary to perform their tasks, to a competent supervisory authority, or otherwise when disclosure of the Personal Data is required by law or any governmental or other regulatory authority, or pursuant to applicable stock exchange rules. It is the responsibility of Safeture to ensure that employees that are likely to come in contact with the Personal Data have undertaken to keep the Personal Data confidential to the same extent as Safeture is required under the Agreement.
4.19 Below are the instructions of the Customer, as stated in Section 4.2 of these Terms and Conditions. Instructions given at a later date which makes reference to Section 4 and these instructions shall replace the ones provided below.
(a) Categories of data subjects: Active End Users.
(b) Types of Personal Data: telephone number, e-mail address, IP address, location.
(c) Processing purposes: data is processed in order to keep track of user’s location in order to fulfill the security service. Anonymized data is processed for statistical purposes and future optimization of the Safeture Services.
(d) Nature of the processing: collecting, storing, viewing, analyzing, anonymization and use.
(e) Retention period: As long as Active End User is active, however personal data will not be kept for a period longer than 18 months.
5 SAFETURE SERVICES
5.1 Safeture shall: (i) provide the Safeture Services, (ii) use commercially reasonable efforts to make the Safeture Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Safeture shall give at least 8 hours’ notice via the Safeture Services); or (b) any unavailability caused by circumstances beyond Safeture reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Safeture Services only in accordance with applicable laws and government regulations.
5.2 Customer shall (i) be responsible for the accuracy, quality and legality of its data and of the means by which Customer acquired its data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Safeture Services, and notify Safeture promptly of any such unauthorized access or use, and (iii) use the Safeture Services only in accordance with applicable laws and government regulations. Customer shall not (a) make the Safeture Services available to anyone other than Active End Users, (b) sell, resell, rent or lease the Safeture Services, or (b) attempt to gain unauthorized access to the Safeture Services or their related systems or networks.
6 FEES AND PAYMENT FOR PURCHASED SERVICES
6.1 Fees. Customer shall pay to Safeture the costs and fees set out in Appendix 1 to this Agreement.
6.2 Safeture has, once per year, the right to adjust the fees based on the latest available European Union Inflation Index (HICP) at the time of invoice compared to corresponding index the previous year, plus an additional 2%.
6.3 Invoicing and Payment. Safeture will invoice Customer quarterly in advance. Customer shall promptly notify Safeture of any changes to its invoicing address.
6.4 All invoices shall be paid no later than thirty (30) days from the issuance date of an invoice (the “Invoice Date”) in the currency specified in such invoice, exclusive of any taxes. Any amount overdue shall bear an overdue interest rate of one (1) percent per month until payment of the overdue amount is received by Safeture.
6.5 In the event Customer is in delay with payment, and the delay exceeds fifteen (15) Business Days, Safeture is entitled to suspend the provision of the Safeture Services without any liability to Customer, until all overdue amounts, including the overdue interest, are paid in full and received by Safeture. Safeture will notify Customer at least five (5) Business Days before suspending the provision of the Safeture Services. Once Customer has paid all overdue amounts, including the overdue interest, Safeture shall as soon as possible commence the provision of the Safeture Services. For the avoidance of doubt, suspension of any of the Safeture Services does not entitle Customer to any reduction of fees or partial payment for the Safeture Services during the time the provision of the Safeture Services is suspended.
6.6 In the event payment of an undisputed invoice is delayed in excess of thirty (30) days, in addition to the right to suspend provision of the Safeture Services in accordance to Section 6.5 above, Safeture shall upon at least five (5) Business Days written notice to Customer also be entitled to terminate this Agreement in whole or in part or any Safeture Services provided hereunder with immediate effect.
6.7 Taxes. Unless otherwise stated, Safeture’ prices and fees do not include VAT.
7 PROPRIETARY RIGHTS
7.1 Reservation of Rights in Safeture Services. Subject to the limited rights expressly granted hereunder, Safeture reserve all rights, title and interest in and to the Safeture Services and the Safeture SDK, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
7.2 Restrictions. Customer shall not (i) permit any third party to access the Safeture Services except as permitted herein, (ii) create derivate works based on the Safeture Services or the Safeture SDK except as authorized herein, (iii) copy, frame or mirror any Content, (iv) reverse engineer the Safeture Services, or (v) access the Safeture Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Safeture Services.
7.3 Customer’s Data. Subject to the limited rights granted by Customer hereunder, Safeture acquire no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customers’ data, including any intellectual property rights therein.
7.4 Suggestions. Safeture shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Safeture Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Active End Users, relating to the operation of the Safeture Services.
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s data; Safeture’ Confidential Information shall include the Safeture Services; and Confidential Information of each party shall include the terms and conditions of the Subscription Agreement and the Conditions, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer’s data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) was independently developed by the Receiving Party, or (v) a party is required to disclose by law or by stock exchange rules or pursuant to any order of court or other competent authority or tribunal.
8.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or any other governmental or other regulatory authority, or any applicable stock exchange rules, to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving
Party for its reasonable cost of compiling and providing secure access to such Confidential Information. 8.4 Marketing. Safeture shall, notwithstanding the above, have the right to communicate that Customer is a customer of Safeture in Safeture’s marketing, without the prior written consent of Customer.
9 WARRANTIES AND DISCLAIMERS
9.1 Safeture Warranties. Safeture warrants that (i) Safeture has validly entered into the Agreement and have the legal power to do so, (ii) the Safeture Services shall perform materially in accordance with the descriptions at www.safeture.com, (iii) the functionality of the Safeture Services will not be materially decreased during a subscription term, and (iv) Safeture will not transmit malicious code to any Active End User. For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 13.1 (Termination for Cause).
9.2 Customer Warranties. Customer warrants that it has validly entered into this Agreement and has the legal power to do so.
9.3 Safeture Disclaimer. Unless otherwise explicitly stated herein, Safeture disclaims any and all liability for the acts, omissions and conduct of any third parties outside Safeture´ reasonable control in connection with or related to the Safeture Services. Safeture disclaims all any and all liability for the Content, advice or accuracy of the Content in the warning messages generated within the Safeture Services. Safeture specifically disclaims any and all liability for disruptions or malfunctions in any mobile telecommunication network or operations of mobile networks. Safeture shall not be liable for any actions that might be taken or not be taken as a result of warning messages, message content or any other information provided by Safeture. Nor will Safeture accept any liability regarding any loss of revenue, business, anticipated savings or profits; or for any indirect special or consequential loss damage, cost or other claims, howsoever caused or arising, whether through non-supply or late supply of the Safeture Services.
10 MUTUAL INDEMNIFICATION
10.1 Indemnification by Safeture. Safeture shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Safeture Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court- approved settlement of, a Claim Against Customer; provided that Customer (a) promptly give Safeture written notice of the Claim Against Customer; (b) give Safeture sole control of the defense and settlement of the Claim Against Customer (provided that Safeture may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provide to Safeture all reasonable assistance, at Safeture’ expense. In the event of a Claim Against Customer, or if Safeture reasonably believe the Safeture Services may infringe or misappropriate, Safeture may in its discretion and at no cost to Customer (i) modify the Safeture Services so that they no longer infringe or misappropriate, without breaching Safeture warranties under “Safeture Warranties” above, (ii) obtain a license for Customer’s continued use of the Safeture Services in accordance with this Agreement, or (iii) terminate Customer’s user subscriptions for such Safeture Services upon 30 days’ written notice and refund to Customer any prepaid fees covering the remainder of the term of such user subscriptions after the effective date of termination.
10.2 Indemnification by Customer. Customer shall defend Safeture against any claim, demand, suit or proceeding made or brought against Safeture by a third party alleging that Customer data, or Customer’s use of the Safeture Services is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Safeture”), and shall indemnify Safeture for any damages, attorney fees and costs finally awarded against Safeture as a result of, or for any amounts paid by Safeture under a court-approved settlement of, a Claim Against Safeture; provided that Safeture (a) promptly give Customer written notice of the Claim Against Safeture; (b) give Customer sole control of the defense and settlement of the Claim Against Safeture (provided that Customer may not settle any Claim Against Safeture unless the settlement unconditionally releases Safeture of all liability); and (c) provide to Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11 LIMITATION OF LIABILITY
11.1 Limitation of Liability. Neither party’s liability with respect of any single incident arising out of or related to the Agreement (whether in contract or tort or any other theory of liability) shall exceed the lesser of USD 100,000 or 25 % of the amount paid by Customer to Safeture in the 12 months preceding the incident, provided that in no event shall either party’s aggregate liability arising out of or related to the Agreement (whether in contract or tort or any other theory of liability) shall exceed the total amounts paid to Safeture hereunder. The foregoing shall not limit Customer’s obligation to pay agreed fees for the Safeture Services.
11.2 Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages, however caused (whether in contract or tort or any other theory of liability) and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent expressly prohibited by law.
11.3 Personal Data. As responsible for the treatment of the personal data, the Customer is liable for damages towards its Active End Users and other individuals whose personal data have been registered if the personal data is not treated according to applicable privacy laws. Notwithstanding any other provision herein, Customer agrees to defend, at its own expense, any claim, suit, action or proceeding brought against Safeture, and each of their respective directors, officers, employees and agents (collectively, “Indemnitees”) and shall indemnify and hold Indemnitees harmless from and against any and all claims, demands, liabilities, losses, costs, damages or expenses, (including reasonable attorneys’ fees and costs of
settlement), resulting from or arising out of any third party claims arising out of Customers representations and warranties under Section 4 (Personal Data).
11.4 The limitations set out in Sections 11.1 and 11.2 above shall not apply to third party claims resulting out of Section 10 (Mutual Indemnification), Section 11.3 (Personal Data).
12.1 The Customer is responsible for imposing the terms and conditions of this Agreement on any party contracted for the development of the app and any other party that the Customer, directly or indirectly, grants access to the SDK and APIs (including related content and functionality). The Customer guarantees that should any party contracted for the development of the app or any other party that the Customer, directly or indirectly, have provided access to the SDK or APIs or related content or functionality (by breaching any of the terms of this Agreement), the Customer shall be fully responsible for all acts and omissions of such third parties (regardless of the Customer’s knowledge thereof), and shall be liable to Safeture as if the Customer’s own act or omission.
13.1 Termination for Cause. Notwithstanding anything in this Agreement, this Agreement may be terminated by either party forthwith
13.1.1 on giving notice in writing to the other party if the other party commits any material breach of any term of this Agreement, and in the case of a breach capable of being remedied, shall have failed within thirty (30) days after the receipt of a request in writing from the non-defaulting party to do so; or
13.1.2 should the other party during the term of this Agreement stop its payments, enter into liquidation or administration, be unable to pay its debts in the ordinary course of its business, cease to or threaten to cease to trade, make a composition or arrangement with its creditors, have a receiver or manager appointed for its assets, undertaking or part thereof, be declared bankrupt, otherwise become insolvent or if an order is made or a resolution is passed for its winding up, or any similar or analogous event occurs in any jurisdiction.
13.2 Any expiry or termination of this Agreement howsoever occasioned shall not affect any rights or liabilities of any party which have accrued prior to termination.
13.3 Surviving Provisions. Sections 6 (Fees and Payment for Purchased Safeture Services), 7 (Proprietary Rights), 8 (Confidentiality), 9 (Warranties and Disclaimers), 10 (Mutual Indemnification), 11 (Limitation of Liability) and 15 (General) shall survive any termination or expiry of this Agreement.
14 DISPUTES AND GOVERNING LAW
14.1 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”).
14.2 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. The language to be used in the arbitral proceedings shall be English.
14.3 All arbitral proceedings conducted pursuant to Section 13.1, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than these proceedings nor be disclosed to any third party without the prior written consent of the party to which the information relates or, as regards to a decision or award, the prior written consent of all the other disputing parties.
14.4 This Agreement shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
15 FORCE MAJEURE
15.1 Neither party shall be liable to the other party for any failure to perform any obligation under this Agreement which is due to an event beyond the control of such party including, without limitation, natural disasters, war, riot, civil unrest, terrorism, strikes, lock-out and other labour difficulties (regardless of the party concerned is the object or party to such an action), lightening, fire, flooding, public utility failures, amendment of rules to public authorities, interventions by public authorities, disruptions or malfunctions in any mobile telecommunication network or the operations of mobile networks, internet service provider failures or delays or denial of service (DoS or DDoS) attacks. The party affected by such event shall so inform the other party and shall use all commercially reasonable efforts to comply with the terms and conditions of this Agreement. If, as a result of circumstances referred to above, the fulfilment of an obligation is delayed by more than ninety (90) days, the party not affected by such circumstances shall be entitled to terminate this Agreement with immediate effect without incurring any liability therefore.
16.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the address in the Subscription Agreement or such other address notified to Safeture in writing.
16.2 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
16.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 16.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
16.5 Entire Agreement. This Agreement, including the Subscription Agreement and all exhibits and addenda hereto, sets out the entire understanding between the parties and merges all prior discussions and agreements between them. The parties will not be bound by any conditions, definitions, warranties or representations in respect of the subject matter of this Agreement other than those contained in the Agreement, and that to the extent permitted by law, all express or implied warranties, representations, statements, terms and conditions relating to this Agreement, which could otherwise be relied upon by either party are excluded, unless expressly stated in this Agreement.
16.6 Industry change. In the event of any change in legislation or industry practice, or the content generally available within the Safeture Services, that directly or indirectly affects (i) the operation of this Agreement or the Safeture Services which is material to Safeture’ performing its obligations, including its obligations to Customer; or (ii) the benefits of this Agreement accruing to Safeture; Safeture reserves right to change these Conditions. It is Customer’s responsibility to ensure that he carefully read this Agreement and keep himself updated to any changes therein. The latest valid version of the Conditions is available at Safeture’ website www.safeture.com. Any revision to this Agreement will take effect immediately upon being posted on the Website.