1.1 Together with a Subscription Agreement these general conditions (“Conditions”) shall apply to all services provided by Scandinavian Risk Solutions AB with Subsidiaries (“SRS”) in as much as they are not amended by express written agreement between the parties.
1.2 Definitions. In these Conditions “Customer” shall mean the company or corporation, or private individual, who subscribes to services provided by SRS. “End User” shall mean such employee, agent or other individual that activates and gains access to SRS’s services by virtue of a Subscription Agreement. “Services” shall mean all services provided by SRS to Customers and their End Users. “Effective Date” shall mean the day Customer and SRS have duly signed a Subscription Agreement. “Agreement” shall mean the Subscription Agreement including the Conditions and any other agreement between the parties regarding the Services.
1.3 By clicking a box indicating End User’s acceptance, by executing a Subscription Agreement or by activating and gaining access to the Services, the Customer agrees to the terms of these Conditions. The Conditions do not give rise to any direct contractual relationship between SRS and End User.
1.4 The Customer undertakes to inform the End Users which he has provided with the Service, about these Conditions, and to keep them informed of any changes therein.
2 EQUIPMENT and USE
2.1 Depending on how the Service is accessed by the End User, he or she will need certain equipment and additional third-party services, such as a phone with carrier subscription. SRS undertakes no responsibility for any such equipment or services or for any costs related thereto. Information regarding the requirements for the Service can be found at SRS’s website: www.srsgroup.se/alert
2.2 The Service is individually activated for each End User.
3 PERSONAL DATA
3.1 The Service requires that SRS collects and stores personal data, the End User’s phone number, gets access to the End User’s locational data and is allowed to send text messages (SMS) to the End User. All SRS’s use of personal data is made on behalf of the Customer. The Customer is solely responsible to the End Users to whom he has provided access to the Service, for the entering, removal or changes in the personal data.
3.2 The Customer is responsible for the End User’s acceptance of SRS gathering and storing the End User’s phone number in order to provide access to the Services. The Customer is also responsible for the End User’s acceptance of SRS gathering, storing and analyzing positional data from the End User’s phone and the networks the phone is connected to; and that SRS sends text messages to the End User’s phone; all in order to provide the Services.
3.3 SRS shall only treat personal data in accordance with instructions given by the Customer. SRS shall take appropriate technical and organizational measures to protect the personal data entrusted to it and ensure a high level of security.
3.4 The Customer undertakes to make the End User aware that the Customer, if subscribed to such additional service, can access some positional information about the End User’s phone. According to Swedish Personal Data Act (SFS 1998:204), the Customer may only use the positional information if he has a legitimate reason, such as the safety of the employee. In order to use the information for surveillance purposes, the Customer needs to receive End User’s explicit consent. The Customer will not have access to historical positional information, only the current position of the phone.
4.1 During the term of the Agreement, SRS undertakes to provide the Customer with a non-exclusive, non-transferable revocable subscription to let his End Users access and use the Service.
4.2 SRS shall: (i) provide the Service, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which SRS shall give at least 8 hours notice via the Services and which SRS shall schedule to the extent practicable during the weekend hours; or (b) any unavailability caused by circumstances beyond SRS’s reasonable control, including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SRS’s employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.
4.3 Customer shall (i) be responsible for the End Users’ compliance with these Conditions, (ii) be responsible for the accuracy, quality and legality of his data and of the means by which the Customer acquired his data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify SRS promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. The Customer shall not (a) make the Services available to anyone other than the End Users reported to SRS, (b) sell, resell, rent or lease the Services, or (b) attempt to gain unauthorized access to the Services or their related systems or networks.
5 FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Subscription Fees are annual and subscriptions are based on the number of End User subscriptions purchased by the Customer. This corresponds to the maximum number of End Users allowed to access and use the Service. The Customer shall pay all fees specified in the Subscription Agreement. Except as otherwise specified herein or the Subscription Agreement, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated in the Subscription Agreement. Subscription fees are based on annual periods that begin on the Effective Date; therefore, fees for User subscriptions added in the middle of an annual period will be charged for the remainder of the subscription term.
5.2 Additional End User subscriptions may be added during the applicable subscription term at the same pricing as for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional End User subscriptions are added. The added End User subscriptions shall terminate on the same date as the pre-existing subscriptions. End User subscriptions are for designated End Users only and cannot be shared or used by more than one End User but may be reassigned to new End Users replacing former End Users who no longer require ongoing use of the Services.
5.3 SRS will invoice the Customer in advance and otherwise in accordance with the relevant Subscription Agreement. Unless otherwise stated in the Subscription Agreement, invoiced charges are due net 10 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to SRS and notifying SRS of any changes to such information.
5.4 If any amount owing by the Customer under this or any other agreement for SRS’s services is 30 or more days overdue, SRS may, without limiting its other rights and remedies, suspend SRS’s services to Customer until such amounts are paid in full. SRS will give the Customer at least 7 days’ prior notice that the Customer’s account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to the Customer.
5.5 Unless otherwise stated, SRS’s prices and fees do not include VAT.
6 PROPRIETARY RIGHTS
6.1 Subject to the limited rights expressly granted hereunder, SRS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
6.2 The Customer shall not (i) permit any third party to access the Services except as permitted herein or in a Subscription Agreement, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3 Subject to the limited rights granted by the Customer hereunder, SRS acquires no right, title or interest from the Customer or the Customer’s licensors under this Agreement in or to Customers’ data, including any intellectual property rights therein.
6.4 SRS shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including End Users, relating to the operation of the Services.
7.1 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. The Customer’s Confidential Information shall include the Customer’s data; SRS’s Confidential Information shall include the 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 the 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, or (iv) was independently developed by the Receiving Party.
7.2 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.
7.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law 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 WARRANTIES AND DISCLAIMERS
8.1 SRS warrants that (i) SRS has validly entered into the Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the descriptions at www.srsgroup.se/alert, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) SRS will not transmit malicious code to End User. For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 11.2 (Termination for Cause) and Section 11.3 (Refund or Payment upon Termination) below.
8.2 Customer warrants that it has validly entered into this Agreement and have the legal power to do so.
8.3 Unless otherwise explicitly stated herein, SRS disclaims any and all liability for the acts, omissions and conduct of any third parties outside SRS´s reasonable control in connection with or related to the Service. SRS disclaims all any and all liability for the content, advice or accuracy of the content in the warning messages generated within the Service. SRS specifically disclaims any and all liability for disruptions or malfunctions in any mobile telecommunication network or operations of mobile networks. SRS 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 SRS. Nor will SRS 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 Services.
9 MUTUAL INDEMNIFICATION
9.1 SRS shall defend the Customer against any claim, demand, suit, or proceeding made or brought against the Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify the Customer for any damages, attorney fees and costs finally awarded against the Customer as a result of, and for amounts paid by the Customer under a court- approved settlement of, a Claim Against Customer; provided that the Customer (a) promptly gives SRS written notice of the Claim Against Customer; (b) gives SRS sole control of the defense and settlement of the Claim Against Customer (provided that SRS may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to SRS all reasonable assistance, at SRS’s expense. In the event of a Claim Against Customer, or if SRS reasonably believes the Services may infringe or misappropriate, SRS may in its discretion and at no cost to the Customer (i) modify the Services so that they no longer infringe or misappropriate, without breaching SRS warranties under 8.1 above, (ii) obtain a license for the Customer’s continued use of the Services in accordance with this Agreement, or (iii) terminate the Customer’s user subscriptions for such 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.
9.2 The Customer shall defend SRS against any claim, demand, suit or proceeding made or brought against SRS by a third party alleging that Customer data, or the Customer’s use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against SRS”), and shall indemnify SRS for any damages, attorney fees and costs finally awarded against SRS as a result of, or for any amounts paid by SRS under a court-approved settlement of, a Claim Against SRS; provided that SRS (a) promptly gives the Customer written notice of the Claim Against SRS; (b) gives the Customer sole control of the defense and settlement of the Claim Against SRS (provided that Customer may not settle any Claim Against SRS unless the settlement unconditionally releases SRS of all liability); and (c) provide to Customer all reasonable assistance, at Customer’s expense.
9.3 This Section 9 (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.
10 LIMITATION OF LIABILITY
10.1 Neither party’s liability with respect to 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 SEK 50 000 or 25 % of the amount paid by the Customer to SRS 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) exceed the total amounts paid to SRS hereunder. The foregoing shall not limit the Customer’s obligation to pay agreed fees for the Services.
10.2 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 prohibited by law.
11 TERM and TERMINATION
11.1 This Agreement commences on the Effective Date and continues for an initial period of twelve (12) months and shall be renewed automatically for twelve (12) months on each anniversary of the Effective Date (the initial period and each such successive twelve (12) month period) unless this Agreement is terminated; (a) by either party giving at least three (3) months’ written notice to the other party, such notice to expire at the end of the then-current twelve (12) month period; or (b) by SRS giving at least three (3) months written notice in the event that it is to cease to provide the Service. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless SRS has given Customer written notice of a pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
11.2 Termination for Cause. A party may terminate this Agreement for cause:
(i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3 Upon any Termination for Cause by Customer, SRS shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by SRS, the Customer shall pay any unpaid fees covering the remainder of the term of all subscribed Service Packages after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to SRS for the period prior to the effective date of termination.
11.4 Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Warranties and Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.3 (Refund or Payment upon Termination), and 12 (General) shall survive any termination or expiration of this Agreement.
12.1 Governing Law and Jurisdiction. Any dispute, which may arise in connection with these Conditions, shall be governed by the rules for processing of cases by the Swedish Arbitration Institute. Each Party shall appoint an arbitrator, while the President of the Court of arbitration shall be appointed by the Swedish Arbitration Institute. If a party does not within 30 days after having submitted or received notification of the request for arbitration has appointed an arbitrator, such shall be appointed by the Swedish Arbitration with the above rules. The agreement is governed by Swedish law.
12.2 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 the Customer shall be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer shall be addressed to the address in the Subscription Agreement or such other address notified to SRS in writing.
12.3 No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.4 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.
12.5 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).
12.6 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.
12.7 In the event of any change in legislation or industry practice, or the content generally available within the Service, that directly or indirectly affects (i) the operation of this Agreement or the Service which is material to SRS performing its obligations, including its obligations to the Customer; or (ii) the benefits of this Agreement accruing to SRS; SRS reserves right to change these Conditions. It is the Customer’s responsibility to ensure that he carefully reads this Agreement and keeps himself updated to any changes therein. The latest valid version of these Conditions are available at SRS’s website www.srsgroup.se/alert. Any revision to this Agreement will take effect immediately upon being posted on the Website.