- These terms and conditions apply to any services and deliverables provided by NTI SWEDEN AB, Swedish business reg. no. 556405–9532, Fabriksgatan 10, 412 50 Göteborg, Sweden (“The Seller”) to its customers (“Customers”).
- The Seller and the Customer is each referred to as a ”Party” and jointly the “Parties”.
- The agreement, any appendices to the agreement and these GTC are collectively referred to as the “Agreement”.
- Unless otherwise agreed, conflicts that arise between the Parties, or in the event of discrepancies between the appendixes, shall issue the appendixes to be applicable in the following order:
- These General Terms and Conditions, including its sub-appendix 1.1 and NTI Software Terms and conditions:
- Service Level Agreement, “SLA” (Appendix 4)
- Agreement 90 Almega, https://ensolution.se/v2/wp-content/uploads/2019/03/Avtal-90.pdf
- These General Terms and Conditions, including its sub-appendix 1.1 and NTI Software Terms and conditions:
2. The services
- The services to be provided by The Seller under the Agreement may include solutions, software, software-as-a-service (“SaaS”), hotline services, technical assistance, and equipment, and are to be collectively referred to as the “Services”. The Services are also specified under the Agreement between the Parties.
- To the extent that the Services include NTI software or NTI SaaS (“NTI Software”), the Customer receives a right to use the NTI software upon payment of the agreed fee. In accordance with the latter, the Customer submits to the, at any given time, applicable GTC for the NTI Software as referred to under the Agreement, and the conditions thereof.
- The Services may contain third party software or third party SaaS (“Third Party Software”). To the extent that the Services include Third Party Software, the Customer receives a right to use the Third Party Software upon payment of the agreed fee. In accordance with the latter, the Customer submits to the, at any given time, applicable GTC for the Third Party Software as referred to under the Agreement, and the conditions thereof.
- The applicable GTC for Third Party Software regulate exhaustingly all aspects of the Customer’s use of the Third Party Software between the Parties and shall therefore prevail the Agreement between the Parties in all aspects, including rights, intellectual property rights, pricing, cancellation, breach of contract, liability and termination.
- The Customer shall provide the Seller with all information, access, and cooperation reasonably necessary to enable the Seller to provide his Services.
- The Seller warrants to have the required rights (either ownership or license rights) to deliver the Services, including the necessary rights to resell and use Third Party Software in the provision of the Services.
4. Intellectual property rights
- Unless otherwise set out in the Agreement, all Services performed under the Agreement including all materials, products, deliverables, business concepts, written material and documentation, user manuals and training material provided to the Customer by the Seller under the Agreement, and any intellectual property right or any other right connected thereto, are the property of the Seller and all title and interest therein shall at all times vest in the Seller.
- The fees for the Services, whether fixed or based on time and material, are set out in the Agreement under section 12 together with appendix 3 and 4.
- The Seller may freely regulate the fees, including but not limited to, the price changes on the market or any of its subcontractors.
- Costs that relate to travel are being charged at SEK 46 per 10 km and SEK 800 per hour. Any costs arising from the Seller’s use of linear traffic and/or the need for accommodation, will be charged corresponding to its actual price. With regards to this paragraph, allowances are also included.
- Invoiced fees are due for payment no later than 30 days after the invoice date. In the event of late payment, the Seller may, without further notice, charge interest in accordance with the Swedish Interest Act (section 13 under the Agreement). The Seller reserves the right to recover any clear and overdue claims for compensation due to failed payments by application for a payment injunction or through means of litigation.
- All fees are excluding VAT and all other applicable taxes, levies or duties imposed by taxing authorities, including but not limited to, value added and withholding taxes. The Customer shall be solely responsible for payment of all such taxes, levies, or duties.
- Rescheduling or cancellation of training sessions and consulting services shall, in written form, be notified to the Seller at least fourteen (14) days prior to the date of delivery.
- If a rescheduling or cancellation is attempted with a shorter notice than set out in the paragraph above (6.1), the Seller may invoice the Customer for the scheduled training sessions and consulting services.
- If the Seller incurs documented additional costs or losses because of the Customer’s rescheduling or cancellation of a scheduled Service, the Seller may reimburse such costs or losses on behalf of the Customer.
7. Breach of contract
- Unless otherwise set out in the Agreement between the Parties, the following shall apply.
- The rights and remedies under Swedish law shall apply to the Agreement and be available to each Party, except to the extent derogated from the Agreement between the Parties
- In the event of Parts contractual breach that lack special reason, applies what is said under section 7.4–7.7 below. If Parts breach of contract constitutes special reason however, the possibility of cancelling the Agreement arises on behalf of the other Part. Circumstances that always trigger special reason is, including but not limited to, Parts reprehensible, dishonest, and fraudulent behavior.
- The Customer shall provide the Seller with a written notice as soon as possible upon becoming aware of an alleged default under the Agreement.
- The Customer accepts that defaults are only valid and may only be claimed if they are constituted in written form and reach the Seller within the timeframe of twelve (12) months after the delivery of the default Service in question. When the twelve (12) months have passed, the Parties thereby agree to derogate from Article 32 of the Swedish Sales of Goods Act.
- The Seller is at any time entitled to remedy a default by way of repair, re-delivery, or supplementary delivery within three (3) months of receiving the written notice from the Customer without being in breach of the Agreement.
- Proportional price reduction may only be claimed by the Customer in the event of a material default not remedied by the Seller in accordance with the paragraph above (7.4)
- The Seller shall only be liable for damages occurred as a direct result of a material breach of the Agreement.
- The Seller shall in no event be liable for any indirect losses, including but not limited to, consequential losses, operational losses, increased operational expenses, loss of savings, loss of profit, or losses/expenses relating to loss of data.
- The Seller shall in no event be held accountable for damages arising from circumstances beyond the Sellers control, including but not limited to, damages caused by third party IT infrastructure or any other failures thereto.
- The Sellers total liability under the Agreement shall be limited to the fee paid by the Customer to the Seller under the Agreement in the preceding twelve (12) months.
9. Product liability
- The Seller is only obliged to compensate for loss arising from a major defect in a product or Service supplied, or otherwise from a major breach of contract in which the Seller is accountable for, to the amount of the Sellers own IT liability insurance.
- The Sellers liability for compensation solely concentrated to direct loss suffered by the Customer, not indirect nor consequential damage, including operation loss, increased operating costs, lost savings, loss off profit or expenses incurred due to loss of data.
- The Customer shall defend the Seller against any claims made by a third party that:
- Any customer data or third party materials used by the Seller on behalf of the Customer that infringes the intellectual property rights of a third party, or
- Relates to any usage of the Services which is not in compliance with the Agreement, or
- Otherwise relate to the use, hosting and/or processing of the Customer’s data by the Seller, or any other modifications or additions to the Services made by or on behalf of the Customer which are not authorized and/or supported by the Seller, or
- Arise from a violation of any applicable laws and regulations, a violation of the legal rights of others or the unauthorized access to or disruption of any service, data, account, or network in connection with the use of the Services.
- The Customer shall indemnify the Seller for all third party claims in relation to the Customer’s unrightful use of the Services and for any damages awarded by a final court decision or to be paid pursuant to a final binding out-of-court settlement in which the Seller is a Party, and for attorney fees and expenses (including expert fees and expenses) reasonably incurred by the Seller in connection with any such claim.
- Unless otherwise set out in the Agreement between the Parties, the Seller disclaims all warranties, guarantees, and conditions of any kind, whether expressed or implied, including but not limited to, any implied warranties, guarantees and non-infringements.
- The Seller does not warrant that the Services will operate in conjunction with any other hardware, software systems, software applications, services or data that is not provided by the Seller himself. Furthermore, the Seller disclaims any merchantability or fitness for a particular purpose, that the Services are uninterrupted or of satisfying quality, timely or free from error, in every given situation, each to the maximum extent permitted by applicable law.
12. Force majeure
- Neither Party shall be responsible or liable in any way for failure or delay in carrying out the terms of the Agreement to the extent it is prevented from performing due to any cause or circumstance beyond its’ control, including but not limited to, fire, flood, other natural disasters, war, external labor strikes, except local strikes that only affect the Supplier’s organization, interruption of public transports, or communications, riots, pandemics, civil commotion and terror attacks, currency restrictions, import restrictions, export restrictions, disruption or failure of energy supply, public data systems and communication systems, viruses, cyber terror or hacker attacks, all of which reasonably could not have been foreseen and avoided.
- The Party affected by the event of force majeure shall without undue delay notify the other Party. The obligations of the affected Party shall be suspended for as long as the extraordinary situation prevails. The corresponding obligations of the other Party shall be suspended under the same period.
- In such an extraordinary situation, the other Party may terminate the Agreement by notice in written form if the situation prevails or is expected to last for more than ninety (90) days.
- Agreements with the Seller’s subcontractors that result in the Seller not being able to fulfil its’ obligations to the Customer under the Agreement, and which cannot be overcome without disproportionate costs for the Seller, are also to be considered an activity of force majeure.
- Unless otherwise set out in the Agreement between the parties, confidential information, including all information exchanged or otherwise transferred between the Parties, shall be treated as confidential and shall not be disclosed to any third parties except for subcontractors without the written consent of both Parties.
- To the extent necessary, the Seller will impose similar confidentiality obligations on its subcontractors.
- The Seller is entitled to use the Customer as a reference when done in general terms, if it can be done without obligating the Customer, and the Customer approves such action through the means of a written consent.
14. Personal data
- To the extent that the Seller possesses personal data, the Seller then shall store, access and process data in accordance with the terms and conditions of the data processing agreement entered into between the Parties (see appendix 1.1 to these GTC).
15. Termination notice
- Unless otherwise set out in the Agreement, the term of the Agreement is one (1) year. Unless the Agreement is terminated by one of the Parties, the Agreement will automatically be renewed by periods of one year at a time.
- The Customer may terminate the Agreement by means of a written notice to the Seller three (3) months prior to the end of the initial agreement period.
- The Seller may terminate the Agreement by means of a written notice six (6) months prior to the end of the initial agreement period.
- The termination or expiration of the Agreement shall not affect any rights, obligations, or liabilities of either Party, instead they apply as if the period was prolonged.
16. General provisions
- Each Party confirms that the Agreement represents the entire understanding and constitutes the framework between the Parties.
- The Seller reserves the right to change the GTC from time to time without the need of a written consent from the Customer. The Seller will inform the Customer about such changes through e-mail, and the changes will be effective after thirty (30) days. If the Customer does not accept the Seller’s material changes within the GTC, the Customer must object therewith in written form within 14 days after receiving knowledge thereof. The Customers’s continued use of the Services after such change, will constitute an acknowledgement and acceptance of the modified changes to the GTC.
- If any term, provision, or Part of the Agreement is to any extent held invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of the Agreement, as applicable, will not be impaired or affected thereby, and each term, provision and part will continue in full force and effect, resulting in a valid and enforceable agreement to the fullest extent permitted by law.
- Unless otherwise set out in the Agreement, The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency and fiduciary or employment relationship between the Parties.
- Unless otherwise set out in the Agreement, the Customer may not assign or transfer the Agreement or any right or obligation thereunder, without prior written consent from the Seller.
18. Governing law and venue
- Unless otherwise set out in the Agreement, the performance under the Agreement shall be governed by, and construed in accordance with the substantive laws of Sweden, without regard to any portion of its choice of law principles and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.
- Unless otherwise set out in the Agreement between the Parties, any dispute, controversy, or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”). The Arbitral Tribunal shall be composed of three (3) arbitrators.
- The seat of arbitration shall be Stockholm, Sweden. The language spoken under the arbitral proceedings, shall be Swedish.
- In addition to section 13 of this GTC, the Parties undertake and agree to that all arbitral proceedings conducted with a reference to this arbitration clause shall be kept strictly confidential. The confidentiality undertaking shall cover all information disclosed during 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 be disclosed to a third party without the prior written consent of the other Party. Exceptions to the latter shall only apply to the extent that disclosure may be required of a Party due to mandatory law, an order of a competent court or public authority, or to protect, fulfil or pursue a legitimate legal right or obligation, or to enforce or challenge an award.