These Terms of Service (“Terms“) govern Customer’s (“You“, “Your“) subscription and use of the Detail Online Service (“the Service“) and related business consultancy services (“Consultancy Services“), (jointly “Detail Services“) which are made available by Detail Merchandising Online DMO AB, reg. no. 556608-5642, a Swedish registered company (“Detail“, “Us“, “We“) with its primary office located at Vasagatan 16, 111 20 Stockholm, Sweden, e-mail email@example.com. Detail and You are jointly referred to as the Parties.
1.1.The Main Agreement, including any Statement of Works, appendices and these Terms referred (jointly the “Agreement”), constitute the Parties’ complete regulation of Detail‘s supply of the Services. In case of conflicting terms in these Terms and the Main Agreement, the Main Agreement shall prevail.
- ACCESS TO DETAIL SERVICE
2.1. During the term defined in the Agreement, We hereby grant to You a nonexclusive, non-sublicensable, non-transferable right to access and right to use, and to permit the Users (as defined below) to use the Detail Services, solely for your internal business operations.
2.2. The Service may include access to the following: (i) the Service (via the Detail website/portal and mobile application), documentation, sample business rules, glossaries and any fixes, updates and upgrades provided; [(ii) the Detail Application Programming Interface (“Detail API“)] and/or Detail plugins, necessary for you to make use of Detail functionality; (iii) the Detail dashboard, analysis tools and administrative console; and (iv) a variety of reports.
2.3. Access to the Detail Services is limited to those of your employees, contractors and business partners who have been issued usernames and passwords by You or by Detail (“Users“). Third–party contractors and consultants who have been engaged by You are required to sign a separate user agreement before access to the Service will be provided. Each User must have a personal, non–transferable password which they are obliged to keep confidential. User accounts should not be “shared“ or used by more than one individual. User rights can be transferred to another User only if a previous user becomes inactive and is no longer able to access the Detail Service.
2.4. All rights in and to the Detail Service not expressly granted herein are reserved to Detail or its third–party licensors.
- RESTRICTIONS OF USE
3.1. You shall not, directly, indirectly, alone, or with another party, (i) copy, or republish the Service or any part thereof; (ii) make the Service available to any person other than authorised users; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the Service or use the documentation in order to build a similar product or competitive product; nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
3.2. You further agree to not copy, modify, distribute, sell or lease any part of the Service nor reverse engineer or attempt to extract the source code of, the Service. You may only access the Service through the interfaces that We provide and You may not “scrape“ the Service through automated means or “frame“ any part of the Service.
3.3. You acknowledge and agree that Detail shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Services and unless otherwise specifically agreed any enhancement requests, or feedback, provided by Customer or any of Customer’s users relating to the use of the Services.
- CONSULTANCY SERVICES
4.1. During the term of this Agreement, Detail will provide Consultancy Services to Customer in accordance with this Agreement. The services to be performed, fees and other work particulars shall be more fully described in a Statement of Work (“SOW“) or any other ordering mutually agreed to by all parties and signed by the Party to be bound.
Customer understands and acknowledges that Detail‘s performance is dependent on Customer‘s timely and effective performance of any Customer Responsibilities set forth in this Agreement and the applicable SOW.
4.2. Detail will provide such resources and utilise such employees and/or consultants as it deems necessary to perform the Consultancy Services. Customer and Detail agree to cooperate in good faith to achieve completion of the Services in a timely and professional manner. Detail shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by Customer‘s failure to complete a Customer task or adhere to a Customer schedule.
4.3. Either party may, at any time, request changes to a SOW by submitting a written change request which identifies in reasonable details each of the following: (i) summary of requested change; (ii) why the change is needed, (iii) when the change is needed. Proposed changes to an existing SOW, or the issuance of a new SOW, may impact the project schedule, price or scope. Detail will evaluate Customer‘s change request, considering the feasibility of the change and impact on other project components. Changes to the SOW become effective when Customer and Detail accept the Change Order in writing. Customer acknowledges that Detail shall not be responsible for the impact of recommended modifications contained within a Change Order if Customer decides not to accept a written Change Order and corresponding SOW. In the event of any conflicts or inconsistency, the terms of an executed Change Order shall prevail over those of this Agreement and the applicable SOW.
- DETAIL SERVICE UPDATES
5.1. From time to time, We may update and change functionality of the Service and may add new or different functionalities. You will be granted access to any updated version of features and functionalities to which you have subscribed, provided that you are current with payment of all applicable fees.
5.2. We may introduce new optional features that are subject to additional terms and fees.
5.3. If a change in features or part thereof materially would impact the level of Service provided by Us, We may provide You with a credit of fees representing the value of the adjusted or deleted functionality if warranted.
5.4. The provision of the Service is conditional on Us being able to access certain third–party web sites or certain third-party services. Should it not be possible to access any third–party websites or Service due to no fault of ours, We reserve the right to amend the agreement with You and to credit pro–rata a portion of the fees paid for the Service which equates to the remainder of the Subscription Term or Renewed Subscription Term for the affected Service. This shall be Your sole remedy and Our only obligation and liability in respect of non-performance and non–availability of the Service.
6.1. The Statement of Works specifies the fees payable by You and shall also specify additional commercial terms and charges which may be applicable.
6.2. We reserve the right to increase the fees for Consultancy Services [and/or Optional Services] once in any 12-month period on giving thirty (30) days prior written notice to You.
6.3. In the event of overdue payments, We retain the right to charge interest from the due date until full payment is given. Interest on overdue payments shall be the equivalent to two (2) per cent per month calculated on the outstanding amount due. You shall be liable for all costs (including reasonable attorney fees) associated with Our collecting delinquent or dishonoured payments or interest thereto.
- PERSONAL DATA
7.1. If We process any personal data on Your behalf when performing Our obligations under these Terms and/or the Agreement, the Parties record their intention that You shall be the data controller, and We shall be a data processor and in any such case.
7.2. With regards to collection and processing of Personal Data in relation to the Users‘ accounts and support requests, We are the data controller.
7.3. Categories of Personal Data. Personal Data may include, among other information, personal contact information such as name, home address, telephone or mobile telephone number, e–mail address, and passwords, and business contact details.
7.4. Purposes. We shall, for situations where We are the data processor, in relation to Personal Data, act only in accordance with Your written instructions in order to operate, maintain, support and to provide the Service.
7.5. We shall not disclose personal data other than to Our personnel or consultants on a need-to-know basis for the performance of support or communicating with Users upon the User‘s request.
7.6. We may subcontract Personal Data storage, maintenance, and processing to third–party cloud service providers within and/or outside the EU/EEA with the appropriate technical and security safeguard to provide the adequate level of safety after receiving approval from applicable data controller.
7.7. We shall implement appropriate technical and organisational security measures to protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure, or access. To this end, We and the applicable data controller may choose to expand on the provisions of safeguarding personal data in these Terms/the Agreement, by entering into a separate Data Processing Agreement, that the applicable data controller may share with its Users if requested.
7.8. We will grant the applicable data controller and Users electronic access to their account environment that holds Personal Data to permit data controller and User to delete, release, specific Personal Data or, if that is not practicable and to the extent permitted by applicable law, follow data controller‘s detailed written instructions to delete, release, correct or block access to Personal Data. The data controller agrees to pay Detail‘s reasonable fees associated with the performance of any such deletion, release, correction, or blocking of access to data.
7.9. We shall pass on to the data controller any requests of an individual data subject to delete, release, correct, or block personal data processed under these Terms/the Agreement.
7.10. Except as otherwise required by law, We will promptly notify the data controller of any subpoena, judicial, administrative or arbitral order of an executive or administrative agency or other governmental authority (“Demand“) that We receive and which relates to the personal data We are on the data controller‘s behalf.
7.11. At the data controller‘s request, and to the extent permitted by law, We will provide the data controller with reasonable information in its possession that may be responsive to the demand and any assistance reasonably required for the data controller to respond to the demand in a timely manner.
7.12. Upon the effectiveness of the GDPR, the data processor is obligated, on request, to collaborate with the Data Protection Authority. This provision will take precedence to any confidentiality obligations which We concluded with the data controller, however, We shall duly inform data controller in case of any contacts.
- SUPPORT SERVICES
8.1. As part of the Detail Services, [ten (10)] hours of technical supervision and support services are included per month. We may provide additional support services as agreed upon separately.
- YOUR RESPONSIBILITIES
9.1. You may not use, and You shall procure that the Users do not use, the Service to upload, post, e–mail, or otherwise transmit or make available:
(a) any content or material that you do not have a right to transmit or any material that infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party or which is otherwise unlawful, or objectionable material or message;
(b) any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or which might otherwise interfere with or disrupt the Detail Service;
(c) harm us or third parties in any way.
9.2. You may not and you shall procure that the Users do not:
(d) copy, modify or create derivative works of the Detail Service or portions thereof;
(e) disclose or allow access to the Detail API to any third party or distribute the Detail plugins in any form;
(f) disclose the results of any quality, benchmark or performance testing of the Service to any third party without our prior written approval;
(g) work around any technical restrictions in the Service;
(h) allow access to, publicly perform or display the Service other than to your Users for the purposes of data submission and data quality management;
(i) transfer your access to the Service or this agreement to any third party; or
(j) sell or distribute any Reports to any third parties.
9.3. You are responsible for all activity occurring under and in relation to Your use and use by any and all Users of the Service and You shall be liable and hold Us harmless for Your acts or omissions as well as those of Users and Your sub-contractors and agents. You shall abide by all applicable national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications, employment law, intellectual property and the transmission of technical or personal data.
9.4. During the term of the Agreement, You shall have and shall maintain a proper and transferable audit right on relevant retailer‘s websites.
9.5. You are responsible for that any audit results regarding e.g. Your or Your competitor‘s prices or marketing strategies arising from Your use of the Service are not
used in an unlawful or otherwise inappropriate way, including but not limited to, mandatory competition laws, marketing laws, intellectual property laws or other applicable compliance legislation, regulation, or industry standards.
- INTELLECTUAL PROPERTY RIGHTS
10.1. The Service is owned by us and is protected by copyright and other intellectual property laws. All rights not expressly granted herein are reserved by Us. For the avoidance of doubt, the rights to any adaptions or modifications of the Service set up for Your use, will retain Our sole property during the term and after the termination.
10.2. In order for Us to provide You with the Service, You hereby grant Us a limited, non-transferable, revocable, royalty–free license in the Territory to, during the Term of the Agreement, make copies and make available to the public, information and content attributable to Your trademarks, products, including applicable intellectual property rights to the products, that are subject to the audit an online analysis and comparisons. However, this license solely grants Us with a right to use and present the audit results in the Service.
10.3. As a result of the operation of the Service, We may obtain general knowledge and know-how related to data quality and common errors (from your feedback or otherwise). During the term and after termination, We may use such general knowledge and know-how for the purposes of improving the Service.
- INTELLECTUAL PROPERTY INDEMNITY
11.1. Intellectual Property Rights Indemnity – We shall have no liability to You regarding any action or claim alleging intellectual property infringement based upon any conduct involving i) the use of the Service in combination with other products, equipment, devices or software not supplied by Us (including without limitation any application software produced by You or ii) the alteration, modification or customisation of the Service by any person other than Us, or by Us based on Your specifications or otherwise at Your direction or iii) any failure to install an update to the Service provided by Us.
11.2. In the event of an intellectual property infringement action or claim against Us which is based on any conduct described in the preceding Section 9.1, You shall at Your own expense defend such action or claim, and You shall pay any and all damages and costs finally awarded against Us in connection with such action or claim, provided that We notify You promptly in writing of such action or claim, We give You sole control of the defence thereof (and any negotiations for settlement or compromise thereof), and We cooperate in the defence thereof at Your expense.
12.1. Anonymized Data (as defined below) in aggregated form generated and collected by the Service shall be available to be accessed by Detail for the purposes of development of the Services. Detail shall not be permitted to sell or make available Anonymized Data to third parties for commercial benefit or otherwise without the specific written consent of Customer. Detail shall provide Customer and its Partners and End Users with access to such data during the term of this Agreement. For the purpose of this Agreement, “Anonymized Data“ shall mean data rendered anonymous in such a way that the data subject is not or no longer identifiable.
- TERMINATION DUE TO BREACH OF CONTRACT
13.1. If any Party is guilty of material breach of contract, the Party not at fault may terminate the Agreement by sending a written notice to the breaching Party. Party guilty of the breach shall, after receiving a notice about such breach, have [thirty (30 days] to correct the breach. If the breach is not corrected within this period, the Agreement shall be terminated, except clauses that explicitly states that they apply after termination of this Agreement.
13.2. If the Agreement is terminated for any other reason than a material breach done by the Consultant or Consultancy company, the Contractor is immediately entitled to unpaid an accrued remuneration for services performed under this Agreement, at the time of the termination.
13.3. If the Agreement is terminated prior to the term agreed upon Agreement period, and the Contractor or the Company according to this Agreement is obligated to pay the other Party any remuneration, the Agreement shall continue being in force until such remuneration is paid.
- EFFECT OF TERMINATION
14.1. Upon termination of the Agreement We immediately revoke any rights granted to You.
14.2. Upon termination, You and Your Users shall immediately cease use of the Service (and you acknowledge that we may terminate your account immediately). In this case, no refund of pre-paid fees will be provided by Us.
14.3. Unless Your access to the Service has been terminated for non-payment or for breach by You of the Agreement, We will maintain Your data and reports for a period of not less than thirty (30) days and make it available to You to download in a format reasonably determined by Us. If We terminate Your access to the Service for non-payment or breach of these Terms, You should be aware that all Your data and reports may be deleted permanently and may not be retrievable.
14.4. We are not obliged to maintain Your data for longer than three (3) months after You have stopped using the Service.
15.1. We warrant to provide the Service in a manner consistent with the generally accepted industry standards reasonably applicable to the provision thereof and that the Service will provide the features and functionality detailed on the Detail website under normal use and circumstances.
15.2. We warrant that Consultancy Services which are delivered hereunder will be performed in a professional manner consistent with the quality of Our performance of services for similarly situated customers and in accordance with generally accepted industry standards. Detail makes no guarantee that the Consultancy Services will achieve Your specific goals.
15.3. Except as expressly provided herein, Services are provided “as is“ and “as available“ and We exclude all other warranties of any kind, whether express, implied, statutory, or otherwise. We disclaim all express or implied warranties of merchantability, fitness for a particular purpose, and non-infringement, that the Service will meet your requirements, or that the Service will be uninterrupted, timely or error-free. We do not make any warranty as to the results that may be obtained from the use of the Service or as to the accuracy or reliability of any information obtained through the Service. No person, other than an officer of Ours is authorised to incur warranty obligations on Our behalf or to expand or modify the limitations set forth herein.
15.4. Internet. Detail services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.
15.5. Your warranties. You warrant that You have the devices, equipment, software and licenses that We, on Our website, by documentation or by another written method, have stated as required in order to use the Service, or which otherwise is clearly required for such use.
- LIMITATIONS OF LIABILITY
16.1. To the extent permitted by applicable law, in no event shall either Party be liable for any direct, or indirect, special, incidental or consequential damages whatsoever arising out of the access, use, distribution or inability to use or access the Service and/or the provisions of Consultancy Services, whether based on the Agreement, tort or other legal theory.
16.2. Unless a result of gross negligence or wilful misconduct, the liability of either Party is limited to the amount equivalent of the total fees paid under this Agreement in respect for the Service for the previous twelve (12) calendar months.
17.1. You will keep confidential any information acquired in the course of the provision of the Service and shall ensure that the same applies to the Users, except: (i) where We have given Our written consent to the disclosure; ii) where required by law to be disclosed to a specified party; iii) for proper disclosure in connection with legal proceedings; or iv) where the information is, or enters into, the public domain without any breach of this clause.
17.2. You shall not and shall ensure that the Users shall not, at any time during and for a period of [three years] after the term of this Agreement, in any manner, either directly or indirectly, divulge, disclose, or communicate to any person, firm, corporation or other entity, or use for its own benefit or for the benefit of any person, firm, corporation or other entity, and not for the benefit of Us, any information acquired from Us, Our parent or subsidiaries, without the express prior written consent of an authorised executive officer of Us, as more fully set forth in a certain Proprietary Information Agreement between Us and You.
17.3. In addition, You shall ensure that Your employees, officers, directors, subcontractors, agents and representatives shall execute similar agreements protecting Us proprietary information and agree to be bound by the terms and conditions contained therein.
18.1. You shall indemnify and hold harmless Us from and against direct loss and damage suffered by Us in connection with any negligent act or omission of the You or any employee or agent of Yours. The indemnification provided by You under this Section is limited in accordance with Section 13.
19.1. Entire Agreement. This Agreement constitute the entire agreement between the Parties and shall replace and supersede all prior written or oral agreements between the Parties regarding the subject matter of this Agreement.
19.2. Severability. If any provision of this Agreement is found to be held invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
19.3. Assignment. This Agreement is entered into by and between Us and You without the right to transfer or assign this Agreement to a third party without the prior written consent from the other Party. We shall, however, be free to without consent assign or transfer the Agreement to a company within Our group of companies.
19.4. Amendments. Any amendment or modification to the Main Agreement or shall in order to be binding for the Parties be in writing and signed by both Parties. Detail shall, however, be entitled to perform non–material changes to the Service and to these Terms in order to keep up to date with the state of the art and industry best practices.
19.5. Notices. Any notice given under this Agreement shall be made in writing and sent to the address set forth under the name of each Party on the first page of this Agreement.
- GOVERNING LAW AND DISPUTE RESOLUTION
20.1. This Agreement shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of law’s provisions and excluding the U.N. Convention of Contracts for the International Sale of Goods.
20.2. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC“).
20.3. The Rules for Expedited Arbitrations shall apply where the amount in dispute does not exceed EUR 100,000. Where the amount in dispute exceeds EUR 100,000 the Arbitration Rules shall apply. The Arbitral Tribunal shall be composed of a sole arbitrator where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000. Where the amount in dispute exceeds EUR 1,000,000, the Arbitral Tribunal shall be composed of three arbitrators. The amount in dispute includes the claims made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration.
20.4. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English, unless otherwise agreed.
20.5. The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential.