These general Terms and Conditions were last updated on June 08, 2016.
1. GENERAL INFORMATION
1.1 Ways Sweden AB a corporation located at Klarabergsviadukten 63, SE-11164, Stockholm, Sweden (“Ways”), provides products and services that facilitate document management and collaboration (“Service(s)”). Detailed descriptions of and specific terms for the various Services are set out in special Service Descriptions for each Service (“Service Description(s)”).
1.2 These General Terms and Conditions and any document incorporated or references therein (“Terms and Conditions”) and the applicable Service Description(s) forms the agreement between Ways and the Customer (“Contract”).
1.3 The Customer may also place orders for the Service(s) with a Ways distributor or reseller. By signing the Ways distributor’s or reseller’s order, electronically accepting these General Terms and the Service Description for the respective Service(s) and upon Ways’ written acceptance of the order, a Contract between Ways and the Customer is formed.
1.4 The Contract replaces any previously existing agreements between the parties regarding the Service.
2. THE SERVICE AND ACCESS TO THE SERVICE
2.1 Access and use of the Service requires the Customer to be connected to the Internet and have access to the technical equipment described in the Service Description. The Customer shall be responsible for the maintenance, use and availability of the Customer’s own network connection to the Service.
2.2 The Customer will be connected to the Service as soon as possible after Ways, or Ways distributor or reseller, has received and accepted the Customer’s valid payment information and upon the Customer’s acceptance of these General Terms. Ways confirms the connection by effectuate the Service, and/or by written notification to the Customer.
2.3 The Customer acknowledges and agrees that the Services are hosted on the Microsoft® Windows Azure™ platform. Terms and conditions for such cloud services are updated by Microsoft Corporation quarterly and the current terms and conditions can be found on Microsoft Corporation’s official web site Microsoft Azure Legal Information, ”Online Service Terms”. The Customer further agrees that:
(i) the Services are performed subject to the Microsoft Corporation’s terms and conditions for the hosting,
(ii) Ways does not guaranty Microsoft Corporation’s obligations pursuant to such terms and conditions, and
(iii) Ways cannot grant any additional terms in excess of what are offered by Microsoft Corporation.
2.4 Ways reserves the right to perform customarily maintenance, upgrades and updates of the Service during which time the Customer’s access to the Service may temporarily be limited. Ways will strive to give the Customer notice at least seven (7) days prior to any platform maintenance which will limit the Customer’s access to the Service, however, cannot warrant that such notice always can be made. To be noted is that general maintenance, upgrades and updates of the Service should not limit the Customers’ access to the Service and so far, no updates of the Service have resulted in any limitation for our Customer’s access to the Service.
2.5 No information, data or other content of the Customer (“Customer Data”) will be stored in the Service. The Customer Data is solely stored in the third-party systems interacting with the Services as described in the Service Descriptions.
3. CHANGES TO THE SERVICE
3.1 Ways reserves the right to make commercially reasonable changes to the Service, the Service Descriptions and to these Terms and Conditions. Such changes can affect the methods of operation, technical specifications, systems, opening hours, etc., of the Service. The changes can also be initiated due to amendments of laws or regulations, or decisions by government authorities.
3.2 Ways may terminate a Service in any country where Ways is subject to a government regulation, obligation or other requirement that is not generally applicable to businesses operating there.
3.3 If Ways makes material changes to the Service, these Terms and Conditions and/or any Service Descriptions, Ways will notify the Customer by posting a notice on the Ways web site thirty (30) days before the changes are effective. Continued use of the Service after any such changes shall constitute the Customer’s consent to such changes. If the Customer does not accept the change, the Customer has the right to terminate the Contract in writing to Ways. Unless such a notice of termination is received, the Customer is deemed to have accepted the new terms and conditions.
3.4 Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms and Conditions.
4. CUSTOMER’S OBLIGATIONS
Customer shall at all times fulfill the following obligations;
4.1 No Adverse Use. The Customer undertakes not to use the Service in such a manner that prevents or disrupts other computer communications or prevents or disrupts the equipment employed in order to provide and use the Service. The Customer shall not force any electronic barriers or locks which has been adapted for the purpose of protecting the Service. The Customer agrees not to access any information not publicly available or not intended for public use contained in the Service, or on any other third-party system connected to the Service. The Customer shall not change or in any manner circumvent the payment process measuring the Customer’s use of the Service. The Customer may further, not distribute the functionality, in whole or in part, of the Service as a packaged service if not expressly permitted in the Service Description.
4.2 Security Requirements, Guidelines. The Customer shall abide by any reasonable security requirements and guidelines stipulated by Ways for the Customer’s use of the Service.
4.3 Information Transfer, No Fraudulent or Illegal Use. It is the responsibility of the Customer to ensure that all Customer Data transferred through the use of the Service, complies with all applicable laws and regulations. The Customer shall further ensure that the use of the Service does not create damage for Ways or any third party.
4.4 Viruses. The Customer shall ensure that no viruses, worms, Trojan horses, time bombs, cancel bots or any other harmful, damaging or destructive programs or content are transmitted or caused to be transmitted by or on behalf of the Customer through the use of the Service.
4.5 Protection of Rights, No Infringement. The Customer agrees to comply with all reasonable requests by Ways to protect the respective rights of Ways in the Service and in the underlying software products. The Customer shall not at any time provide or use any content or other data with the Service which infringes or may infringe any third-party intellectual property rights and that before any such content and/or data is used, all rights, licenses and consents including any intellectual property rights, have been obtained and all requirements of law complied with as may be necessary to enable such content and/or data to be made available to the public.
4.6 Indemnity. The Customer undertakes to indemnify and hold harmless Ways for any loss or damage incurred as a consequence of the Customer’s use of the Service in breach of these Terms and Conditions.
5. USER SUPPORT
5.1 Ways will provide user support to the Customer as described in the Service Descriptions and through access to the Ways Webb Support function, which, to a reasonable extent, shall assist the Customer when problems arise with the utilization of the Service. In case of Defects in the Service, the Customer’s administrator is encouraged to report such Defects in the manner described on the Webb Support function. ”Defect” shall mean a deficiency in the Service, which causes the Service not to fulfill the Service Description applicable to such Service.
5.2 In addition to Ways Webb Support function and the support described in the Service Description, Ways offers customized support services for the Service on Ways’ terms and conditions for customized support services in effect from time to time.
6. FEES AND CHARGES
6.1 The Customer shall pay the subscription fees for the Service as stipulated by Ways in the official Ways Price List in effect from time to time (“Price List”), or if the Service is distributed through a Ways distributor or reseller, the fees stipulated by such Ways distributor or reseller.
6.2 Ways reserves the right to amend the Price List for any renewal term of the Service upon written notice to the Customer. Notice shall be given at such time allowing the Customer to terminate the Service at the expiration of the current term.
6.3 If the Service is distributed by a Ways distributor or reseller, the Customer agrees that the Ways distributor or reseller shall have the right to adjust the fees to reflect any adjustments in the Ways prices and that such Ways distributor or reseller is free to set its own fees for the Service.
6.4 All fees and charges are specified excluding VAT and any other taxes levied, which are to be paid by the Customer.
7. INVOICING AND TERMS OF PAYMENT
7.1 Ways invoices any start-up fees for the Service upon acceptance of the Customer’s order for the Service. Subscription fees shall be paid monthly in arrears starting from the first date when the Service is activated. Fees for customized support, if any, shall be paid monthly in advance.
7.2 Unless otherwise stipulated in the Price List, payment shall be made no later than thirty (30) days after the date of the invoice. In case of late payment, statutory interest on overdue payments will be charged as well as a reminder fee.
7.3 The Customer is obliged to immediately inform Ways of changes in the Customer’s company name, address, and, where applicable, charge card details or account number for direct debiting.
7.4 If the Service is distributed by a Ways distributor or reseller, payment shall be made according to such Ways distributor’s or reseller’s payment instructions.
8. CONFIDENTIAL INFORMATION
8.1 As used herein, “Confidential Information” means all non-public information, whether in oral, written or other tangible form that the party disclosing the information designates as being confidential or which, under the circumstances surrounding disclosure, the receiving party knows or has reason to know should be treated as confidential, including without limitation, the terms and conditions of the Contract.
8.2 The parties undertake not to disclose to any third party such Confidential Information as either party has received from the other party within the framework of the Contract entered into. However, each party has the right to utilize Confidential Information in meeting their obligations under the Contract. This undertaking shall also cover the employees and contractors of each of the parties. The undertaking applies without limitation in time and applies also after such time as all other contractual relations have ceased between the Parties.
8.3 Notwithstanding the above, upon approval from the Customer, Ways has the right to name the Customer as a customer for marketing purposes.
9. LIMITED WARRANTIES
9.1 Limited Warranty Service. The Service is provided “AS IS”, without express or implied warranties of any kind, including, but not limited to, the implied warranties and/or conditions of merchantability or satisfactory quality and fitness for a particular purpose. In the event of Defects that seriously impede the Customer’s use of the Services and that are attributable to Ways, Ways will try to rectify such Defects but cannot warrant that all Defects can be remedied or will be remedied within a certain time.
9.2 Warranty User Support, Operations and Maintenance. Ways warrants to the Customer that the User Support described in section 5 above and the Operations and Maintenance will be performed in a professional and workmanlike manner.
9.3 Warranties Exclusive. To the fullest extent allowed by applicable law, the warranties and remedies set forth in these Terms and Conditions are exclusive and in lieu of all other warranties or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including but not limited to warranties, terms or conditions of merchantability, fitness for a particular purpose and satisfactory quality, all of which are expressly disclaimed. Ways’ warranties herein run only to the Customer, and are not extended to any third parties which, for the avoidance of doubt, includes any agents or partners of the Customer. Ways neither assumes nor authorizes any other person to assume for it any other liability in connection with the use of the Service, the Support and/or the Operations and Maintenance and Ways makes no warranties or conditions whatsoever for any software and/or hardware used with the Service hereunder.
10. INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE
10.1 The Customer acknowledges and agrees that the Service does not include any grant of rights or license to the Ways software products, merely a right to use the functionality of such Ways software through the Service. All intellectual property rights in and to the Ways software used through the Service, in all languages, formats, and media throughout the world are vested in and the exclusive property of Ways and Ways’ licencors.
10.2 If Ways provides Ways software to the Customer, the Customer is entitled to use such Ways software only in conjunction with the Service until the time that the Customer’s connection to the Service is terminated, at which time the Customer is to immediately return the Ways software and any copies thereof to Ways.
10.3 Ways shall have the right, at its own expense, defend or settle any suit or proceeding that is instituted against the Customer to the extent such suit or proceeding alleges that any Services provided by Ways hereunder infringes any patent right or copyright of a third party, and shall pay all damages awarded therein against the Customer or agreed upon in settlement by Ways; provided that the Customer:
(i) gives Ways immediate notice in writing of any such suit, proceeding or threat thereof;
(ii) permits Ways sole control, through counsel of Ways’ choice, to answer the charge of infringement and defend and/or settle such suit; and
(iii) gives Ways all the needed information, reasonable assistance and authority, at Ways’ expense, to enable Ways to defend or settle such suit.
The above provision shall not apply to, and Ways shall have no liability or obligation for, any infringement arising from the following:
(i) any modification, servicing or addition made to the Services by anyone other than Ways;
(ii) the use of such a Services as a part of or in combination with any devices, parts or software not provided by Ways;
(iii) compliance with the Customer’s design requirements or specifications; or
(iv) the use of such Services to practice any method or process which does not occur wholly within the Services or
(v) any use of the Services outside the scope of the rights granted by Ways, and
(vi) any Non-Ways software.
This exclusion applies to the extent that the infringement would have been avoided but for such modification, combination, compliance with specifications, use of other than the current release, or practice of such method or process. In the event the use of any Services purchased from Ways be enjoined, or if Ways believes the Services infringes or is likely to infringe any third party rights, or in the event Ways wishes to minimize its potential liability hereunder, Ways may, at its sole option and expense and without any cost or harm to the Customer:
(i) procure for the Customer the right to use such Services;
(ii) modify such Services so that it no longer infringes but remains functionally equivalent; or
(iii) if none of the foregoing are commercially feasible, terminate the Services and refund the any pre-paid fees.11. LIMITATION OF LIABILITY
11.1 In no event shall Ways be liable for indirect, incidental, special, punitive, consequential, or exemplary damages of any kind whatsoever.
11.2 Further, regardless of the form of the action, whether in contract, tort (including negligence), strict liability or otherwise, even if it has been advised of the possibility of such damages, in no event shall Ways ‘s liability extend to:
(i) malfunctions caused as a result of the Customer’s use of the Service with equipment, software or accessories other than those prescribed by Ways;
(ii) malfunctions arising as a result of the Customer’s use of the Service in a manner other than described in the Service Descriptions or caused as a result of alterations or internal adjustment of the Service by the Customer not in accordance with the Ways’ instructions, or negligence on the part of the Customer, his staff or a third party, or as a result of other circumstances beyond the control of Ways;
(iii) any malfunctions due to the fact that the Customer has provided erroneous or incomplete information to Ways;
(iv) any unavailability or disturbance of the Customer’s access to the Internet;
(v) loss of or recovery of data, or any costs of reprogramming or reproducing any software program, the Customer Data stored in or used with the Services, or any damages caused by corrupt or inadequate the Customer Data and/or data arising out of or in connection with the use of the Service;
(vi) operational disruption or errors that impede data traffic;
(vii) any third party’s unauthorized impact on the Service or
(viii) inadequate or lack of back up of the Customer Data.
11.3 Ways’ maximum total aggregate liability under this Agreement (regardless of the form of action, whether in contract, tort, or otherwise and howsoever caused including by negligence) for any claim shall not exceed one hundred percent (100%) of the amount actually paid by the Customer to Ways during the thirty (30) day period preceding the event or series of related events to which such specific claim relates. This limitation shall survive and apply even if any limited warranty or remedy hereunder is found to have failed of its essential purpose.
11.4 This section 11 shall not exclude or limit any liability caused by gross negligence or willful misconduct. The remedies set forth in Contract shall be the Customer’s sole and exclusive remedies for any breach of this Contract by Ways.
11.5 Ways shall have no liability unless the Customer gives notice to Ways without undue delay after the date the Customer became aware of the circumstances giving rise to the claim or the date when it ought reasonably to have become so aware. Claims for compensation cannot be advanced unless the action is brought within one (1) year from the date on which the Customer had, or ought to have had, knowledge of the circumstance on which the action is based.
11.6 This disclaimer of liability will not be affected if any remedy provided herein fails of its essential purpose and shall be effective to the fullest extent permitted by applicable law.
12. TERM AND TERMINATION
12.1 Term. The Service shall commence on the date when the Service is made available to the Customer and shall, unless terminated as provided for below, continue for the duration stipulated in the Price List for such Service.
12.2 Termination without Cause. Each party can terminate the Service with the notice periods stipulated in the Price List for the respective Service. Absent termination the Service will be renewed for the respective renewal terms stipulated in the Price List.
12.3 Termination with Cause. In addition hereto each Party is entitled to terminate this Contract at any time if:
(i) is in breach of its obligations hereunder including remitting payments when due, and fails to cure such breach within ten (10) days following written notice of such breach,
(ii) is in material breach of its obligations hereunder which cannot be cured, or
(iii) becomes insolvent or files or has filed against it a petition under applicable bankruptcy or insolvency law, makes an assignment for the benefit of creditors or takes any similar action under applicable bankruptcy or insolvency law.
12.4 Suspension. Ways shall have the right to suspend the Customer’s use of the Service if:
(i) The Customer despite demand, do not timely pay the agreed subscription fees,
(ii) The Customer utilizes the Service in a manner that entails a violation of Swedish or foreign law or regulations or
(iii) The Customer is in breach of any of the Customer’s obligations pursuant to section 4 above. Despite the suspension of the Service, the Customer shall be under the obligation to pay subscription fees for the Service until the termination or expiration of the term.
13.1 Force Majeure. If either party is prevented from performing as a result of circumstances beyond his control which he could not reasonably have been expected to foresee at the time of entering into the Contract and whose consequence he could not either reasonably have avoided or overcome or as a result of his sub-supplier being prevented from supplying goods or services due to the circumstances here stipulated, this shall constitute grounds for discharge involving an extension of the time limit for performance and release from liability to pay liquidated damages and other consequences. This shall apply regardless of whether the cause of the delay occurs prior or subsequent to the agreed delivery date. If execution of the Contract is substantially hindered for more than six (6) months as a result of certain circumstances stipulated above, either party shall be entitled to withdraw from the Contract by giving the other party written notice of such withdrawal. In such case Ways shall be entitled to payment for work done and other costs incurred up to the date of notice being given that this clause 13.1 is being invoked. In connection therewith, Ways is under a duty to report and deliver the result of work done no later than the date when payment is made. If either party finds that circumstances mentioned in the first paragraph above exist, he shall inform the other party in writing of this fact without delay.
13.2 Assignment. The Customer shall not assign or delegate any of its rights, duties or obligations hereunder without the prior written consent of Ways. Any attempt to do so without such consent is void. Ways may assign the Contract or its rights, interests and obligations hereunder to another party in connection with a merger with or acquisition by or sale of all of its assets, or to an affiliated company. A person who is not a party to these Terms and Conditions has no right under these Terms and Conditions.
13.3 Amendments. No amendment to or modification of these Terms and Conditions will be binding unless in writing and signed by a duly authorized representative of both parties. The terms of these Terms and Conditions will also supersede the terms in any Customer purchase order or other form of ordering document, and any pre-printed terms and conditions or additional terms and conditions contained on any purchase order or other form of ordering document will be considered deleted.
13.4 Waivers. No waiver of any default shall be effective unless it is expressly evidenced in written form signed by Ways and the Customer. The waiver of any one default shall not waive subsequent defaults of the same or different kind or continuing defaults after demand for strict compliance.
13.5 Severability. In the event that any provision of the Contract shall be held by a court of competent jurisdiction or an administrative authority of either international or national jurisdiction to be invalid or unenforceable, the remaining portions of the Contract shall remain in full force and effect and be construed so as to best effectuate the intention of the parties in executing it.
13.6 Governing Law and Arbitration. The Contract shall be governed by and construed in accordance with the laws of Sweden excluding its conflict of law provisions. Any dispute claim or controversy arising out of or in connection with the Contract that cannot be settled amicably by the parties shall be settled by arbitration in accordance with the rules of the Arbitration Institute of the International Chamber of Commerce. The arbitral tribunal shall be composed of one arbitrator, the place of arbitration shall be Stockholm and the language to be used in the arbitral proceedings English.
13.7 Notices. All notices and demands of any kind which either Ways or the Customer may be required or wish to serve upon the other under these Terms and Conditions shall, unless otherwise stated in these Terms and Conditions, be in writing and shall be served by personal service, by fax or by recorded delivery post at the address of the receiving party set forth in the Contract (or at such different addresses as may be designated for such purpose by such party by written notice to the other party); all notices or demands given by personal service shall be effective upon receipt, all notices or demands given by fax or post shall be deemed given upon sending. All notices should be in English.
13.8 Survival. Sections 4.6, 8, 10.1, 10.2, 11, this section 13.8 and any other provision whose continuance is necessary to achieve its essential purpose will survive any termination of these Terms and Conditions.