1.1.The agreement is entered into between the parties via the Customers choices (”the Order”) on Asurgent´s homepage, referred exhibits and the terms and conditions contained in this document (jointly hereinafter referred to as “the Agreement”).
1.2.These terms and conditions (“the Standard Agreement”) and exhibits or other documents referred to herein constitute an integral part of the Agreement. In event of a conflict between the terms of any documents and this Standard Agreement, the terms of this Standard Agreement shall take precedence.
Agreement: The Order including exhibits and the Standard Agreement, including any future change or amendment thereto.
Order: Services ordered by the Customer in writing.
Customer The subject that executes the Order and thereby enters into the Agreement with Asurgent..
Customer Data: Data or other information provided by the Customer, or upon Customers´ request, to Asurgent including results from Asurgents handling of Customer Data.
Services: The services that are provided by Asurgent from time to time.
3.1.Asurgent will provide the Services subject to the terms of the Agreement.
3.2.Asurgent will perform the Services in accordance with good industry practise using methods and standards applied by Asurgent for the Services from time to time.
4.1.To make possible Asurgent´s provision of the Services, Customer undertakes to:
- Continously, (1) to provide to Asurgent information relevant to the provision of the Services and (2) to make available to Asurgent Customer´s systems
- ascertain that Asurgent can and is granted the right to use any software necessary for the provision of the Services.
- inform Asurgent of any and all circumstances, related to Customer´s or third party´s business, that may affect or influence the provision of the Services and warrant that provided information is complete and correct.
- ascertain by use of reasonable care that Customer´s or third party´s software or equipment is complete and does not contain virus, wrongful or harmful code, other damageable code or other incompleteness. Despite incompleteness, damageable code or other lack Asurgent undertakes to provide the Services to the extent possible using reasonable efforts and to inform Customer of the situation.
- ascertain that only approved usera will use the Services ant that log in information and other information provided by Asurgent is handled with care and in accordance with the confidentiality undertaking in provision 12 below.
5.PROVISION OF SERVICES
5.1.Asurgent will make the Services available to the Customer on the date agreed between the Parties.
6.1.Asurgent may undertake changes and/or amendments to the Services without prior notice to the Customer if, in Asurgents reasonable opinion, required as a consequence of changes and/or amendments in a third party deliverer´s software, material or provisions. Such third party deliverer at the time being Microsoft.
7.FEE AND PAYMENT
7.1.The Customer agrees to pay Asurgent the fee applicable in Asurgent´s pricelist from time to time. The fee is payable from the date the Service is made available to the Customer. Asurgent may adjust the fee every six (6) month upon two (2) months prior notice to the Customer. Such Adjustments of the fee is subject to amendments and/or changes in terms with a third party deliverer to Asurgent.
7.2.Payment against invoice monthly 30 days net for
– CloudOps Engine in arrears
– CloudOps Governance in advance
7.3.For delayed payments interest will accrue in accordance with Swedish law. If the Customer is in delay with payment Asurgent may discontinue the provision of the Services upon a notice informing Customer that the Services may be discontinued if the invoice is not paid within thirty (30) days. The Services will be provided again upon payment of the entire amount outstanding.
8.INTELLECTUAL PROPERTY RIGHTS ETC.
8.1 Asurgent and/or Asurgent´s software providers remain owner to the Service, or parts thereof, including any intellectual property rights contained therein.
8.2 Should a third party claim that its intellectual property rights are infringed due to Customers use of the Services, Asurgent undertakes to defend such claim provided, that Customer promptly gives Asurgent written information of such claim and, at Customers own expense, provides Asurgent with information and assistance that Asurgent deemes necessary and further provided that Customer gives Asurgent sole control of the defense and all related settlement negotiations.Upon request Customer handle its own defense.
8.3 Customer represents that it helds all permits and rights necessary for Asurgents to provide the Services.
8.4 Customer shall indemnify and hold Asurgent harmless (including compensation for legal advice, direct and indirect samages) for all claims, suits or other allegations raised by a third party claiming that the provision or the Services, in whole or part, constitute an infringement in third party rights due to Asurgent´s use of software or material provided by the Customer.
9.1 In case the Parties have agreed on service levels (SLA) applicable to the Services.
9.2 Asurgent undertakes without unnecessary delay to inform Customer if the actual service essentially deviate, or will deviate as known by Asurgent, from the agreed service level.
10.1 Customer remains the sole owner to Customer data. Asurgent may use Customer data for or in relation to the provision of the Services.
10.2 Customer is responsible for and undertakes to indemnify and hold Asurgent harmless as a result of Customer data infringing third party rights or otherwise being in breach of any applicable law.
11.1.Should personal data be used in the Services then the Customer is controller and Asurgent processor. As controller the Customer is responsible to ensure that the treatment of personal data does comply with applicable personal data legislation. Asurgent undertakes to handle personal data in compliance with the Agreement and Customers written instructions. Asurgent is entitled to compensation if Customers written instructions does not follow from the Agreement. Further Asurgent is entitled to compensation for extra costs incurring from adjustments or changes necessary to comply with a decision from a public authority regarding enforcement of personal data legislation etc.
11.2.Asurgent underakes to inform Customer as soon as possible after Asurgent is aware of any unauthorized acces or attempts to access, destroy or change personal data for which the Customer is controller.
12.1.Each of the Parties hereto undertake to safeguard the other Party´s Confidential Information (defined below) as set out below
12.2.Confidential Information shall mean any information – technical, commercial, administrative of any kind – that is provided or has been provided to a Party from the other Party, other entities within the same group as such Party or representatives or advisors to the Party, irrespective of such information having been documented or not, including but not restricted to information concerning the Service including related know-how, work in progress or any other information disregarded the form of disclosure provided such disclosure or use may damage the other Party (Confidential Information).
Confidential Information shall not include:
- Information being in the public domain or which after disclosure becomes part of the public domain, other than as a result of a breach of this Agreement, or
- Information that a Party can prove to have known prior to receipt thereof from the other Party, or
- Information disclosed by a third party without obligation of confidentiality providied that the receiving Party can provet hat such information was received without a burden of confidentiality, or
- Information that the receiving Party is entitled to reveal by a document in writing signed by the other Party.
12.3.The Parties hereto undertakes at all times to treat Confidential Information confidentially and not to use or reveal such information for any person other than person that have a need to know such information for the fulfillment of this agreement. Each Party represents that such persons will threat Confidential Information in accordance with the provisions of this Agreement. Each Party undertakes to ensure that persons to whom Confidential Information is revealed are bound by confidentiality undertakings not less restrictive than this Agreement and undertakes full responsibility for such persons compliance with the confidentiality undertaking.
12.4.Each Paarty undertake only to use Confidential Information for the purpose of fulfilling the purpose of the Agreement.
12.5.Neither Party may copy or reprint, in whole or part, material that contain or may reveal Confidential Information, or in any other way document Confidential Information, disregarded method or format, unless such use is necessary to fulfill the Agreement, and then only to the extent and person entitled to receive such information.
12.6.Upon a Parties written request subsequent to termination of the Agreement, Confidential Information that has been documented shall within thirty (30) days from receipt of such request, either (i) be returned to the other Party, or (ii) be disposed of permanently, as requested by the other Party.
12.7.The obligations concerning Confidential Information shall survive for an indefinite period of time. Hence, the obligations regarding Confidential Information will survive the termination of the Agreement disregarded the cause for termination.
12.8.The obligations concerning Confidential Information shall not hinder a Party to reveal such information to the extent required to be disclosed by legal process, applicable laws, regulatory bodies, stock exchange or other marketplace regulations.
13.CARE OF THE SERVICE AND LIMITATION OF LIABILITY
13.1.Upon receipt of a notice of malfunction or upon being aware of a malfunction or other fault in the Service Asurgent undertake to use best efforts to correct the fault as soon as possible considering the circumstances in each particular situation. If the fault has caused a substantial breakdown of the Services resulting in permanent and material problems to use the Service, the Customer is entitled to price reduction for the period of the permanent and material fault as full and final compensation (under provision 7 above) for the event occurred, however such compensation being subject to Customers prior notice of such fault.
13.2.Asurgent´s obligation to handle faults under this provision 13 is subject to Customer´s notice to Asurgent within reasonable time from Customer´s discovery of the fault and such notice containing a description of the fault, its effects and how it appears.
13.3.Full and final compensation for Asurgent not meeting agreed service levels will be paid be a reasonable reduction of the price payable by Customer under provision 7 above.
13.4.Asurgent´s obligation to correct faults and agreed service levels does not include faults or services caused by:
- circumstances for which the Customer is responsible,
- circumstances being outside the scope of the Service,
- virus or other other threat on the safety outside Asurgent´s control.
13.5.Should, however, a fault or non-compliance with agreed service levels occur or be caused by Asurgent´s intent or gross negligence the Customer may claim damages for incurred damage, however limited by provision 14 below.
14.LIMITATION OF LIABILITY
14.1.If the fulfillment of any of the parties’ obligations under this Agreement is impeded by circumstances beyond their control, including but not limited to lightning, labour conflict, fire, natural hazard, government regulations, power cuts, delayed or disrupted services from suppliers (force majeure), the party subject to the events of force majeure shall be relieved from performing its obligations until such events of force majeure are resolved. Either party may terminate this Agreement in writing in the event that the force majeure continues for a period of more than two (2) months. This provision does not relieve either party of its obligation to make payments then owing.
14.2.Each partys liability is limited to direct damages and incurred losses (unless otherwhere expressly said otherwise), hence neither Party will pay damages resulting from indirect damages, loss of profit, loss of data or other indirect damage or loss. The limitations herein does not apply to provision 8, 10.2 or 12 or if a damage is caused by intent or gross negligence.
15.1.The Agreement apply from the date set out on Asurgents web page or upon signing in original by both Parties until terminated by either Party by giving 60 days prior written notice.
15.2.The Customer may at any time reduce its use of Services by giving Asurgent knowledge thereof. Corresponding reduction in price does apply upon such reduction of use of Services.
16.PRE TERM TERMINATION
16.1.The Agreement can be terminated with immediate effect by either Party;
- upon a material breach of contract by the other Party, or
- if the other party does not comply with its obligations in the Agreement and fails to remedy such breach of contract within 30 days from receipt of written notice to remedy such breach from the other Party, or
- if the other Party has suspended its payments or otherwise reasonably can be assumed to be insolvent, or
- A Party is entitled to terminate the Agreement with immediate effect according to the Agreement.
16.2. A termination is only valid if made in writing.
17.OBLIGATIONS UPON TERMINATION
17.1.Upon termination of the Agreement Each Party shall return the other Party´s information, data and software without undue delay.
18.DISPUTE RESOLUTION AND GOVERNING LAW
18.1 This Agreement shall be governed and construed by Swedish law, without regard to any laws that would otherwise apply under applicable choice of law principles.
18.2 Any dispute arising under, out of or in any way connected with the Agreement shall be referred to and finally settled by arbitration in accordance with the Rules for Expedited Arbitration at Arbitration Institute at the Stockholm Chamber of Commerce. The place for arbitration shall be Stockholm and the language used shall be English.
18.2 The Parties undertake, without limitation in time, without due cause not to reveal:
- the existence or result from an arbitration due to the Agreement,
- information regarding negotiations, arbitration or mediation due to the Agreement, or
- decision or ruling that has been delivered by the arbitrators due to the Agreement.