SERVICE AGREEMENT

PLEASE READ THIS SERVICE AGREEMENT CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO” OR SIMILAR ACCEPTANCE INDICIA, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

This Service Agreement (“Agreement”) constitutes a binding agreement between you (“Customer” “You” “Your”) and  Qinematic AB, (“Company”) granting You limited rights to access and use certain Company Software for which You have completed a product Order and fully paid the corresponding fee due to Company. Your Order is subject to this Agreement. No Orders are binding on Company until accepted by Company. This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” or otherwise provides indicia of acceptance (the “Effective Date”). Customer’s use of and Company’s provision of Company’s System (as defined below in Section 1.5) are governed by this Agreement.

1.DEFINITIONS

The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1.      “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.

1.2.      “Documentation” means Company's standard user guide related to use of the System.

1.3.      “Order” means an order for access to the System, executed through the Company, its agents and affiliates via a standard Company order form.

1.4.      “Privacy Policy” means Company’s privacy policy, currently posted at qinematic.com/legal.

1.5.      “System” means Company’s Moovment Pro web application.

1.6.      “Support Services” means Company’s support service as published in Company’s Support Services Addendum, currently posted at qinematic.com/legal.

1.7.      “Term” is defined in Section 11.1 below.

1.8.      “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.

1.9.      “Customer” means any individual, guardian, organisation, service provider, associate or affiliate who rightfully uses the System.

2.THE SYSTEM

2.1.      Use of the System. During the Term, Customer may access and use the System pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.

2.2.      Service. Company shall provide the support options listed in the Support Services for any service disruption of the System listed in the Support Services. Such support remedies are Customer’s sole remedy for any disruption or failure of the System, and Customer recognizes and agrees that if the Support Services does not list a remedy for a given failure, it has no remedy. Company is not required to issue refunds or to make payments against credits under any circumstances, including without limitation after termination of this Agreement.

2.3.      Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.

2.4.      System Revisions. Company may revise System features and functions or the Support Services at any time, including without limitation by removing such features and functions or reducing service levels.

3.PAYMENT

3.1.      Subscription Fees. Customer shall pay Company the fee set forth in each Order (the “Subscription Fee”) for each Term. Subscription Fees are usually paid via online payment in advance and on a recurring basis, with additional fees accrued for additional services used during any given period. Company’s invoices are due within 30 days of issuance. For late payment, Customer shall pay interest charges from the time the payment was due at the rate of 1.5% per month. Company will not be required to refund the Subscription Fee under any circumstances.

3.2.      Taxes. Amounts due under this Agreement are payable to Company without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Company the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Company’s net income.

4.CUSTOMER DATA & PRIVACY

4.1.      Use of Customer Data. Unless it receives Customer’s prior written consent, Company: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Company’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Company shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. As between the parties, Customer retains ownership of Customer Data.

4.2.      Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third-party website or service linked to the System or recommended or referred to through the System or by Company’s staff. Company’s Privacy Policies, can be found at qinematic.com/legal.

4.3.      Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.4.      Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.

4.5.      Data Deletion. Company may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more. End-User Customer may delete their account at any time, and data will be permanently deleted. Health service providers that were granted access rights to the data by the End-User have 14 days to export copies of reports for their own records, if so required to do so by law.

4.6.      Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Company's computers or other media, any data (“Excluded Data”) regulated pursuant to the Health Insurance Portability and Accountability Act or the General Data Protection Regulation of the European Union (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) COMPANY HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) COMPANY’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

4.7.      Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Company may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)

5.CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS

5.1.      Acceptable Use. Customer shall comply with the terms of this Agreement. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Company may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Company may have. This Agreement does not require that Company take any action against Customer or any User or other third party for violating this Section 5.1, or this Agreement, but Company is free to take any such action it sees fit.

5.2.      Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Company immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

5.3.      Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

5.4.      Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the Acceptable Use Policy (AUP) or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.

6.IP & FEEDBACK

6.1.      IP Rights to the System. Company retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.

6.2.      Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)

7.CONFIDENTIAL INFORMATION

“Confidential Information” refers to the following items Company may disclose to Customer: (a) any document Company marks “Confidential”; and (b) any Documentation or other materials provided to Customer as part of the Support Services whether or not marked or designated confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Company’s valuable trade secrets.

7.1.      Nondisclosure. Customer shall not use Confidential Information for any purpose other than in support of its permitted use of the System (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Company’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Company of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Company prompt notice of any such legal or governmental demand and reasonably cooperate with Company in any effort to seek a protective order or otherwise to contest such required disclosure, at Company’s expense.

7.2.      Injunction. Customer agrees that breach of this Article 7 would cause Company irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Company will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3.      Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) related to Confidential Information constituting Company’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Company or certify, in writing, the destruction thereof.

7.4.      Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Company will retain all right, title, and interest in and to all Confidential Information.

8.REPRESENTATIONS & WARRANTIES

8.1.      From Company. Company represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the System set forth in this Agreement without the further consent of any third party. Company’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Company. In the event of a breach of the warranty in this Section 8.1, Company, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Company’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.

8.2.      From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

8.3.      Warranty Disclaimers. Except to the extent set forth in the Support Services and in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

9.INDEMNIFICATION

Customer shall defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Company’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Company Associates” are Company’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

10.LIMITATION OF LIABILITY

10.1.  Dollar Cap. COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE PRICE PAID BY CUSTOMER TO COMPANY FOR THE PRECEEDING 3 MONTHS OF SERVICE.

10.2.  Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL COMPANY BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.3.  Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 10 apply likewise to Company’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

11.TERM & TERMINATION

11.1.  Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one year. Thereafter, the Term will renew for successive one-year periods, unless either party refuses such renewal by written notice 90 or more days before the renewal date for annual subscriptions, and 31 days or more for monthly subscriptions.

11.2.  Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.

11.3.  Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

12.MISCELLANEOUS

12.1.  Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

12.2.  Notices. Company may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to the Company contact channels available at qinematic.com/about, and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that Company will terminate the accounts of subscribers who are repeat copyright infringers.

12.3.  Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

12.4.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5.  Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6.  No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7.  Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the laws of Sweden. The parties consent to the personal and exclusive jurisdiction of the courts of Sweden. This Section 12.7 governs all claims arising out of or related to this Agreement.

(a)       Any dispute controversy or claim, contractual or non-contractual, arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall first be referred to Mediation in accordance with the Mediation Rules of the Stockholm Chamber of Commerce (the SCC Institute) and the parties by signing this agreement consent to such mediation and if the Mediation is terminated the dispute controversy or claim, contractual or non-contractual, 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 SCC. The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its own discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC shall also decide whether the arbitral tribunal shall be composed by one or three arbitrators.

(b)      The venue for the proceedings shall be Stockholm, Sweden unless the parties agree in writing to a different venue. The proceedings shall be held in the English language.

(c)       The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking will cover all information disclosed in the course of 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, in any form, be disclosed to a third party without the written consent of the other Party and may not be used for any purpose other than the performance of the arbitral proceedings. This notwithstanding, a Party will not be prevented from disclosing such information in order to safeguard in the best possible way its rights in connection with the dispute, or if obligated to do so pursuant to a valid order or judgment issued by a court, arbitrators or any other governmental body having jurisdiction over this Agreement.

12.8.  Conflicts. In the event of any conflict between this Agreement and any Company policy posted online, including without limitation the Support Services Addendum or Privacy Policy, the terms of this Agreement will govern.

12.9.  Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any local law or regulation; or (b) export any software provided by Company or otherwise remove it from their country of residence except in compliance with locally applicable laws and regulations. By using the system, you are agreeing that you are not in a country where such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of content.

12.10.      Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

12.11.      Amendment. Company may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Company written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.

12.12.      Revision. Company may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.12.