NOTIFICATION

The ‘Moovment Suite’ of installed Software and Software as a Service (SaaS) consists of Moovment Scan, Moovment Lab and Moovment Pro. Customers subscribing to the installed Moovment Scan and installed Moovment Lab licenses must review and agree to this End-User Licence Agreement (EULA). Customers subscribing to the Moovment Pro web application, also known as the ‘Moovment Pro Portal’ SaaS, must review and agree to the Service Agreement. We advise all Customers to review and agree to the Privacy Policy, Support Services Addendum, Data Processing Addendum and Service Agreement before using the www.qinematic.com or www.moovment.pro websites or any other Services provided by Qinematic and its service companies.

THIS END USER LICENSE AGREEMENT (EULA) IS FOR AMERICAN CUSTOMERS ONLY.

PLEASE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING AND USING SOFTWARE. BY CLICKING “ACCEPTED AND AGREED TO” OR SIMILAR ACCEPTANCE INDICIA, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

Please read this End ­User License Agreement ("Agreement") carefully before signing any sales agreements, downloading or using Qinematic’s Moovment Scan or Moovment Lab installed software (“Software” or "Application"). By downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement.

If you do NOT agree to the terms of this Agreement, do not download or use the Application.

END-USER LICENSE AGREEMENT - USA CUSTOMERS

This End-User License Agreement (this “Agreement”) is a binding agreement between you (“Customer” “You” “Your”) and Qinematic AB, Reg. No.: 556890-1903, address: Tunavägen 19, 18641 Vallentuna, Sweden(“Company”) granting You limited rights to 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 EULA. No Orders are binding on Company until accepted by Company. Orders are deemed to be accepted upon Company’s delivery of the Software included in such Order to the Customer.

BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE THAT YOU PAID FOR THE SOFTWARE.

TERMS AND CONDITIONS

1.DEFINITIONS

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

1.1.      “Defined Purpose” means any of the following: (a) the collection, evaluation and monitoring of health and fitness data of individuals, (b) the education of such individuals in the fields of physical activity, proper execution of movements, and exercise, (c) the prescription, monitoring, and evaluation of exercises, movements, and training for such individuals; in each case in pursuit of optimal health, wellbeing and performance of such individuals (physical persons).

1.2.      “Documentation” means the Software’s standard user manual as provided by Company to Customer.

1.3.      “Intellectual Property Rights” means all and any intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights, rights in designs, inventions, improvements, utility models, logo, service mark, discoveries, creations or similar).

1.4.      “Notice of Termination” is written notice of a cancellation of the Agreement.

1.5.      “Notice Period” means the notice period for cancelling a subscription of the Software, which shall commence on the first day following the end of the subscription period in which the Notice of Termination was delivered to the addressing Party.

1.6.      “Order” means Customer´s order for access to the Software, generally executed through the Company, its agents and affiliates via a standard Company order form including, but not limited to, online orders via the Company website/s (e.g. https://www.moovment.pro/subscribe).

1.7.      “Parties” mean jointly the Company and the Customer, while “Party” shall mean any of them.

1.8.      “Sales Agreement” means the terms and conditions applicable to the subscription of the Company’s software and services.

1.9.      “Software” means Company’s (on-premise) Moovment Scan software or Moovment Lab software, in executable format, as seen on the www.moovment.pro website, and that is installed by the Customer on its computer device.

1.10.      “Service Agreement” means the terms and conditions applicable to the subscription of the Company’s Software as a Service Application called “Moovment Pro”.

1.11.      “Support Services” means the Company’s support service as published in Company’s Support Services Addendum, currently posted at www.qinematic.com/legal, as may be amended from time to time by Company at its sole discretion.

1.12.      “Territory” means the country in which the Customer resides and from which they operate their business.

1.13.      “Term” is defined in Section 9.1 below.

1.14.      “Upgrade” means any and all new versions, updates, upgrades, adaptations, enhancements, derivative or supplementing works and other changes made to the Software, whether made by Company or Customer or any third party.

2.LICENSE GRANT

2.1.      License. Company hereby grants Customer a paid (for the applicable subscription fee), territorially limited, non-exclusive, non-sublicensable, time-limited (i.e. for the duration of the Term), non-transferrable and revocable license to use one copy of the Software, provided that Customer complies with the restrictions set forth in Section 2.2 below. This license is limited and shall allow Customer to use one copy of the Software only for the Defined Purpose and only within the Territory.

2.2.      Restrictions on Software Rights. Any copy of the Software provided to the Customer pursuant to this Agreement is licensed solely within the scope of the license as stated in Section 2.1 above, and thus the Software shall by no means whatsoever be deemed to be sold, assigned or otherwise transferred to ownership of the Customer. Customer receives no title to or ownership of any copy or of the Software itself. Without limiting the generality of the foregoing, Customer shall not: (a) interfere with the Software, change or modify it, customize it, create derivative works from it, distribute it, tamper it, alter it, repair it, disassemble, decompile it, or sublicense any part of the Software; (b) use any part of the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive or discover any part of the Software, including Software’s source code.

2.3.      Documentation. During the Term, the Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.

2.4       Purpose of Restrictions. The restrictions contained in the Section 2.2 and Section 2.3 are intended to provide Company with the utmost protection and control over the Software, Documentation, and its associated intellectual property, precluding any unauthorized use, duplication, dissemination, or any other form of infringement of the Company’s Intellectual Property Rights.

2.5.      Customer agrees that breach of this Article 2 constitute a material breach of the Agreement.

3.IP, FEEDBACK, SOFTWARE DATA, AGGREGATED STATISTICS, KNOW-HOW

3.1.      IP Rights in the Software. Company retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (Licenses), 2.3 (Documentation). Company's ownership rights also include any and all data, algorithms, interfaces, and other technical or operational specifics that are created, derived, or generated from the use or application of the Software by the Customer. Customer recognizes that the Software and its components are protected by copyright and other laws.

3.2.      Feedback. Customer hereby grants Company a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) that Customer communicates to Company during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Company’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way. Notwithstanding the provisions of Article 4 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Company’s products or services, including without limitation all Intellectual Property Rights in any such suggestion or idea.)

3.3.      Software Data. All data and databases created or obtained by the Customer as a result of the utilization of the Software under the License during Term (including its contractors, employees, or any other party the Customer involves in the utilization of the Software), shall be deemed the intellectual property of the Company to the fullest extent permitted under applicable laws ("Software Data"). If any such Software Data is not automatically recognized as the intellectual property of the Company under the applicable laws, the Company agrees to promptly take all necessary actions, including but not limited to executing any required documentation, to ensure the full and complete assignment of all Intellectual Property Rights therein to the Company. Failure to comply with this provision shall constitute a material breach of this Agreement. Software Data shall be considered the Company’s Confidential Information, and shall be stored and used by the Company in an anonymized manner and aggregated manner.

3.4.      Without prejudice to Section 9.5., upon termination of the Agreement (whether by expiration of the Term, termination for a cause, or otherwise), the Customer shall, without undue delay, secure the assignment of all Intellectual Property Rights to the Software Data to the Company. Following the completion of these obligations, the Customer is further obliged to delete, without reservation or delay, all instances of the Software, Documentation, Software Data from its own technical equipment, online repositories, servers, and any other storage medium under its control or access. If obliged to do so by law, such as in compliance with the retention of personal health information (PHI), the Customer may make and retain an external copy of reports via the reporting feature in the Software.

3.5.      Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, the Company may monitor the use of the Software and collect, and compile data and information related to the Customer's use of the Software as well as use them for its own purposes in an anonymized manner and aggregated manner (“Aggregated Statistics”). All rights, titles, and the likes relating to Aggregated Statistics, and all Intellectual Property Rights (if any) therein, shall belong to and be retained solely by the Company.

3.6.      Know-How. the Company retains ownership and the right to reuse all basic development, program and/or design components, modules, works and elements of the Software that are reusable and that have been created by the Company and/or the Customer as a result of the Parties’ cooperation under the Agreement, as well as related know-how, improvements and/or modifications of the above (the “Know-How”). All rights, titles, and the likes relating to the Know-How, and all Intellectual Property Rights (if any) therein, shall belong to and be retained solely by the Company.

4.CONFIDENTIAL INFORMATION

4.1.      “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 subscription of the Software and/or provision of the Support Services whether or not marked or designated confidential; and (c) any information about the Software and/or information, communication or other materials created under or in (direct/indirect) relation to the Agreement whether or not marked or designated confidential. Notwithstanding the foregoing, Confidential Information does not include the Company’s information that: (i) is provably 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 Company. Customer is on notice that the Confidential Information may include Company’s valuable trade secrets.

4.2.      Non-disclosure. Customer shall not use Confidential Information for any purpose other than in support of its permitted use of the Software (i.e. namely the Defined Purpose) (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 4; 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.

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

4.4.     Injunction. Customer agrees that breach of this Article 4 constitute a material breach of the Agreement, which 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.

5.SOFTWARE AUDIT

5.SOFTWARE AUDIT

5.1.      During the Term of this Agreement and at any time during the following 12 months following the termination of the Agreement, Company may audit Customer’s use of Software on 24 hours advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to the use of Software. Such audit shall not unreasonably interfere with Customer’s business activities. If Company discovers unauthorized use, reproduction, distribution, or other exploitation of the Software, Documentation and/or any other Intellectual Property Rights of the Company, the Customer shall reimburse Company for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Company may have. Company may not conduct an audit more than once per year.

5.2.      Following the termination of the Agreement, the Company may also audit the Customer’s fulfillment of his obligations under Section 3.4. and Section 9.5. of the Agreement.

6.REPRESENTATIONS & WARRANTIES

6.1.      From Company.

a)     Re Function. Company represents and warrants that, during the Term the Software will perform materially as described in the Documentation provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Company.

b)    Re Intellectual Property Rights in the Software and Documentation. Subject to the next sentence, Company represents and warrants that it is the owner of the Documentation and the Software 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 Intellectual Property Rights to the Documentation and the Software set forth in this Agreement.

6.2.      From Both Parties. Each Party represents and warrants that 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.

6.3.      Company’s Software Warranty Disclaimer. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS SUPPLIED ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHER.

6.4.      From the Customer. The Customer hereby represents and warrants to the Company that it shall ensure that any party engaged in the usage of the Software and/or any other related Intellectual Property Rights of the Company, including but not limited to contractors, employees, or any other third party, shall conclude an agreement, on terms acceptable to the Company, whereby such third party expressly assigns or (exclusively) licenses all relevant Intellectual Property Rights to the Company regarding the intellectual property such party creates in relation to and/or as a result of the utilization of the Software under the License (or ensures that such Intellectual Property Rights are transferred to the Company by any other means). The Customer further warrants that it shall take all necessary steps to enforce compliance with such agreements by such third parties. The Customer shall indemnify and hold harmless the Company from any and all claims, damages, losses, liabilities, costs, and expenses arising from or related to any breach of this representation and warranty. Breach of this warranty by the Customer shall be considered as a material breach of the Agreement.

7.INDEMNIFICATION

7.1.      Indemnified Claims. Company shall defend and indemnify Customer against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of, or alleging direct infringement of any patent, copyright, or other intellectual property right solely by the ordinary and intended use of the Software. Company’s obligations do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to the Software made without Company’s written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (d) Company’s modification of Software in compliance with specifications provided by Customer (e.g. Feedback); or (e) use of the Software in combination with hardware or software not provided by Company. Customer shall promptly notify Company in writing of any actual or potential claim. Company shall be excused from its indemnification obligation if Customer fails to report the claim to Company within 60 days of first third-party notice.

7.2.      Litigation & Additional Terms. Company’s obligations pursuant to Section 7.1 above will be excused to the extent that Customer’s failure to reasonably cooperate materially prejudices the defense. Company will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Customer 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. Customer shall duly and timely provide Company with all cooperation and assistance (including provision of information, explanations, documents, or responses to requests) required by Company when defending any Indemnified Claim.

8.LIMITATION OF LIABILITY

8.1.      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 MOST RECENT 3 MONTHS OF SERVICE, OR AS A PRO-RATA SHARE OF THE ANNUAL FEE.

8.2.      Excluded Damages. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR LOSS OR DAMAGE SUFFERED BY CUSTOMER IN CONNECTION WITH THE USE OF THE SOFTWARE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS. 

8.3.      Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 8 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 8, 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 8 apply likewise to Company’s affiliates, agents, directors, officers, and other representatives.

8.4.      Exceptions to Limitation of Liability. Sections 8.1 (Dollar Cap) and 8.2 (Excluded Damages) above do not apply to: (a) claims pursuant to Article 7 above (Indemnification); or (b) claims for attorneys’ fees and other litigation costs recoverable by the prevailing party in any action.

9.TERM & TERMINATION

9.1.      Term. This Agreement will remain in effect for the duration of the subscription period selected when purchasing the Software via an Order, with due consideration for the Notice Period. The Order date of the Software is the “Effective Date”, and the subscription period is the “Term”. The Notice of Termination from the Customer to the Company must observe the Notice Period and must occur prior to the start of the next subscription period according to the following rules, unless otherwise stated in another Service Agreement or Sales Agreement approved by the Company. Previous payment is non-refundable.

a)      “Annual subscriptions” are valid for a Term of one (1) year, starting from the Effective Date, with advance payment at the beginning of the annual Term, unless otherwise stated in another Service Agreement or Sales Agreement approved by the Company. The fee and/or the service offered may vary according to the agreed payment plan (e.g. multiannual, annual or monthly). Thereafter, the Term will renew for successive one (1) year periods only upon timely advance payment by Customer of a renewal fee as determined by the Company. There is a three (3) month Notice Period for termination of the Annual subscriptions.

b)     “Monthly subscriptions” are valid for a Term of one (1) month, starting from the Effective Date, with advance payment at the beginning of the monthly Term, unless otherwise stated in another Agreement approved by the Company. Thereafter, the Term will renew for successive one (1) month periods only upon timely advance payment by Customer of a renewal fee as determined by the Company. There is a one (1) month Notice Period for termination of the Monthly subscriptions, and termination will occur at the end of the following period.

The Company may terminate the Agreement without a cause by a Notice of Termination, while in such case the Notice Period shall be one (1) month, irrespective of the fact whether the Customer has Annual subscription or Monthly subscription.

The Company reserves the right to change fees and/or the payment plan options upon renewal of any subscription period.

9.2.      Termination for Material Breach. Either Party may terminate this Agreement for the other Party’s material breach, by written notice specifying in detail the nature of the breach, effective immediately upon delivery of such notice to the other Party, unless the other Party first cures such breach within 5 business days from the delivery of the written notice pursuant to this Section 9.2.

9.3.      Termination for Ownership Change. If Company ceases to have any ownership share in Customer, then Company may terminate this Agreement by written notice, effective immediately after dispatching such notice to Customer.

9.4.      Termination for Financial Problem. Either Party may terminate this Agreement, without any liability, upon written notice to the other Party, in the event that the other Party (a) becomes insolvent or unable to pay its debts as they mature or (b) files a petition for bankruptcy or (c) is the subject of an involuntary petition for bankruptcy that is not dismissed within thirty (30) days or (d) makes an assignment for the benefit of creditors or (e) seeks relief under any bankruptcy, insolvency or debtor's relief law or (f) consents to the institution of insolvency or bankruptcy proceedings or (f) is the subject of a winding up or liquidation order or (g) appoints any trustee, liquidator, custodian, receiver or similar official in respect of its assets or properties. Such written notice shall be effective immediately after dispatching such notice to the other Party.

9.5.      Effects of Termination. Upon termination of this Agreement for any reason, the License and all other rights (including all Company’s Intellectual Property Rights) granted to Customer under this Agreement shall terminate, Customer shall cease all use of the Software, Documentation, Software Data, Know-How, Upgrades and shall remove the same from all computers, storage devices, development systems, and any other device or system, and delete, destroy, or return all copies of the Documentation and/or Software Data in its possession or control. The Customer shall provide written confirmation to the Company certifying the completion of these actions within a reasonable period specified by the Company. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Section 2.2 (Restrictions on Software Rights), Article 3 (IP, Feedback, Software Data, Aggregated Statistics & Know-How), Article 4 (Confidential Information), Article 5 (Software Audit), Section 6.3 (Warranty Disclaimers), Article 8 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

10.MISCELLANEOUS

10.1.       Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf. This Agreement does not create any partnership or joint venture by and between the parties hereto.

10.2.       Notices. All notices under this Agreement shall be in writing and English language, and e-mail shall be considered as written notice. 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.

10.3.       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.

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

10.5.       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.

10.6.       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.

10.7.  U.S. Government Restricted Rights. The Software and Documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation. This Section 10.7 does not grant Customer any rights not specifically set forth in this Agreement.

10.8.  Bankruptcy Rights. The rights and licenses granted to Customer in Sections 2.1 (License), 2.3 (Documentation) above (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Company is subject to any proceeding under the United States Bankruptcy Code, and Company as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law. This Section 10.8 will not be construed to limit or restrict any right or remedy not set forth in this Section 10.8, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.

10.9.       Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship.

10.10.       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.

10.11.       Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

10.12.   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.

11.DISPUTES & GOVERNING LAW

11.1.       Choice of Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.

11.2.       Mediation. Any dispute, controversy or claim arising out of or in connection with this contract, 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 SCC Institute. The place of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English unless otherwise agreed.

11.3.       Rules for arbitration. The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.

11.4.       Confidentiality. The Parties undertake and agree that all arbitral proceedings conducted with reference to Section 11.2 and Section 11.3 will be kept strictly confidential. This confidentiality undertaking shall 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. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.

ADDITIONAL TERMS & CONDITIONS

Pricing as specified in Sales Agreement

Territory as specified in Sales Agreement