evroc – General Terms and Conditions
1 Background
These general terms and conditions (the “General Terms”) shall apply to all offers and orders that are made by and to evroc AB, reg. no. 559398-0930, a company duly organized and existing under the laws of Sweden, having its registered address at Katarinavägen 9, 116 45 Stockholm, Sweden, or any of its Affiliates (“evroc”), to and by any customer (the “Customer”) regarding the Services (as defined below). These General Terms shall govern the Customer’s access to and use of the Services and form an integral part of the Agreement (as defined below).
2 Definitions and Contract Documents
2.1 The following words and expressions shall have the meanings stated below (unless the context requires otherwise): “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party;
“Agreement” has the meaning set out in section 2.2 of these General Terms;
“Contract Form” means any contract or order form(s), as applicable, which has been entered into and signed by the Parties with respect to the Services;
“Customer Content” means any and all content (including without limitation software, text, audio, video, images, data, personal data and user data) that is provided or made available to evroc, by or on behalf of the Customer, any User or other third party, in connection with or through the Customer’s access or use of the Services or otherwise under the Agreement;
“Customer IT” means the software, hardware, information technology, systems and services owned by the Customer or licensed by the Customer from a third party, which the Customer, any User or any third party uses in connection with the Services;
“DPA” means the evroc – Data Processing Addendum posted on evroc’s Website at evroc.com
“Effective Date” has the meaning set out in section 2.2 of these General Terms;
“User” means the Customer, its Affiliates, and/or any third party, and each of their respective employees, officers, directors, and representatives that, directly or indirectly, accesses or uses any of the Services provided to the Customer under the Agreement and/or any Customer Content;
“evroc Content” means any and all content (including without limitation software, text, audio, video, images, data, personal data and user data) that is provided or made available to the Customer, any User or other third party by or on behalf of evroc, in connection with or through the Customer’s access or use of the Services or otherwise under the Agreement;
“evroc’s Website” means evroc.com;
“Fees” means any fees, costs and charges payable by the Customer to evroc under the Agreement;
“Party” means evroc or the Customer (as the case may be) and “Parties” means evroc and the Customer collectively;
“Regional Service” means a Service provided and operated within a single geographic region, with underlying resources deployed across two or more Availability Zones in that region;
“Services” means each of the services made available by evroc under the Agreement from time to time, and any related service thereto;
“Start Date” means the date on which the relevant Service(s) are first made available to the Customer;
“Service Terms” means the specific terms and conditions for each specific Service, as may be amended by evroc from time to time, and which shall form an integral part of the Agreement. The Service Terms are posted on evroc’s Website at evroc.com/legal;
“Third Party IT” means the software, hardware, information technology, systems and services owned or licensed by a third party, which are used by evroc to provide the Services or perform its obligations under the Agreement; and
“Zonal Service” means a Service provided and operated in a single Availability Zone within a region.
2.2 An Agreement shall take effect either by the Parties signing a Contract Form or by the Customer clicking an “I accept” button or checking a box presented with these General Terms, or if earlier, when the Customer starts using any of the Services (the “Effective Date”). The terms and conditions of the following documents (as applicable) shall apply between the Parties (and together be referred to as the “Agreement”):
a) the Contract Form (if applicable);
b) the Service Terms (applicable to the relevant Service(s));
c) these General Terms; and
d) DPA (if applicable).
In case of any discrepancy or conflict between the contractual documents, the documents shall prevail in the order listed above, unless otherwise stated in such document.
3 evroc's Provision of the Services
3.1 evroc shall make the Services available from the Start Date, in accordance with the terms of the Agreement.
3.2 From the Start Date, the Customer may access and use the Services in accordance with the terms of the Agreement.
3.3 evroc shall provide the Services with reasonable skill and care and shall comply with applicable laws and regulations with respect to its provision of the Services under the Agreement.
3.4 evroc may engage subcontractors and use Third Party IT to perform the Services and evroc’s other obligations under the Agreement.
3.5 evroc provides the Services “AS IS”. Except to the extent prohibited by mandatory law, evroc: (a) makes no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services or any Third Party IT; and (b) disclaims all warranties, including any implied or express warranties (i) of merchantability, satisfactory quality, fitness for a particular purpose, non- infringement, or quiet enjoyment, (ii) arising out of any course of dealing or usage of trade, (iii) that the Services or evroc Content or Third party IT will be uninterrupted, error free or free of harmful components, and (iv) that any content will be secure or not otherwise lost or altered. For the avoidance of doubt, evroc shall not be responsible for any problems, conditions, delays, delivery failures or any other loss or damage and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of the Services.
4 The Customer’s Use of the Services
4.1 The Customer is granted a limited, non-exclusive, non-sublicensable (except to Users), non-transferable and revocable right to access and use the Services in accordance with the Agreement. Such access and use of the Services is limited to the term, Users and other details specified in the Agreement.
4.2 The Customer shall:
a) provide all information necessary for evroc to perform its obligations under the Agreement, and to verify the Customer’s compliance with the Agreement;
b) ensure that all information provided to evroc by the Customer is accurate, complete and not misleading.
c) ensure that the Customer Content, Customer IT and any User’s access and use of the Services (i) are free from viruses, trojans, worms and any malicious software or code; (ii) do not damage or interfere with the Services, services provided to evroc’s other customers, evroc’s IT (including software, hardware, information technology, systems and services owned or licensed by evroc, which are used by evroc to provide the Services or perform its obligations under the Agreement), evroc’s Content and/or any Third Party IT; (iii) are not unlawful, harmful, threatening, defamatory, obscene, infringing, discriminatory, harassing, racially or ethnically offensive; (iv) do not facilitate illegal activity, are not illegal and do not otherwise cause damage or injury to any person or property;
d) ensure that the Customer Content, Customer IT and the Customer’s (and any User’s) access and use of the Services do not infringe the intellectual property rights of any third party;
e) not access or use (nor allow the access or use of) the Services in any way to avoid incurring Fees or exceeding usage limits under the Agreement;
f) not (i) copy, modify, duplicate, create derivative works of, or distribute all or part of the Services, any evroc Content or any Third-Party IT; (ii) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or part of the Services or any evroc Content (except to the extent applicable law does not allow such restrictions);
g) ensure that information provided by evroc for access to and use of the Services (including without limitation account, login and security information) are kept confidential in accordance with section 10.2 of these General Terms, and shall notify evroc immediately in the event of becoming aware of any unauthorised access or use of the Services or evroc Content;
h) Comply with all the technical documentation applicable to the Services posted on evroc’s website at evroc.com/legal;
i) be responsible for (i) errors and defects in the Customer Content and Customer IT; and (ii) maintaining licenses and adhering to any license terms applicable to the Customer Content and Customer IT used in or with the Services; and
j) unless otherwise follows from the Agreement, be responsible for the back-up and security of Customer Content.
4.3 The Customer shall ensure that each User complies with the Customer’s obligations under the Agreement in connection with access to and use of the Services, and that Users shall not access or use the Services, any evroc Content or Third Party IT, in any manner or for any purpose other than as expressly permitted by the Agreement. The Customer shall be solely responsible and liable for any and all acts and omissions of Users as if they were the acts and omissions of the Customer under the Agreement.
5 Suspension
evroc may, without liability or prejudice to its other rights or remedies under the Agreement, suspend, restrict or disable any access or use of the Services (including part thereof) if: (a) the Customer is in breach of its payment obligations under section 7; (b) evroc reasonably believes that the Customer or any User is in breach of the Agreement; ( c) the provision of the Services is in breach of applicable laws; and/or (d) needed to make changes to the Services for the purposes of corrections, updates, security, emergency maintenance and/or compliance with applicable laws. The Customer shall remain responsible for all Fees accruing during the period of such suspension, restriction or disablement.
6 Changes to the Services
evroc may make changes to the Services and/or the Agreement provided that evroc notifies the Customer prior to the implementation of such changes and that evroc uses commercially reasonable efforts to minimise any disruption of the Services in connection with such changes. Notwithstanding the foregoing sentence, evroc may, without prior notice to the Customer, make changes to the Services and/or the Agreement for the purposes of corrections, updates, security, emergency maintenance and/or compliance with applicable laws, to the extent evroc deems it appropriate.
7 Fees and Payment
7.1 In consideration of the Services to be provided by evroc, the Customer shall pay the Fees to evroc. Unless otherwise agreed in the Contract Form, the Fees applicable from time to time shall be posted on evroc’s Website at evroc.com
7.2 Unless otherwise agreed in the Contract Form, evroc will calculate and charge the Fees monthly for all Services performed by evroc during the relevant month. The Customer shall pay the Fees to evroc for the use of the Services as described on evroc’s Website using one of the payment methods that evroc supports. evroc may charge the Customer more frequently for Fees accrued if evroc suspect that there is a risk of non-payment. All amounts payable by the Customer to evroc will be paid to evroc without setoff or counterclaim, and without any deduction or withholding.
7.3 Fees for any new Service or new feature of a Service will be effective when evroc post updated Fees on evroc’s Website, in the link set out in section 7.1 above, unless evroc expressly states otherwise. evroc may change the Fees for any existing Services that the Customer is using by publishing such changes on evroc’s Website, in the link set out in section 7.1 above.
7.4 Any late payment shall be subject to a late payment charge in accordance with the Swedish Interest Act (Sw. räntelagen).
7.5 If the Customer is in delay with payment for more than fifteen (15) days, evroc is entitled to terminate the Agreement with immediate effect by written notice and to receive damages for any and all loss incurred by evroc due to such late payment and termination of the Agreement.
7.6 All Fees and any other amounts stated or referred to in this Agreement are exclusive of value added tax, which shall be added to the invoice(s) at the appropriate rate.
8 Intellectual Property Rights
8.1 evroc and/or evroc’s licensors (as applicable) hold all rights, including intellectual property rights, to the Services, evroc’s Content and the Third Party IT, and shall retain all rights, title and interest, including intellectual property rights, in and to the Services, evroc’s Content and the Third Party IT.
8.2 If a third party claims that any part of the Services, evroc’s Content or Third Party IT, infringe upon a third party’s intellectual property rights, or if evroc anticipates such a claim, evroc may in its sole discretion:
a) procure the necessary rights for the Customer to continue using the relevant Services;
b) replace the relevant Services with an equivalent non-infringing service;
c) modify the relevant Services so they no longer cause infringement; or
d) terminate the relevant Services, in which case the Customer shall be entitled to a reduction of the Fees corresponding to the reduction of the value of the Services as a result of the infringement.
9 Indemnification
The Customer will defend, indemnify, and hold evroc, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives harmless from and against any liability, losses, damages, costs and expenses arising out of or relating to any third party claim concerning: (a) the Customer’s or any Users’ use of the Services; (b) breach of the Agreement or violation of applicable laws by the Customer, Users or the Customer Content; or (c) the relationship between the Customer and any User. Such indemnity shall not be subject to the limitations of liability set out in section 10 of these General Terms.
10 Limitation of Liability
10.1 Each Party’s liability shall be limited to the fifteen percent (15%) of the aggregate amounts paid and payable by the Customer to evroc for the Service(s) during the twelve (12) month period preceding the event for which damages are claimed.
10.2 Each Party’s liability under this Agreement shall be limited to direct damages only and neither Party shall be liable, whether due to negligence, breach of the Agreement, misrepresentation or otherwise, for any indirect or consequential loss or damage howsoever arising, including loss of revenue, loss of profits or turnover, loss of data, loss of goodwill, loss of anticipated business or savings, or other indirect or consequential loss, irrespective of whether or not such loss or damage can be deemed foreseeable by a Party.
10.3 The limitations of liability of a Party set forth in this section 10 shall not apply in the event of: (i) wilful misconduct or gross negligence of such Party; or (ii) to any indemnification obligation of such Party set out under this Agreement.
11 Confidentiality
Each Party undertakes not to disclose to any third party, without the prior written approval from the other Party, any information which is made available by or on behalf of such other Party in connection with the Agreement, including without limitation information regarding the content or existence of the Agreement. However, a Party may disclose such information to the extent such Party is obliged to do so according to (a) applicable law; (b) any court or authority's judgment or decision; ( c) mandatory stock exchange rules or equivalent; or (d) the course of a dispute or other legal proceedings regarding the Agreement.
12 Data Protection
12.1 The Parties shall comply with their respective obligations under applicable data protection laws.
12.2 To the extent Customer Content contains personal data, the processing of such personal data by evroc on behalf of the Customer, shall be governed by the DPA.
13 Force Majeure
13.1 A Party shall be entitled to suspend the performance of its obligations under the Agreement where such performance is prevented by a circumstance which is beyond such Party’s control and which such Party could neither have foreseen nor reasonably should have foreseen in conjunction with the conclusion of the Agreement (“Force Majeure”). Force Majeure may include, inter alia, war or a state of affairs similar to war, mobilisation or military conscription of a corresponding extent, revolt and ebellion, terrorism, sabotage, fire, floods, natural catastrophes, epidemics, pandemics, disruptions to public communications, disruptions to the public power networks, strikes, lock-outs or other general local labour market conflicts, requisition, seizure, decisions by public authorities, trade, payment or currency restrictions, or circumstances equivalent thereto. The same applies where the Force Majeure event exists for a Party's counterparties.
13.2 In the event a Party is prevented from performing its obligations under the Agreement due to a Force Majeure event during a continuous period exceeding three (3) months, either Party shall be entitled to terminate the Agreement with immediate effect.
13.3 A Party shall not be liable for damage or loss which arises for the other Party as a consequence of the postponement of the performance of the Agreement, or that the Agreement is terminated due to a Force Majeure event.
13.4 If a Party wishes to invoke a Force Majeure event in accordance with this section 13, it shall give notice thereof to the other Party when there is a risk for failure or delay to perform an obligation under this Agreement. In the absence of such notice, the Party shall not be discharged from liability for any damage which could have been avoided had notice been given in due time.
14 Term and Termination
14.1 Unless otherwise agreed between the Parties, the Agreement shall commence on the Effective Date and shall remain in force until terminated in accordance with this section 14.
14.2 Unless a term of the Agreement has been agreed between the Parties, either Party may terminate the Agreement, for any reason by providing the other Party a thirty (30) days’ advance notice. Notwithstanding what is set out in section 15.5 below, the Customer may give evroc such notice of termination as described on evroc’s Website.
14.3 If the Parties have agreed on a term for the Agreement, it shall automatically renew until further notice upon the expiry of such term, unless either Party gives written notice of termination no later than thirty (30) days prior to the end of the then-current term.
14.4 Either Party may terminate this Agreement with immediate effect by giving the other Party a written notice thereof, if the other Party:
a) fails to fulfil any of its obligations under the Agreement, provided such failure is of material importance for the non-breaching Party and the other Party has failed to perform rectification not later than seven (7) days following written notice thereof; or
b) has given notice of suspension of payments, is the subject of a bankruptcy petition, commences negotiations for a composition with its creditors or applies for company reconstruction, enters into liquidation or may otherwise be deemed to be insolvent.
14.5 Upon termination of the Agreement for any reason:
a) all rights granted by evroc under the Agreement shall immediately terminate;
b) the Customer shall ensure that all Users shall immediately cease access and use of the Services;
c) evroc may destroy or otherwise dispose of any Customer Content in its possession. The Customer shall pay all reasonable expenses incurred by evroc in destroying or disposing the Customer Content.
14.6 Termination of the Agreement for any reason shall not release either Party from any liability which, at the time of such termination, has already accrued to such Party or which may accrue thereafter in respect of any act or omission prior to termination. Obligations and provisions which are expressed to, or by their nature and context are intended to, survive such termination shall survive the termination of the Agreement.
14.7 The provisions in sections 9 (Indemnification), 10 (Limitation of Liability), 10.2 (Confidentiality), 12 (Data Protection), and 16 (Governing law and Dispute Resolution) of these General Terms shall survive the expiry or termination of the Agreement.
15 Miscellaneous
15.1 Interpretation. The headings in the Agreement are for ease of reference only and shall not affect the interpretation of any provision of the General Terms.
15.2 Severability. If any provision of the Agreement or part thereof is held to be unenforceable, the Agreement will continue to be in force and if the unenforceability will have an effect on a Party’s rights or obligations according to the Agreement, the Agreement shall be modified on reasonable grounds.
15.3 Amendment and waivers. No modification or amendments of the Agreement shall be effective or enforceable unless made in writing and signed by both Parties, unless otherwise expressly stated in the Agreement. In no event shall any delay, failure or omission of a Party in enforcing, exercising or pursuing any right, claim or remedy under the Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing.
15.4 Assignment. The Customer shall not be entitled to assign its rights or obligations under this Agreement without the prior written consent of the other Party. evroc may assign its rights and obligations under the Agreement to a third party without the approval of the Customer.
15.5 Notices. Unless otherwise specified in the Agreement, all requests, notifications, demands or other notices under the Agreement shall be in writing and sent by one Party to the other Party at the address specified in the Agreement (or to the address which a Party subsequently notifies to the other Party in writing in accordance with the provisions of this section 15.5). Such notices shall be deemed to have been received by the recipient if:
a) delivered by courier, upon delivery to the recipient;
b) sent by registered mail, five (5) days after dispatch; or
c) sent by email which has been confirmed by the recipient, at the date and time the email arrives at the receiving Party’s email address.
16 Governing law and Dispute Resolution
16.1 This Agreement shall be governed by the substantive law of Sweden.
16.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the SCC Arbitration Institute. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
16.3 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause 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 its 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, applicable stock exchange regulations or the regulations of any other recognised marketplace.
16.4 In case this Agreement or any part of it is assigned or transferred to a third party, such third party shall automatically be bound by the provisions of this arbitration clause.
