License Agreement for the WebOffice (the “Agreement”) which is a hosted software application and service provided by Flowbird (“Licensor”), P.O Box 1031, SE-164 21 KISTA, Sweden.
By using WebOffice, you (i.e. the user of WebOffice (“Licensee”)) accept the terms and conditions of this Agreement entered between Licensor and Licensee (independently referred to as the “Party” and collectively referred to as the “Parties”).
1. LICENSE TO USE
Licensee is granted a non-exclusive, non-transferable, limited license to use WebOffice and to store data therein.
2. INTELLECTUAL PROPERTY RIGHTS
Licensor owns and shall retain all proprietary rights, including but not limited to all patent, database rights, copyright, trade secret, trademark and other intellectual property rights, in or to WebOffice and all associated intellectual property rights, as well as any corrections, bug fixes, enhancements, updates or other modifications to WebOffice, whether made by Licensee, Licensor or any third party. Licensee shall have no right to any such corrections, bug fixes, enhancements, updates or other modifications. Licensee acknowledges that the license granted under this Agreement does not provide Licensee with title to or ownership of WebOffice, but only a right of limited use under the terms and conditions of this Agreement.
Licensee shall not make any efforts and shall not permit, encourage, or assist others, to make, or attempt to make, any unauthorized access to Licensor’s servers or attempt to discover or, except to the extent that such right cannot be lawfully prohibited under the provisions of applicable law, copy, disassemble, decompile, or reverse engineer any software or other technology used by Licensor or its licensors to provide the hosted software application and service.
3. ASSIGNMENT
Under no circumstances may Licensee sell, license, publish, display, distribute, assign or otherwise transfer WebOffice or any copy thereof, in whole or in part, to a third party, without Licensor’s prior written consent.
4. RIGHTS TO COPY
Licensee shall grant Licensor the right to store, save and copy any content data used by Licensee insofar as this is necessary for the execution of WebOffice. This includes the right to save and provide for data backups. Licensor may change the structure of the data or databases or the data format to enhance the operation of WebOffice. Licensor will use reasonable efforts to maintain and secure minimum two years history of data stored by Licensee via WebOffice by using redundant discs and daily backups.
5. OBLIGATIONS OF LICENSEE
The due performance of Licensor depends on Licensee complying with technical minimum requirements regarding hard- and software, client servers, PCs, routers and other requirements as set out in the Information Manual provided by Licensor. Licensor is not responsible for Licensee-specific user interface modelling, Licensee-specific workflow configuration, data interfaces and training, or for configuration of the IT system of Licensee.
6. CONFIDENTIAL INFORMATION
6.1 Confidential information
Both Parties shall hold strictly confidential, not copy or use any information which relates to the other Party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement, disclosed by the other Party, whether in writing, orally or otherwise (“Confidential Information”).
The Parties may only use Confidential Information for the purpose of performance of this Agreement and may only disclose Confidential Information to employees, accountants, lawyers and other advisors of recipient and, additionally with respect to Licensor, its licensors and subcontractors, who has a direct need to know it. The receiving Party shall ensure that the aforementioned employees, accountants, lawyers, other advisors, Licensor’s licensors and subcontractors, are made aware of the confidentiality of Confidential Information.
Further each Party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof.
Notwithstanding the aforesaid, both Parties shall have no obligation of confidentiality concerning information which:
•is already known to the receiving Party prior to the disclosure by the owning Party;
•is or becomes publicly known other than pursuant to a breach of this Agreement;
•is independently developed without the use of the other Party’s Confidential Information and evidence exists to substantiate such independent development;
•is information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality;
•the recipient receives written permission from the disclosing Party for the right to disclose any Confidential Information; or
•the receiving Party is required to disclose by law or by a governmental or administrative agency or body or decision by a court of law, but then only after first notifying the other Party of the required disclosure.
6.2 Sanctions
Both Parties acknowledge and agree that its use or disclosure of Confidential Information in breach of this Section 6 or threat to make such use or disclosure in a manner inconsistent with Section 6, may cause the other Party extensive and irreparable harm, and hereby consent that each Party shall have the right to seek injunctive relief to prevent the unauthorised use or disclosure and to recover an amount corresponding to the damages incurred in connection with such unauthorized use. The receiving Party shall be liable to the disclosing Party for any use or disclosure in violation of this Section 6 by itself or its affiliates, employees and any other related party.
7. LIMITED WARRANTY
Licensor represents and warrants that WebOffice will substantially conform to the specifications set out in the Information Manual provided by Licensor. Licensor reserves the right to upgrade WebOffice from time to time. An upgrade of WebOffice will result in the replacement of then current release of the WebOffice, which will not be accessible thereafter.
8. SOLE REMEDY
Licensor’s sole and exclusive liability and Licensee’s sole and exclusive remedy under the Limited Warranty in Section 7, shall be, through commercially reasonable efforts, to correct any material defects in the WebOffice.
9. DISCLAIMER OF ANY OTHER WARRANTY
EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE IN SECTION 7, LICENSOR MAKES NO OTHER WARRANTIES, EITHER EXPRESS, IMPLIED OR OTHERWISE, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID, SPECIFICALLY INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR SUITABILITY WITH RESPECT TO WEBOFFICE PROVIDED BY LICENSOR HEREUNDER.
10. FORCE MAJEURE, LIMITATION OF LIABILITY, ETC.
10.1 Force Majeure
Where Licensor is prevented from fulfilling its obligations in accordance with this Agreement as result of circumstances beyond its control which it reasonably could not have anticipated when entering into this Agreement and the consequences of which could not be avoided, or where Licensor’s sub-contractors are prevented from executing delivery as a result of such circumstances, such events shall constitute the basis for the postponement of time of performance and discharge Licensor from the liability of damages and other consequences. Discharging circumstances in accordance with the above may comprise, or may be the result of, labour disputes, fire, war, mobilisation, requisition, currency restrictions, import or export controls, theft, sabotage, shortage of means of transport or availability of goods or energy, and the breakdown of machines with unique functions. Where the performance of the Agreement is, to a significant extent, prevented for more than one (1) month as result of the aforementioned circumstances, either Party may, without obligation to pay compensation, terminate the Agreement in writing.
10.2 Third Party Products
Licensor makes no representations and assume no liability hereunder for: (i) any compliance with third party software or products/service used in combination with WebOffice; or (ii) the use of other than a current unaltered release of WebOffice.
10.3 Liability and amount of Liability
Licensor’s liability for damages shall, provided that Licensor did not act intentionally or with gross negligence, be limited to direct losses and to a total amount not exceeding SEK 10,000. Accordingly, Licensor shall not be liable for indirect losses, including loss of data, such as loss of profits, loss of production, damages or other compensation to third parties and other economic losses in connection with the use of WebOffice.
Any claim for compensation shall be made within six (6) months from the date the Licensee became aware, or should have become aware of the circumstance giving rise to the claim.
11. INDEMNITY
Each Party (“Indemnifying Party”) shall indemnify, defend and hold the other Party (“Indemnified Party”) harmless for any third party claim alleging a violation of privacy against the Indemnified Party for any unlawful use or for any misuse of personal data that is collected through WebOffice by the Indemnifying Party, provided that the Indemnified Party (i) promptly notifies the Indemnifying Party in writing of any claim of which it has notice and will not make any admissions without the Indemnifying Party’s prior written consent; (ii) allows the Indemnifying Party control of negotiation and/or settlement of any such claim, and (iii) at the Indemnifying Party’s reasonable request and expense, provide reasonable information and assistance in relation to such claim.
12. INFRINGEMENT
To the best knowledge of Licensor, the use of WebOffice does and will not infringe any third party’s patent, copyright, trademark, trade secret or any other intellectual property right. Should the use of WebOffice become, or in the opinion of Licensor be likely to become, the subject of an infringement claim, Licensor may, at its option (i) procure for Licensee the right to use WebOffice free of any liability; or (ii) replace or modify, in whole or in part, WebOffice to make it non-infringing. If neither of the foregoing alternatives is available on terms which Licensor judges to be reasonable, Licensor may terminate this Agreement.
Licensor (and its licensors and subcontractors) assume no liability hereunder for: (i) any method or process in which WebOffice may be used; (ii) any compliance with Licensee’s specifications; (iii) use of other than a current unaltered release of WebOffice; or (iv) the combination, operation or use of WebOffice with programs or data (other than those of Licensor or its licensors) if such infringement would have been avoided by omissions of, the combination, operation or use of WebOffice with other programs or data.
THIS SECTION 12 SETS FORTH LICENSOR’S (AND ITS LICENSORS’) ENTIRE LIABILITY AND OBLIGATION AND LICENSEE’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
13. TERM
This Agreement shall enter into force when Licensee begins to use WebOffice and shall be valid until further notice. However, this Agreement shall automatically expire upon the expiry of the Subscription Agreement concerning the use of WebOffice to which Licensee is a party. The provisions as set forth in Section 6 shall survive the expiration of this Agreement during a 2-year period from the expiration day.
Upon termination of this Agreement, Licensee may extract any of its data stored in WebOffice. Upon the request of Licensee, Licensor will against payment on a time and material basis assist Licensee to extract any of its data stored in WebOffice.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the substantive laws of Sweden without regard to its principles of conflicts of laws. The Parties hereby agree that all disputes, controversy or claim arising out of this, or in connection with, this Agreement, or breach, termination or invalidity of the Agreement, shall be subject to the exclusive jurisdiction of the Swedish courts, with the district court of Solna as the first instance.
