1.1 These general terms and conditions shall apply to all services provided by GWS in as much as they are not amended by express written agreement between the parties.
1.2 Definitions. In these Terms and Conditions
1.2.1 “Active End User” shall mean a unique user that has gained access to Content and/or started the Safeture Services during the last 12 months. For the avoidance of doubt it is noted that only downloading a Customer App do not qualify a user as an Active End User.
1.2.2 ”Business Day” shall mean any day on which banks in Sweden are open for business.
1.2.3 “Content” shall mean incident feeds, messages, alerts, notifications and other security information provided to Active End Users by or on behalf of GWS.
1.2.4 “Customer App” means a mobile device application for iPhone and Android developed by, or on behalf of, Customer by use of the GWS SDK, designed to connect to the GWS backend servers and to deliver Content to Active End Users.
1.2.5 “Safeture Services” shall mean the security services provided to Active End Users as specified in Appendix 1 to the Agreement.
1.2.6 “SDK Key” shall mean a unique identifier for a Customer App when using the GWS SDK.
1.2.7 “App ID” shall mean unique identifier for identifying a Customer App in an App Store.
1.2.8 “App Store” means a digital site or application where it is possible to download the Customer App such as Google Play and Apple App Store iTunes.
1.2.9 “Term” shall mean the term specified in the Agreement.
1.2.10 “Terms and Conditions” shall mean these terms and conditions.
2 GWS SDK
2.1 Subject to the terms of this Agreement and during the Term, GWS grants Customer a limited, worldwide and non-exclusive license to use the GWS SDK to develop, or have developed, Customer Apps; and to
2.1.1 reproduce, distribute and sub-license parts of the GWS SDK included in Customer Apps;
2.1.2 publish, market, demonstrate, promote and distribute parts of the GWS SDK included in Customer Apps; and
2.1.3 make as many copies of the GWS SDK, and related materials, as are required for exercise of the licenses and rights granted in this Agreement.
2.2 Customer may not use the same SDK Key for multiple App IDs in the same App Store.
2.3 Customer may not (i) reverse engineer, decompile or disassemble the GWS SDK, except and only to the extent that applicable law expressly permits, despite this limitation; (ii) publish the GWS SDK for others to copy; or (iii) rent, lease, or lend the GWS SDK.
2.4 Customer may use third party developers for the development of Customer Apps provided that such third party developers are bound by terms for the use of the GWS SDK not less stringent than the terms set out in this Agreement.
2.5 GWS will provide free email support to Customer (including to a third party developer used by Customer) for the development of Customer Apps. All other support will be invoiced Customer at the rates set out in Appendix 1 to the Agreement. Telephone support, if included in the services pursuant to Appendix 1, is limited to 10 free hours per year.
2.6 From time to time GWS may choose, at its own discretion, to make available partial or complete updates of the GWS SDK (“Updates”). When made available, Updates will be supplied under the terms of this Agreement. A complete Update completely replaces any previous releases which are immediately rendered unsupported.
2.7 GWS will use commercially reasonable efforts to adapt the GWS SDK after release of a new development environment of the platform provider to that environment.
2.8 Company may NOT use the GWS SDK for any purpose not expressly permitted in this Agreement.
2.9 Customer may NOT, directly or indirectly, mirror, relay or forward any Content. Upon breach of this Section 2.8, Customer shall pay to GWS liquidated damages in the amount of USD 100,000 for each commenced week such breach persists.
2.10 THE GWS SDK IS SUPPLIED ON AN “AS IS” BASIS WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESSED OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3 EQUIPMENT AND USE
3.1 Depending on how the Safeture Services is accessed by Active End User, he or she will need certain equipment and additional third-party services, such as a phone with carrier subscription. GWS undertakes no responsibility for any such equipment or services or for any costs related thereto. Information regarding the requirements for the Safeture Services can be found at GWS’ website: www.safeture.com
3.2 The Safeture Services is individually activated for each Active End User.
4 PERSONAL DATA
4.1 The processing of personal data by GWS is subject to the privacy laws stipulated in Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter referred to as “EU 2016/679”).
4.2 The Safeture Service requires that GWS (i) collects and stores personal data such as Active End User’s phone number, (ii) gets access to Active End User’s locational data, and (iii) is allowed to send text messages (SMS) to Active End User. All GWS use of personal data is made on behalf of Customer, who is the controller.
4.3 Customer represents and warrants (i) that Active End Users accepts that GWS gathers and store Active End User’s personal data in order to provide access to the Safeture Services, (ii) that Active End User accepts that GWS gathers, stores and analyses positional data from Active End Users phone and the networks the phone is connected to; and that GWS sends text messages to Active End User’s phone, and (iii) that the storage and use of personal data by GWS is in compliance with applicable laws and regulations, including laws and regulations relating to data privacy such as information security, identity theft, data breach notification, trans-border data flow and/or data protection.
4.4 GWS shall not use the personal data gathered pursuant to the Agreement for any other purpose those set out in the Agreement and only to provide the Safeture Services to Active End Users. The personal data collected consists of, but not limited to, names, phone numbers, position, e-mails and address related to Active End Users.
4.5 GWS shall take appropriate technical and organizational measures to protect personal data. Such measures shall provide a level of security that is appropriate with regard to the available technology and the cost of the measures, taking into account whether there are any specific risks involved with the processing and the level of sensitivity of the personal data.
4.6 On behalf of Customer, GWS will store personal data on its servers or on such third party servers GWS may contract and Contractor hereby consents to the use of third party data processors. If GWS engages such data processor, GWS shall ensure that the data processor by agreement undertakes the obligations arising out of this Agreement. GWS is fully responsible towards Customer for the undertakings of the third party data processor.
4.7 GWS shall delete (i) all personal data relating to Customer’s Active End Users upon termination of this Agreement, and (ii) the personal data relating to an Active End User upon termination of the Safeture Services by such Active End User.
4.8 GWS shall limit access to personal data within its organization to such personnel which require it for the delivery of the Safeture Services, each of whom shall be obliged to keep the personal data confidential.
4.9 GWS have the right to collect and use anonymized (non-personal) data gathered from the Active End Users and Customer App for any purpose. GWS may never without explicit permission from Customer use the gathered personal data to contact Active End Users for other purposes than the Safeture Services.
4.10 GWS undertakes not to transfer personal data outside the EU/EEA, except to the extent stated in the Agreement.
4.11 GWS shall assists the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the obligation to respond to requests for exercising the data subject’s rights laid down in EU 2016/679 as well as assists in ensuring compliance with the obligations pursuant to EU 2016/679 taking into account the nature of processing and the information available to the processor.
4.12 GWS shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in EU 2016/679 and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.
4.13 Unless compelled to do so pursuant to mandatory law, GWS shall not be liable to disclose to Customer any personal data held by GWS.
5 SAFETURE SERVICES
5.1 GWS shall: (i) provide the Safeture Services, (ii) use commercially reasonable efforts to make the Safeture Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GWS shall give at least 8 hours’ notice via the Safeture Services); or (b) any unavailability caused by circumstances beyond GWS reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Safeture Services only in accordance with applicable laws and government regulations.
5.2 Customer shall (i) be responsible for the accuracy, quality and legality of its data and of the means by which Customer acquired its data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Safeture Services, and notify GWS promptly of any such unauthorized access or use, and (iii) use the Safeture Services only in accordance with applicable laws and government regulations. Customer shall not (a) make the Safeture Services available to anyone other than Active End Users, (b) sell, resell, rent or lease the Safeture Services, or (b) attempt to gain unauthorized access to the Safeture Services or their related systems or networks.
6 FEES AND PAYMENT FOR PURCHASED SERVICES
6.1 Fees. Customer shall pay to GWS the costs and fees set out in Appendix 1 to this Agreement.
6.2 Invoicing and Payment. GWS will invoice Customer quarterly in advance. Customer shall promptly notify GWS of any changes to its invoicing address.
6.3 All invoices shall be paid no later than thirty (30) days from the issuance date of an invoice (the “Invoice Date”) in the currency specified in such invoice, exclusive of any taxes. Any amount overdue shall bear an overdue interest rate of one (1) percent per month until payment of the overdue amount is received by GWS.
6.4 In the event Customer is in delay with payment, and the delay exceeds fifteen (15) Business Days, GWS is entitled to suspend the provision of the Safeture Services without any liability to Customer, until all overdue amounts, including the overdue interest, are paid in full and received by GWS. GWS will notify Customer at least five (5) Business Days before suspending the provision of the Safeture Services. Once Customer has paid all overdue amounts, including the overdue interest, GWS shall as soon as possible commence the provision of the Safeture Services. For the avoidance of doubt, suspension of any of the Safeture Services does not entitle Customer to any reduction of fees or partial payment for the Safeture Services during the time the provision of the Safeture Services is suspended.
6.5 In the event payment of an undisputed invoice is delayed in excess of thirty (30) days, in addition to the right to suspend provision of the Safeture Services in accordance to Section 6.4 above, GWS shall upon at least five (5) Business Days written notice to Customer also be entitled to terminate this Agreement in whole or in part or any Safeture Services provided hereunder with immediate effect.
6.6 Unless otherwise stated, GWS’ prices and fees do not include VAT.
7 PROPRIETARY RIGHTS
7.1 Reservation of Rights in Safeture Services. Subject to the limited rights expressly granted hereunder, GWS reserve all rights, title and interest in and to the Safeture Services and the GWS SDK, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
7.2 Customer shall not (i) permit any third party to access the Safeture Services except as permitted herein, (ii) create derivate works based on the Safeture Services or the GWS SDK except as authorized herein, (iii) copy, frame or mirror any Content, (iv) reverse engineer the Safeture Services, or (v) access the Safeture Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Safeture Services.
7.3 Customer’s Data. Subject to the limited rights granted by Customer hereunder, GWS acquire no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customers’ data, including any intellectual property rights therein.
7.4 Suggestions. GWS shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Safeture Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Active End Users, relating to the operation of the Safeture Services.
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s data; GWS’ Confidential Information shall include the Safeture Services; and Confidential Information of each party shall include the terms and conditions of the Subscription Agreement and the Conditions, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer’s data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) was independently developed by the Receiving Party, or (v) a party is required to disclose by law or by stock exchange rules or pursuant to any order of court or other competent authority or tribunal.
8.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9 WARRANTIES AND DISCLAIMERS
9.1 GWS Warranties. GWS warrants that (i) GWS has validly entered into the Agreement and have the legal power to do so, (ii) the Safeture Services shall perform materially in accordance with the descriptions at www.safeture.com, (iii) the functionality of the Safeture Services will not be materially decreased during a subscription term, and (iv) GWS will not transmit malicious code to any Active End User. For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 12.1 (Termination for Cause).
9.2 Customer Warranties. Customer warrants that it has validly entered into this Agreement and has the legal power to do so.
9.3 GWS Disclaimer. Unless otherwise explicitly stated herein, GWS disclaims any and all liability for the acts, omissions and conduct of any third parties outside GWS´ reasonable control in connection with or related to the Safeture Services. GWS disclaims all any and all liability for the Content, advice or accuracy of the Content in the warning messages generated within the Safeture Services. GWS specifically disclaims any and all liability for disruptions or malfunctions in any mobile telecommunication network or operations of mobile networks. GWS shall not be liable for any actions that might be taken or not be taken as a result of warning messages, message content or any other information provided by GWS. Nor will GWS accept any liability regarding any loss of revenue, business, anticipated savings or profits; or for any indirect special or consequential loss damage, cost or other claims, howsoever caused or arising, whether through non-supply or late supply of the Safeture Services.
10 MUTUAL INDEMNIFICATION
10.1 Indemnification by GWS. GWS shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Safeture Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court- approved settlement of, a Claim Against Customer; provided that Customer (a) promptly give GWS written notice of the Claim Against Customer; (b) give GWS sole control of the defense and settlement of the Claim Against Customer (provided that GWS may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provide to GWS all reasonable assistance, at GWS’ expense. In the event of a Claim Against Customer, or if GWS reasonably believe the Safeture Services may infringe or misappropriate, GWS may in its discretion and at no cost to Customer (i) modify the Safeture Services so that they no longer infringe or misappropriate, without breaching GWS warranties under “GWS Warranties” above, (ii) obtain a license for Customer’s continued use of the Safeture Services in accordance with this Agreement, or (iii) terminate Customer’s user subscriptions for such Safeture Services upon 30 days’ written notice and refund to Customer any prepaid fees covering the remainder of the term of such user subscriptions after the effective date of termination.
10.2 Indemnification by Customer. Customer shall defend GWS against any claim, demand, suit or proceeding made or brought against GWS by a third party alleging that Customer data, or Customer’s use of the Safeture Services is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against GWS”), and shall indemnify GWS for any damages, attorney fees and costs finally awarded against GWS as a result of, or for any amounts paid by GWS under a court-approved settlement of, a Claim Against GWS; provided that GWS (a) promptly give Customer written notice of the Claim Against GWS; (b) give Customer sole control of the defense and settlement of the Claim Against GWS (provided that Customer may not settle any Claim Against GWS unless the settlement unconditionally releases GWS of all liability); and (c) provide to Customer all reasonable assistance, at Customer’s expense.
10.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11 LIMITATION OF LIABILITY
11.1 Limitation of Liability. Neither party’s liability with respect of any single incident arising out of or related to the Agreement (whether in contract or tort or any other theory of liability) shall exceed the lesser of USD 100,000 or 25 % of the amount paid by Customer to GWS in the 12 months preceding the incident, provided that in no event shall either party’s aggregate liability arising out of or related to the Agreement (whether in contract or tort or any other theory of liability) shall exceed the total amounts paid to GWS hereunder. The foregoing shall not limit Customer’s obligation to pay agreed fees for the Safeture Services.
11.2 Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages, however caused (whether in contract or tort or any other theory of liability) and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent expressly prohibited by law.
11.3 Personal Data. As responsible for the treatment of the personal data, the Customer is liable for damages towards its Active End Users and other individuals whose personal data have been registered if the personal data is not treated according to applicable privacy laws. Notwithstanding any other provision herein, Customer agrees to defend, at its own expense, any claim, suit, action or proceeding brought against GWS, and each of their respective directors, officers, employees and agents (collectively, “Indemnitees”) and shall indemnify and hold Indemnitees harmless from and against any and all claims, demands, liabilities, losses, costs, damages or expenses, (including reasonable attorneys’ fees and costs of settlement), resulting from or arising out of any third party claims arising out of Customers representations and warranties under Section 4 (Personal Data).
11.4 The limitations set out in Sections 11.1 and 11.2 above shall not apply to third party claims resulting out of Section 10 (Mutual Indemnification), Section 11.3 (Personal Data).
12.1 Termination for Cause. Notwithstanding anything in this Agreement, this Agreement may be terminated by either party forthwith
12.1.1 on giving notice in writing to the other party if the other party commits any material breach of any term of this Agreement, and in the case of a breach capable of being remedied, shall have failed within thirty (30) days after the receipt of a request in writing from the non-defaulting party to do so; or
12.1.2 should the other party during the term of this Agreement stop its payments, enter into liquidation or administration, be unable to pay its debts in the ordinary course of its business, cease to or threaten to cease to trade, make a composition or arrangement with its creditors, have a receiver or manager appointed for its assets, undertaking or part thereof, be declared bankrupt, otherwise become insolvent or if an order is made or a resolution is passed for its winding up, or any similar or analogous event occurs in any jurisdiction.
12.2 Any expiry or termination of this Agreement howsoever occasioned shall not affect any rights or liabilities of any party which have accrued prior to termination.
12.3 Surviving Provisions. Sections 6 (Fees and Payment for Purchased Safeture Services), 7 (Proprietary Rights), 8 (Confidentiality), 9 (Warranties and Disclaimers), 10 (Mutual Indemnification), 11 (Limitation of Liability) and 15 (General) shall survive any termination or expiry of this Agreement.
13 DISPUTES AND GOVERNING LAW
13.1 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
13.2 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English.
13.3 All arbitral proceedings conducted pursuant to Section 13.1, all information disclosed and all documents submitted or issued by or on behalf of any of the disputing parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than these proceedings nor be disclosed to any third party without the prior written consent of the party to which the information relates or, as regards to a decision or award, the prior written consent of all the other disputing parties.
13.4 This Agreement shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
14 FORCE MAJEURE
14.1 Neither party shall be liable to the other party for any failure to perform any obligation under this Agreement which is due to an event beyond the control of such party including, without limitation, natural disasters, war, riot, civil unrest, terrorism, strikes, lock-out and other labour difficulties (regardless of the party concerned is the object or party to such an action), lightening, fire, flooding, public utility failures, amendment of rules to public authorities, interventions by public authorities, disruptions or malfunctions in any mobile telecommunication network or the operations of mobile networks, internet service provider failures or delays or denial of service (DoS or DDoS) attacks. The party affected by such event shall so inform the other party and shall use all commercially reasonable efforts to comply with the terms and conditions of this Agreement. If, as a result of circumstances referred to above, the fulfilment of an obligation is delayed by more than ninety (90) days, the party not affected by such circumstances shall be entitled to terminate this Agreement with immediate effect without incurring any liability therefore.
15.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the address in the Subscription Agreement or such other address notified to GWS in writing.
15.2 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
15.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
15.5 Entire Agreement. This Agreement, including the Subscription Agreement and all exhibits and addenda hereto, sets out the entire understanding between the parties and merges all prior discussions and agreements between them. The parties will not be bound by any conditions, definitions, warranties or representations in respect of the subject matter of this Agreement other than those contained in the Agreement, and that to the extent permitted by law, all express or implied warranties, representations, statements, terms and conditions relating to this Agreement, which could otherwise be relied upon by either party are excluded, unless expressly stated in this Agreement.
15.6 Industry change. In the event of any change in legislation or industry practice, or the content generally available within the Safeture Services, that directly or indirectly affects (i) the operation of this Agreement or the Safeture Services which is material to GWS’ performing its obligations, including its obligations to Customer; or (ii) the benefits of this Agreement accruing to GWS; GWS reserves right to change these Conditions. It is Customer’s responsibility to ensure that he carefully read this Agreement and keep himself updated to any changes therein. The latest valid version of the Conditions is available at GWS’ website www.safeture.com. Any revision to this Agreement will take effect immediately upon being posted on the Website.