1. Introduction
These Terms and Conditions (the “TC”) form an integral part of the Customer Agreement between Velory AB, a Swedish company with registration number 559118-9476, (“Velory”), and the “Customer” set out in the main document of the Customer Agreement (the “Main Document”). In case of conflict between the Main Document and these TC, the Main Document shall prevail.
2. Definitions
In addition to the capitalized terms defined in the Main Document and in Section 1 above, capitalized terms are defined the first time used.
"Customer Data" means, other than Velory Data, information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an User by or through the Services.
"Velory Data" means all data and information (whether or not confidential information) that is collected or created by or provided to Velory or its suppliers, distributors, personnel, consultants, or advisors in connection with the provision of the Services and the Platform and its operations and business in general. This includes:
- Data or information relating to Velory’s services such as facts, figures, pictures, graphics, images, and any other materials;
- Data or information belonging to Velory, such as any formulas, algorithms, methodologies, statistics, measurements, or notes relating to the Platform;
- Details regarding Customers’ use of the Services;
- Data or information provided by, or collected from, a third party at Velory’s direction or request;
- Databases in which such data or information is contained;
- Documentation or records related to such data or information; and
- Products resulting from the use or manipulation of such data or information.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Velory.
3. Platform features, license, configuration, and functionality.
3.1
Modification or Discontinuation of Services:
Velory may add, modify or discontinue any feature, functionality or any other tool within any Services, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Platform, then we will notify you by posting an announcement on the Platform and/or by sending you an email. New features are released on a regular basis on the Platform, sometimes included within existing price plans and sometimes offered at an additional cost.
3.2
No guaranteed functionality:
Even though Velory intends that the Platform and Services shall perform as intended at all times, Velory does not guarantee that the Platform and Services always will be error free and work without interruption.Velory will maintain the Platform on a need basis. Scheduled maintenance that may involve unavailability of the Pla
4. The general structure
4.1
Following the Effective Date, provided that the Customer adheres to the generally applicable Terms of Use as updated from time to time (the 'ToU'), accessible at Velory website.
4.2
Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement during the term of the Agreement, Velory shall use commercially reasonable efforts to provide to Customer the services described on http://www.velory.com and this Agreement (collectively, the “Services”). As part of the Services, Velory provides access to the Platform, meaning the Velory software application “Velory”, and all new versions, updates, revisions, improvements, and modifications thereof (excluding any premium features and/or customized development made specifically for any customer/reseller of Velory).
4.3
Customer will be offering employees (the “Users”) the possibility to get access to and use the Platform in order to manage and place orders for hardware and software. The Customer is responsible for ensuring that all Users comply with ToU as a condition for accessing the Platform. The Platform will be made available to Users only after they accept the ToU.
4.4
The Services include hosting, managing, operating and maintaining the Platform for access and use by Customer in substantial conformity with the service description provided by Velory during 24 hours per day, seven days per week every day of the year, except in case of:
- scheduled downtime (where Velory will give Customer prior notice of all scheduled outages of the Platform); and
- Service downtime or degradation due to circumstances beyond Velory’s reasonable control, including Customer’s or any User’s use of Third Party Materials (as defined below), misuse of the Platform, or use of the Services other than in compliance with the express terms of this Agreement.
4.5
Velory reserves the right, in its sole discretion, to make any changes to the Services and the Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Velory’s services to its customers, (ii) the competitive strength of or market for Velory’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
4.6
Velory may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
4.7
Velory may, directly or indirectly, suspend, terminate or otherwise deny Customer’s or any User’s access to or use of all or any part of the Services or Platform, without incurring any resulting obligation or liability, if: (a) Velory receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Velory to do so; or (b) Velory believes, in its good faith and sole discretion, that: (i) Customer or any User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement hereunder; (ii) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Velory’s other rights or remedies, whether at law, in equity or under this Agreement.
5. Intellectual property rights and data
5.1
All right, title and interest in and to the Services and Platform, including all Intellectual Property Rights therein, are and will remain with Velory and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or the Platform (including Third-Party Materials).
5.2
As between Customer and Velory, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 5.3.
5.3
Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Velory, its Subcontractors and the Velory personnel as are necessary or useful to perform the Services and perform data analytics in order to improve the Services; and (b) to Velory as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
5.4
Customer acknowledges and agrees that as between Customer and Velory, Velory is the legal owner of the Velory Data, and Customer has no rights or interest in the Velory Data other than as set out in this Agreement.
6. Restrictions
Customer shall not access or use the Services or Platform except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For clarity, Customer shall not, except as this Agreement expressly permits, e.g.:
- copy, modify or create derivative works or improvements of the Services or Platform;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Platform to any person;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Platform, in whole or in part;
- bypass or breach any security device or protection used by the Services or Platform;
- input, upload, transmit or otherwise provide to or through the Services or Platform, any information or materials that are unlawful or harmful, or contain, transmit or activate any harmful code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Platform;
- access or use the Services or Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law.
7. Marketing and publicity
The Parties shall agree on a joint public statement about this Agreement. Subject to Customer’s prior consent, Velory may refer to and use Customer’s name and logo in connection with the promotion and marketing of its services, including but not limited to references in marketing materials, social media platforms, and on the Velory website.
8. Confidentiality
8.1
A Party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This non-disclosure obligation shall not include information that:some text
- is in the public domain at the time of execution of the Agreement, or which comes in the public domain during the term hereof other than pursuant to a breach of this Agreement by the Party receiving the information;
- is received from a third party without a restriction on further disclosure;
- is independently developed by an employee, subcontractor or consultant of the Receiving Party; or
- 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.
- This Section 8 shall survive termination of the Agreement.
8.2
This Section 8 shall survive termination of the Agreement.
9. Limitations of liability
9.1
Velory’s liability to Customer under this Agreement shall be, to the maximum extent permitted by applicable law, limited to direct damages up to an amount corresponding to the aggregate amount Customer has paid to Velory under the Agreement during the immediately preceding twelve (12) calendar months before the action giving rise to the claim.
9.2
Except for a breach of Section 8 or any violation of the other Party’s Intellectual Property Rights, in no event shall either Party be liable to the other Party for any consequential, exemplary, punitive, incidental, indirect or special damages or costs howsoever arising out of or related to this Agreement, whether or not either Party has been advised of the possibility of such damages or costs.
10. Personal data
10.1
The Platform will come to process some “Personal Data” as such term is defined in Article 4 of the General Data Protection Regulation (GDPR) EU 2016/679.
10.2
Velory will process personal data on behalf of Customer (acting as “Data Controller”) and shall therefore be defined as the “Data Processor”. The Data Processor may only process personal data on behalf of the Data Controller for the purposes agreed between the Parties or otherwise allowed by applicable laws regarding personal data, to the extent necessary for the performance of the services under this Agreement, and in accordance with the Data Controller’s instructions applicable from time to time.
10.3
The Data Processor shall immediately consult with the Data Controller, should any uncertainties occur regarding the processing of personal data hereunder.
11. Third party financing
11.1
The Customer can ask for third-party financing of purchases made on the Platform (the “Financing Service”). Notwithstanding the foregoing, third-party financing will always require a separate agreement (the “Credit Agreement”) between the Customer, on the one hand, and the Finance Provider, on the other.
11.2
As between the Parties, the Customer is the contracting Party with the Finance Provider and Velory may not be held accountable for any disagreement or disputes that may arise between the Customer, the Reseller and the Financing Party related to any Credit Agreement or other agreement originating from any transaction generated through the Platform.
12. Miscellaneous
12.1
Force majeure:
Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under the Agreement if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that Party which by its nature could not have been foreseen by such a Party or if it could have been foreseen was unavoidable.
12.2
Waiver and cumulative remedies:
A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.3
Severance:
If a court or any other competent authority finds that any provision (or part of any provision) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4
Independence:
Nothing in the Agreement is intended to, or shall be deemed to, constitute a formal partnership or joint venture of any kind between any of the Parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way.
12.5
Assignability:
The Agreement is not transferable or assignable without prior written consent of the non-assigning Party; provided, however, that either Party upon written notice to the other Party may assign the Agreement to an acquirer of substantially all of that Party’s assets, stock or business by sale, merger or otherwise or to an affiliate.
12.6
Changes or updates:
Any variation, including any additional terms and conditions, to the Agreement shall only be binding when agreed and documented in writing. Velory may with not less than ninety (90) days prior written notice make changes to these TC. If Customer does not accept a change made in accordance with the foregoing, Customer may (in addition any other right of termination set out in the Main Document) within thirty (30) days from receiving notice of the change terminate the Agreement by providing thirty (30) days written notice. In such case, the previous TC shall apply up and until termination of the Agreement.
12.7
Warranty:
Each Party represents and warrants that it (i) has the rights and authority to enter into the Agreement, (ii) shall maintain, at its sole expense, all necessary business licenses, insurances, permits, consents, releases and authorizations to carry on its business and to perform its obligations hereunder; and (iii) shall at all times use best efforts to act in an ethical manner and shall comply with all applicable international, national, state, and local laws, rules, and regulations with respect to the conduct of its business and its performance hereunder. This shall include, but not be limited to, as applicable, any laws, rules or regulations regarding anti-bribery, anti-corruption, antitrust, competition, personal data, and privacy.
12.8
Entire agreement:
The Reseller Agreement (including its appendices), constitute the entire agreement between the Reseller and Velory regarding the subject matter hereof, and supersede all prior communications, written or oral, between the Parties, except for any specific non-disclosure agreement relating to the subject matter hereof entered into between the Parties.
12.9
Variation:
Any variation, including any additional terms and conditions, to the Agreement shall only be binding when agreed in writing and signed by both Parties.
13. Governing law and disputes
13.1
This Agreement shall be governed by the substantive laws of Sweden without giving effect to its rules in conflict of law.
13.2
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 administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). 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 place for such proceedings shall be Stockholm, Sweden and the language shall be Swedish.
