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General Terms

Fredrik Amréus Hammargården
Updated

As defined in the Order Form, Indivd AB 559169-7072, Box 1, 85102 Sundsvall ("Indivd") and Customer have entered into an agreement (“Agreement“) for the provision of "Services".

The Agreement comprises the Order Form and its appendices, including these General Terms and the Data Processing Agreement found here https://indivd.zendesk.com/hc/en-gb/categories/19654274113938-Legal

  Indivd and Customer are each referred to as a “Party“, and jointly as the “Parties“).

  • Indivd provides a cloud-based service platform that enables, through the use of image data, captured by way of camera surveillance at customer locations,  mapping and analyses of visitor flow data ("the Services"). Personal data captured by the surveillance cameras is instantly anonymized.
  1. Indivd agrees, subject to Customer's timely payment, to make the Services available to Customer, on a non-exclusive and non-transferable basis:-
      1. for the term stated in the Order Form (the “Term“) and
      2. in accordance with the Service Description, Appendix 1.
      3. at the location and on the premises stated in the Order Form (the “Premises“);

        Customer’s right to use the Services is limited to the Premises and the Term.

  2. INDIVD’S UNDERTAKINGS

    1. The Services shall meet the service levels specified in the Service Level Agreement, Appendix 2. Apart from that, the Services are available as is.
    2. Indivd reserves the right to, from time to time and in its sole discretion, make updates. Updates may entail improvements, additions and modifications. It may also entail removal of functionalities, or correction of errors and defects. Indivd disclaims any liability arising from such updates. Such updates should be made at no cost to Customer and may require that Customer grants Indivd access to the Premises during the Term or that Customer installs updated versions of the Services that are sent to the Hardware(s).
    3. Indivd is not responsible for ensuring that the Customer’s own Internet access, connections, nets, IT security and firewalls work properly. Indivd is not responsible for any interruptions or errors in information arising from the transmission over the Internet.
    4. Indivd is not responsible for ensuring that the Customer’s Hardware(s) or people counter hardware, other needed system works properly or has adequate safety and security measures in place, depending on the chosen Services.

  3. CUSTOMER’S UNDERTAKINGS

    1. In order to set up the Services, Customer shall allow Indivd, or the other personnel that Indivd engages, to place and install necessary installations which, depending on the chosen Services, may include the Hardware(s). Customer shall also ensure that other appropriate preparations are made prior to the installation.
    2. Customer shall also allow Indivd to access the Premises during the Term to make necessary updates to the Services, or install updated versions of the Services that has been sent to the Hardware(s).
    3. Customer is responsible for ensuring that its Internet access, connections, nets, IT security and firewalls work properly. Customer acknowledges and agrees that the Services is dependent on Internet access to function, and that Indivd is not responsible for any interruptions and errors in information arising from faulty Internet access.
    4. Customer acknowledges that some of the Services are dependent on hardware (i.e. cameras, physical firewall) to function. Customer is, depending on the chosen Services, responsible for ensuring that the Hardware(s) and software, including people counting systems work properly and that adequate safety and security measures, including encryption, are in place. Such measures shall comply with Indivd's Safety Guidelines, Appendix 3. Customer acknowledges and agrees that Indivd is not responsible for any Hardware(s) or such software. This also includes any Hardware(s) and systems needed to process the stream of data, including personal data between the Customer’s local network and the server.
    5. Customer can choose to either use their existing hardware (irrespective of whether the servers are cloud based or on-site), lease hardware via a third-party provider, or use server hosting. On the Customer's request, Indivd can arrange for Customer to get in touch with a third-party provider for this purpose. Any agreement on hardware may however, depending on the chosen Services, be separately agreed and entered into between Customer and the thirty party provider.  The hardware is hereinafter referred to as the “Hardware(s)”. Indivd is not, depending on the chosen Services, responsible for providing the Hardware(s) or responsible for any issues related to the Hardware(s). For the avoidance of doubt, as between Indivd and Customer, Customer is the owner of/in control of the Hardware(s), regardless of whether Customer chooses to use its existing hardware (cloud-based or on-site) or lease hardware via a third-party provider.
    6. Customer agrees to not copy, modify, transfer, reverse engineer or reverse compile the Services or any part thereof (or any Intellectual Property Rights of Indivd), nor shall Customer prepare any own derivative works incorporating the Services or part thereof or attempt to create a substitute or similar services through use of, or access to, the Services.
    7. The Customer further agrees and accepts that all information the Customer receives regarding the Services is valuable information belonging to Indivd and, as such, shall be treated as confidential information by the Customer in accordance with Section 9 below.
    8. Customer will have the ability to access all its accounts, including the ability to access, monitor, use, modify, withhold, or disclose any data available and associated with its accounts and, dependant on the chosen Services, the Hardware(s).
    9. Customer acknowledges that it can pass on the rights within its organization to access and administer its account. Customer is thus responsible for: (a) maintaining the confidentiality of the password and accounts); (b) designating those individuals who are authorized to access the accounts; and (c) ensuring that all activities that occur in connection with the accounts comply with this Agreement.
    10. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Indivd of any unauthorized use of, or access to, the Services of which it becomes aware.
    11. Unless Indivd specifically agrees otherwise in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, or lease the functional equivalent to the Services to a third party (b) use the Services for high-risk activities such as controlling or monitoring employee behaviour or children; or (c) use the Services on behalf of or for the benefit of any entity or person who is prohibited from using the Services by Swedish laws or regulations.
    12. Customer has a duty to provide information to concerned individuals under the GDPR.
    13. Insofar as applicable, Customer is responsible for any changes in the environment at the Premises, with respect to, for example, remodelling, reconstruction, changed placement of hardware for people counting etc can affect the functionality/statistics of the Services.

  4. RECOMMENDATIONS AND GUIDELINES

    1. Indivd will provide Customer with Safety Guidelines that Customer should adhere to. Such Safety Guidelines include, but are not limited to, provisions on the following;
      1. encryption of the stream of recorded material between the Customer’s people counting hardware and the server to avoid unauthorized use of the stream of personal data,
      2. securing of the IT systems on the Customer’s server to avoid manipulation of the software and data leakage;
      3. recommended security levels on the Customer’s IT environment with respect to amongst other firewalls and logging and analyzing potential threats and risk, to avoid unauthorized access of incoming and outgoing traffic between the server and Individ’s cloud.
    2. Customer is advised that all use of the Services by Customer shall comply with Indivd’s Ethics policy, current version can be found at https://indivd.zendesk.com/hc/en-gb/categories/19654274113938-Legal.

  5. FEES, PAYMENT AND INVOICING

    1. As compensation for the Services, Customer shall pay the applicable Fees to Indivd as specified in the Order Form. Insofar as applicable, Indivd's measurement tools will be used to confirm Customer’s usage of the Services.
    2. Adjustments. At the end of the Initial Term and any Extended Term, the Service Fees may be increased (but, for the avoidance of doubt, not decreased) in accordance with the most recent final adjustment of the European Union’s Labour Cost Index ("LCI") for the European Union and the Information and Communication Trade, using June each year as the base month, in comparison with the LCI at the start of the Initial Term or then-current Extended Term, as the case may be. The index is available on the website of Eurostat. In addition, Indivd is entitled to, at the latest three (3) months before the end of the Initial Term (or the Extended Term, as the case may be), adjust the Service Fees by an additional amount by way of a written notice to the Customer to take effect from the start of the next relevant Extended Term. If the Customer does not accept such adjustment (made in addition to the LCI adjustment) the Customer may choose to terminate the Agreement from the end of the Initial Term (or the Extended Term, as the case may be) by giving Indivd written notice thereof within ten (10) days from Indivd's notice of such Service Fee adjustment. If such termination is not made within said time, the Agreement will continue with the new Service Fees.
    3. Payment shall be made by Customer no later than 30  days from date of invoice. In case of overdue payments, Indivd is entitled to claim interest in accordance with the Interest Act (Sw: Räntelagen). All payments due are in SEK unless otherwise indicated on the Order Form or invoice.

      Purchase Orders
    4. Customer may select to have Purchase Order:
      1. If Customer wants a Purchase Order number on its invoice, Customer will inform Indivd and issue a Purchase Order to Indivd ahead of signing the Order Form and state the Purchase Order Number on the Order Form. Any terms and conditions on a Purchase Order do not apply to the Agreement and are null and void.
      2. If Customer has not stated a Purchase Order number on the Order Form Indivd is nevertheless entitled to invoice Customer and Customer agrees to pay invoices.

  6. SUSPENSION OF THE SERVICES

    1. If Customer fails to pay the applicable Fee on time, Indivd is entitled to suspend the Services for non-payment. In such event, Indivd will continue to charge Customer the applicable Fee on a monthly basis during Customer’s suspension for non-payment and Customer must pay all such outstanding Fees in order to resume its use of the Services. If Customer remains suspended for non-payment for more than sixty days, Indivd may terminate Customer for cause pursuant to Section 13.
    2. In addition to the foregoing, Indivd also has the right to suspend the Services if Indivd becomes aware of Customer’s violation of the Agreement, or in case of a security risk to you, us or any third party.

  7. INTELLECTUAL PROPERTY RIGHTS

    1. Each Party shall remain the owner of all intellectual property rights owned by it prior to entering into the Agreement or created outside the scope of the Agreement. Nothing in the Agreement shall be considered as transfer or license to such intellectual property rights, except for each Party's limited right of use as set out in this section 8.
    2. All rights, title and interest in and to the Services, including but not limited to all inventions (whether or not patentable), copyright, designs, trademarks, database rights, knowhow, Data and Insights (as defined below), anonymization and analysing method, documentation, concept, code and logic, including any modification, updates or upgrades thereof, shall at all times belong to and remain the property of Indivd (the “Indivd Intellectual Property Rights“). Nothing in the Agreement shall be considered as a transfer or license to such Indivd Intellectual Property Rights, except for the Customer's limited right to use the Services during the Term in accordance with the Agreement. Customer agrees not to challenge any Indivd Intellectual Property Rights and undertakes to notify Indivd immediately if Customer becomes aware of or suspects any unauthorized use of the Services or of any potential infringements of Indivd Intellectual Property Rights.
    3. The Services will comprise collection and anonymization of camera surveillance image material into anonymized data, including but not limited to visitors' purchasing behaviour and how people move around in retail environments and make purchases (the “Data“) and the Services produce analysis, statistics and insights from such Data ("Insights"). Data and Insights do not comprise any personal data (as such have been anonymized) and Customer cannot be identified by way of the Insights.
    4. Other non-anonymized data and data that identifies Customer belongs to Customer.
    5. For the avoidance of doubt, and insofar as any of Customer’s intellectual property rights form part of the Insights, they shall remain vested in Customer, and Indivd is granted a perpetual, royalty-free right to use such intellectual property rights within the Services.
    6. Indivd hereby grants to Customer a non-exclusive right to use the Insights, originating from use of the Services at Customer's Premises, within Customers’ business operations. Customer's license hereunder is perpetual, royalty-free, and includes a right to develop and modify the Insights as Customer sees fit.
    7. Indivd hereby grants the Customer the non-exclusive and limited right during the Term to use Indivd's trade name and trademark on its website solely for the purpose of informing of the Parties' cooperation.
    8. Customer hereby grants to Indivd, during the term and thereafter, the non-exclusive, and irrevocable right to display and market the Customer's trade name and trade mark for marketing purposes in print, online or any other form of media.

  8. CONFIDENTIALITY

    1. The Parties undertake during the term of the Agreement and thereafter not to disclose to third parties Confidential Information, as defined below, received from the other Party under the Agreement and not to use such Confidential Information for any other purpose than anticipated in the Agreement.
    2. For the purpose of the Agreement “Confidential Information” shall mean any and all information exchanged between the Parties relating to the Parties, their operations, and the use of the Services –  including but not limited to technical, practical or commercial information, save as provided under a-e below:
      1. Information, which a Party can show was in its possession before receiving it from the other Party.
      2. Information, which a Party has received or will receive from a third party without restraints as to the disclosure thereof.
      3. Information, which is authorized in writing by the disclosing Party to be disclosed without restriction.
      4. Information, which a Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other marketplace.
      5. Information, which is known or which will become known to the public other than by breach of the obligations in the Agreement.
    3. Notwithstanding the foregoing, the Parties understand and agree that either Party may, to the extent it deems necessary or appropriate, disclose Confidential Information to potential licensees or investors. Each Party undertakes to make such disclosures subject to a confidentiality agreement.

  9. PERSONAL DATA

    1. Each Party shall comply with applicable data protection laws.
    2. Where Indivd acts as a data processor and processes personal data on behalf of the Customer, such processing shall be regulated by a data processing agreement.

  10. FORCE MAJEURE

    1. Neither Party shall be liable for any costs or damages due to delay or non-performance under the Agreement arising out of any cause or event beyond such Party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other Party as a result of war, fire, labour dispute, power or other mechanical failure, computer virus, natural disaster, pandemic, governmental action, disruption in public communications or the like.

  11. LIMITATION OF LIABILITY

    1. Indivd’s total aggregate liability under the Agreement, both in relation to Customer and in relation to the Customer’s use of the Services, will be limited to direct damages and in no circumstances whatsoever exceed ten (10) per cent of the applicable Fees paid by Customer to Indivd for the Service during the twelve (12) months preceding the circumstance giving rise to the claim at hand.
    2. Unless a damage has been caused by Indivd’s gross negligence or intent, Indivd shall under no circumstance be obliged to compensate Customer for indirect damages or loss of data.

  12. TERM

    1. The Agreement becomes effective on the date of signing by both Parties.
    2. Term and Renewal:
      1. Standard Agreements: The Agreement will remain in force for the period stated in the applicable Order Form (the "Initial Term") and will thereafter be automatically renewed for successive periods of twelve (12) months each (each an "Extended Term"), unless terminated by either Party by giving six (6) months' written notice prior to the end of the Initial Term or any Extended Term.
      2. Pilot Agreements: If the Order Form explicitly states that this Agreement is a "Pilot Agreement," the Agreement will remain in force for the pilot period specified in the Order Form (the "Pilot Term"). Unless terminated by either Party by giving written notice prior to the end of the Pilot Term, the Agreement will automatically convert into a Standard Agreement as described in clause 2a, commencing with an Initial Term of twelve (12) months, and will thereafter be renewed as per the terms of the Standard Agreement.

    3. Each Party may terminate the Agreement with immediate effect if the other Party has breached any provisions of the Agreement and fails to rectify such breach within thirty (30) days from written notice about the breach from the non-breaching Party, or in the event that the other Party is placed into insolvent liquidation, enters into composition negotiations, or is otherwise insolvent.

    4. Upon termination of the Agreement, for whatever reason, Indivd shall close down the Services and make these unavailable to the Customer without undue delay. The Customer shall return any products, property, or documentation belonging to Indivd, as well as cease all use of the Services immediately.

  13. AUDIT

    1. Indivd has the right to perform an audit of the Services at the Customer’s Premises or remotely once a year. Indivd will provide ten (10) days notice before any such audit is conducted.

  14. ENTIRE AGREEMENT; MODIFICATION; WAIVER; ASSIGNMENT

    1. The Agreement contains the entire agreement between the Parties in connection with the subject matter of the Agreement and supersedes any previous written or oral agreement between the Parties on the matters dealt with in the Agreement.
    2. Indivd reserves the right at any time to amend these General Terms without notice and to impose new or additional terms or conditions.
    3. Notwithstanding the foregoing, Indivd shall give Customer thirty (30) days’ notice for material adverse changes to the General Terms, unless it would not be reasonable to do so due to circumstances arising from legal, regulatory, or governmental action; to address user security, user privacy, or technical integrity concerns; to avoid service disruptions to other users; or due to a natural disaster, catastrophic event, war, or other similar occurrence outside of Indivd's reasonable control. In the event that Indivd does make material adverse changes to the General Terms, Customer will have the right to terminate the Agreement in writing within fourteen (14) days of receiving notice thereof. Absent such termination, the Customer shall be deemed to have accepted the new terms and conditions of the Agreement.
    4. Amended General Terms will govern and apply to the Agreement and in all respects replace and supersede any previously agreed general terms between the Customer and Indivd.
    5. A waiver of any term, condition or provision in the Agreement by either Party shall be valid only if given in writing and only in the instance for which given and shall not be deemed continuing; further, any such waiver shall not be construed as a waiver of any other provision of the Agreement.
    6. Failure to exercise or assert any right or remedy shall not constitute a waiver of such right or remedy or of the same right or remedy in another case or of any other right or remedy.
    7. A Party may not assign the Agreement or any rights or obligations under it without the prior written consent of the other Party.

  15. SEVERABILITY

    1. If a court of competent jurisdiction holds any provision of the Agreement invalid or unenforceable, the other provisions of the Agreement will remain in full force and effect. Any provision of the Agreement held invalid or unenforceable only in part or in degree will remain in full force and effect to the extent not held invalid or unenforceable.

  16. GOVERNING LAW AND DISPUTE RESOLUTION

    1. The Agreement will be governed by Swedish law without regard to its conflicts of law provisions.
    2. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the relevant Swedish court(s). Stockholm district court shall be the court of first instance.

 

 

 

 

Version: 1.1

Date: 16 September 2024

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