Effective date: November 12, 2022
The Data Processing Agreement is referred by these terms, see section "Data processing and security" below.
Terms and Conditions for DFRNT SaaS
These terms and conditions (the “Agreement”) shall govern your use of our Services, when active subscriptions through Paddle are procured for Services provided at https://dfrnt.com.
If you register with our Services, submit any material to our Services or use any of our Services, we will ask you to expressly agree to our terms and conditions, including this agreement.
This agreement regarding software as a service (the “Agreement”) is entered into
- DFRNT AB, with reg. no 559395-0156 and address Sankt Lars väg 41b, 22271 Lund, Sweden (the “Supplier”); and
- you (the ”Customer”).
Together referred to as the “Parties” and each a “Party”.
1.1 The Supplier provides a software as a service available through https://dfrnt.com, to help build and visualise data models and contents of graph data products, and thereto related services, including but not limited to graph data product hosting and support services, as further described in this Agreement (hereinafter referred to as the “Service” or “Services”)
1.2 The Parties have entered into the Agreement for the purpose of setting forth the terms for the Suppliers provisioning, and Customer´s use, of the Service.
2.1 Affiliate means any legal entity that is directly or indirectly controlled by, or that is under common control, by Party or a legal entity controlled by it. Control shall be understood as ownership of at least fifty (50) % of the voting rights in a legal entity or the power to direct the management of a legal entity or control the composition of its board of directors.
2.2 Confidential Information means any and every information, technical, commercial or whatever nature, whether written or oral, which given the nature of the information or the circumstances under which it was disclosed to the other Party reasonably should be deemed as confidential, including but not limited to information relating to the Services and/or to Party’s business, intellectual property, technology, pricing, marketing ideas, sales data, financing plans, contracts and the terms of this Agreement.
2.3 Customer Data means data provided by Customer, or on Customer’s behalf, to the Supplier via the Service and Customers use thereof.
2.4 Data Protection Laws means any data protection law applicable to a Party, including but not limited to the EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
2.5 Documentation means the then-current and Service Description, Service Level Agreement (“SLA”), available on the Suppliers website and included in this Agreement by reference.
2.6 Fees shall refer to subscription cost for the Service to be invoiced to Customer according to the then-current pricelist available on the Suppliers website, or made available upon request by the Customer.
2.7 Intellectual Property Rights means all copyrights and related rights, design rights, registered designs, patents, trade and service marks (registered and unregistered), database rights, semi-conductor topography rights, know-how, and all other intellectual property rights throughout the world for the full term of the rights concerned.
2.8 Suspension or Suspend means disabling Customer’s access to and/or use of the Service or components thereof.
2.9 Third-Party Services means parts of the Service that are not provided by the Supplier but that Customer may access or use in connection with the Service.
3. The Service
3.1 The Supplier shall provide the Service described in Schedule Service Description and the Documentation, and Customer may use the Service, in accordance with the terms in this Agreement.
4.1 At present, only email support is offered. The email support is offered via email@example.com on a best effort basis.
5. Changes to the Service
5.1 The Supplier may update the Service from time to time during the Term and such updates may entail changes in functionality or performance of the Service. However, the Supplier will not perform any update that result in a material reduction of the overall functionality or performance of the Service, without (i) providing Customer a written notification hereof in advance and giving the Customer the right to terminate the Agreement and its use of the Service according to section Term and Termination, or (ii) providing materially similar functionality.
5.2 Customer agrees that its purchase of the Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by the Supplier regarding future functionality.
5.3 The Supplier may update the Documentation, including but not limited to the SLA, during the Term provided that (i) the changes do not result in a material reduction of the overall functionality or performance of the Service.
5.4 Information regarding any changes or updates to the Service or Documentation will be provided to Customer on Supplier’s website.
6. Customers Access rights
6.1 Subject to Customers compliance with the Agreement, Supplier grants Customer a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to use the Service for Customers own internal business purposes in accordance with the terms of this Agreement.
6.2 Customers use of the Service will be subject to the usage limits, such as number of users, categories of users, territory or other similar limitations, as specified in the applicable Service Description (hereinafter referred to as “Usage Metric”). Supplier may monitor Customer’s usage and bill Customer for any usage beyond the Usage Metric after notifying Customer of such costs.
7. Customer obligations
7.1 Customer shall (i) only use the Service in accordance with this Agreement (including the Documentation) and all applicable laws and regulations, (ii) ensure that Customer data do not contain any malicious code, files, scripts, agents or program causing harm, including but not limited to viruses, worms, trojan horses or backdoors, (iii) ensure that all passwords, and other information necessary to access the Service, is kept strictly confidential and that all contact information is correct and updated, (iv) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Service, (v) promptly notify Supplier if Customer becomes aware of any unauthorized access or use of the Service, (vi) be responsible for the accuracy and legality of Customer Data, including but not limited to the means by which Customer acquired Customer Data and Customer’s use thereof within the Service (vii) be responsible for all actions taken via Customer’s Account, and (viii) fulfill the applicable hardware, browser and other technical requirements necessary to access and use the Service (such requirements shall be made available by the Supplier upon request) and (ix) maintain backup of Customer Data.
8. User restrictions
8.1 Customer shall not (a) copy, modify, create derivative works of, translate, reverse engineer, decompile or disassemble the Service or otherwise attempt to extract or gain access to the source code of the Service (to the extent such restriction is permitted by law), (b) sell, resell, license, distribute, rent or lease the Service or provide hosting or managed services to third parties or otherwise commercially exploit or make the Service available to, or use the Service for the benefit of, any third part,(c) use the Service to process infringing, abusive or unlawful material, (d) use the Service to store or transmit malicious code (to the best of Customers knowledge), or (e) interfere with or disrupt the integrity or performance of the Service or circumvent any limitations or security features in the Service.
9. Temporary Suspension
9.1 The Supplier may temporarily and immediately Suspend the Service if (i) necessary to protect the security, availability or integrity of the Service or the Supplier’s infrastructure, (ii) Customer use the Service in contrary to the Agreement, or (iii) Customer’s payment is overdue for more than fifteen (15) days after the invoice due date.
9.2 Supplier will notify Customer of the cause for Suspension without undue delay and the Suspension will only persist to the extent necessary to resolve the cause for Suspension. Supplier shall also use commercially reasonable efforts, with regard to the circumstances given rise to the Suspension, to provide Customer with notice and an opportunity to remedy Customer’s breach the Agreement prior to a suspension. For the avoidance of doubt, for Customer’s uncured material breach of the contract, Supplier may permanently terminate Customers Access to the Service according to section Term and Termination.
10. Third-Party Terms
10.1 Components or parts of the Service may contain Third-Party Services, including open source software, and are solely governed by the terms provided by such third parties and subject to third-party copyright and other Intellectual Property Rights (“Third-Party Terms”). Customers hereby understands and agrees to be bound by Third-Party Terms for its usage of the Service and Customer shall indemnify and hold Supplier harmless for any claims directed or action brought against Supplier for Customers use of any Third-Party Services. Supplier shall keep a list of the then-current Third-Party Services at its website.
10.2 The Supplier do not take any responsibility whatsoever for Third-Party Services, including but not limited to the quality, accuracy or legality thereof, and reserves the right to immediately terminate the use of Third-Party Services if a third-party service provider do not enforce necessary measures to cure any breach of agreement or infringement of third parties Intellectual Property rights.
11. Intellectual Property Rights
11.1 As between the Supplier and the Customer, Supplier own all rights, title, interest, including but not limited to all Intellectual Property Rights, in and to the Service, as well as any development and modifications of the Services done under, or in relation to, this Agreement. No rights, implied or otherwise, are granted to Customer hereunder other than as expressly set forth herein.
11.2 Customer retains all Intellectual Property Rights in Customer Data and Customer grants Supplier a worldwide, non-exclusive, royalty-free right to use the Customer Data solely for the purpose of providing Services to Customer in accordance with the Agreement.
11.3 Customer may provide Supplier feedback regarding the Services and the usage thereof, entailing for instance suggestions, enhancements requests or corrections of the Service, and if Customer decides to do so, Customer grants to Supplier a worldwide, perpetual, irrevocable, unlimited, and royalty-free right to use and/or incorporate such feedback and suggestions into its services.
11.4 The Supplier may collect and analyze information related to the usage and performance of the Service based on Customers use (hereinafter referred to as “Statistics”). Statistics shall be based on anonymized and aggregated data, meaning information not identifying any individual and data from several customers combined, and presented in a manner not identifying the Customer. The Supplier owns all rights, title, and interest to Statistics and will use the same for business purposes including but not limited to improving the Service.
11.5 For the avoidance of doubt, Third-Party Services are solely provided under the applicable Third-Party Terms and such Third-Party Terms shall have precedence over the provisions of this Agreement.
12.1 A Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) shall keep Confidential Information strictly confidential and not disclose such Confidential Information to any third party without the Disclosing Party’s prior written approval. The Receiving Party may only use the Confidential Information for the purpose of, and in accordance with, this Agreement and undertakes not to use the Confidential Information for any other purposes whatsoever.
12.2 The Receiving Party may disclose the Confidential Information only to employees, representatives and consultants that have a direct need to know it for the purpose of the Agreement. The Receiving Party shall ensure that such employees, representatives and consultants are bound by no less protective obligations than those set out in this Agreement. The Receiving Party shall be liable to the Disclosing Party pursuant to the provisions set forth in this Agreement for any breach by its employees, representatives or consultants.
12.3 Receiving Party agrees to protect Confidential Information of the Disclosing Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
12.4 The obligation of confidentiality set forth in this section shall not apply to Confidential Information that (a) was known to the Receiving Party prior to the time of disclosure by the Disclosing Party, (b) was in the public domain prior to the execution of this Agreement or comes into the public domain during the term of this Agreement without any breach of the Agreement, (c) has been independently developed by the Receiving Party without reference to or use of the Confidential Information, or (d) that the Receiving Party is obliged to disclose by law or decision by a court of law, provided that the Receiving Party has notified the Disclosing Party and taken any possible and reasonable action in order to minimize the risk of damage.
13.1 Indemnification by Supplier
13.1.1 The Supplier will indemnify and hold Customer harmless if any third-party claims are directed or any actions brought against Customer by a third-party based on the allegation that Customer’s use of the Service, as contemplated in this Agreement, constitutes an infringement of such third-party’s Intellectual Property Rights.
13.1.2 The Suppliers indemnification obligation according to section Indemnification by Supplier will not apply to the extent the third-party claim results from (i) Customer’s breach of this Agreement, (ii) Supplier’s compliance with Customer’s specific technical designs or instructions, (iii) the use of Customer Data in the Service, (iv) operation or use of the Service in combination with products not provided or approved by the Supplier, or (v) use of the Service for any other purposes than for which the same have been developed.
13.1.3 If an infringement is definitively found to exist, or if its according to the Supplier is likely that such infringement exists, the Supplier shall at its sole option and expense either i) secure Customer the right to continue using the Service, (ii) modify the Service to make it non-infringing without materially reducing its functionality, or (iii) replace the Service, or the affected part the Service, with a non-infringing and functionally equivalent alternative.
13.1.4 If such measures described in section Indemnification by Supplier does not achieve the desired result, or if such measures are not commercially reasonable, the Supplier may terminate the Service and shall, upon such termination, refund Customer any unused prepaid fees for the Service. The foregoing states the entire liability of the Supplier and Customers exclusive remedy in matters related to infringement of third-party Intellectual Property Rights.
13.2 Indemnification by Customer
13.2.1 Customer will indemnify and hold the Supplier harmless if any third-party claims are directed or any actions brought against the Supplier by a third-party based on the use of Customer Data or Customer’s use of the Service in breach of this Agreement.
13.3 Indemnification Requirements
13.3.1 The above stated indemnification obligations are conditioned that (i) the indemnified Party within reasonable time informs the indemnifying Party in writing of any claims made or actions brought by a third-party, (ii) the indemnifying Party has the sole control over the defense of such action or claim and the sole right to negotiate any agreement or settlement, (iii) the indemnified Party does not make any statement or admission in relation to such action or claim which may prejudicially affect the chances of settlement or defense of such claim or action, and (iv) the indemnified Party reasonably cooperate with the indemnifying Party in assisting the defense of the claim or action by providing all necessary assistance and information to perform the above obligations.
13.4 Exclusive Remedy
This section, Indemnification, states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any third-party claims or actions described in this section.
14. Data processing and security
14.1 The Parties shall process all personal data in accordance with Data Protection Laws.
14.2 The Supplier has implemented and will, during the entire Term, maintain appropriate physical, technical and administrative security measures in order to protect the integrity, security and confidentiality of Customer Data in the Service. The security measures applicable at the date of signing this Agreement are further described in the linked Data Processing Agreement which is an appendix executed together with this agreement. The Supplier will continually evaluate and develop the measures taken in order to ensure an appropriate level of protection in accordance with Data Protection Laws.
15.1 Neither Party has the right to use the other Party’s trademark, name or similar, without the prior written consent of the other Party in each individual case, unless expressly stated in this Agreement.
15.2 By signing this Agreement, Customer agrees that Supplier may use Customer’s name and trademark in Supplier’s marketing material for the purpose of identifying the Customer as a user of the Service. Customer can at any time revoke this right by providing Supplier a written notice hereof.
16. Warranty and Disclaimer
16.1 The Supplier warrants that during the term of this Agreement, the Services will perform materially in accordance with the applicable Documentation. For any breach of the warranty above, Customer’s exclusive remedy are described in section Refund or Payment.
16.2 Except as expressly stated herein, the Service is provided “as-is” and the Supplier disclaims any warranties or representations of any kind, whether expressed, implied, statutory, or otherwise, and the Supplier specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
17. Limitation of liability
17.1 The Suppliers aggregate liability for all damages, losses and claims related to the Agreement shall be limited to the total amount paid by Customer during the twelve (12) month period preceding the event giving rice to the claim.
17.2 The limitation of liability in the section above shall not apply to (i) damages caused by Suppliers gross negligence, fraudulent action or willful misconduct, or (ii) Supplier’s indemnity obligation regarding infringement of third-parties’ Intellectual Property Rights.
17.3 To the extent not prohibited by applicable law, neither Party shall be liable towards the other Party for any lost profits, product, revenue, goodwill, or indirect, special, incidental, consequential, cover, business interruption, or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a Party have been advised of the possibility of such damages or if a Party’s remedy otherwise fails of its essential purpose. For the avoidance of doubt, in no event shall the Supplier be obliged to recover scrambled or lost data, provided that Supplier have implemented the security requirements agreed in this Agreement.
17.4 In order to claim damages, Customer shall notify the Supplier within three (3) months from the event given rice to the claim. If Customer fails to do so, Customer forfeit the right to claim such damages.
18. Force Majeure
18.1 Neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control, including but not limited to, war, pandemic, or natural disaster (a “Force Majeure Event”). Provided that in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented and/or circumvented by the non-performing Party thru commercially reasonable measures such as workaround plans or disaster recovery routines.
18.2 The non-performing Party shall within reasonable time notify the other Party in writing in the event of a Force Majeure Event and its impact on the performance of the obligations under the Agreement. A failure to provide such notice within a reasonable time shall result in an obligation to compensate for the loss that could have been avoided by a timely given notice.
18.3 When the Force Majeure Event has persisted for six (6) months, each Party shall be entitled to terminate the Agreement with immediate effect.
19. Payment terms
19.1 The Supplier will invoice the Fees and Customer will pay such Fees before of upon the payment due date and in the currency as indicated in the applicable invoice.
19.2 If Customers payment is overdue, and Customer has not provided the Supplier an invoice dispute in good faith, such Fees will accrue late interest at the rate of two (2) % or the maximum rate permitted by applicable law, whichever is less, and the Supplier may condition further delivery of the Service on payment terms shorter than those specified in the applicable invoice.
19.3 The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, such as value-added tax, assessable by any jurisdiction whatsoever (together referred to as “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
19.4 If Supplier has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Supplier will invoice Customer and Customer will pay that amount unless Customer provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority.
19.5 If Supplier has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Supplier will invoice Customer and Customer will pay that amount unless Customer provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority.
20. Term and termination
20.1 Term of the Agreement
20.1.1 This Agreement enters into effect once duly signed by both Parties and is effective for an initial period of 3 months. The Agreement will automatically renew for additional twelve (12) months unless either Party provides the other Party a written notification of its intention of non-renewal at least 1 prior the end of the then current term (both the initial period and the renewal period will hereinafter be referred to as the “Term”).
20.1.2 The Fees for each renewal period shall automatically increase in accordance with the terms in the Documentation.
20.2 Termination for Breach
20.2.1 Either Party may immediately, fully or partly, terminate the Agreement if the other Party (i) is declared bankrupt, enters into liquidation, initiates composition proceedings or is subject to a company reorganization or otherwise becomes insolvent or if the Party shows clear indications of future insolvency, or (ii) is in material breach of the Agreement and, if the breach can be rectified, does not fully rectify such breach within thirty (30) days after receiving a written notification.
20.3 Effect of termination
20.3.1 Upon termination or expiration of this Agreement, (i) the Supplier will enable Customer to retrieve Customer Data processed within the Service for a period of 30 days after termination or expiration of the Agreement (“Termination Window”), (ii) Customers access to the Service, with exception for the Termination Window,will terminate, and (iii) each Party shall return, or at the other Party’s option destroy, any and all Confidential Information in that Party’s possession or control within fourteen (14) days, with exception for Confidential Information necessary to exercise rights under this Agreement or if required by law.
20.3.2 After the expiration of the Termination Window, Supplier have no obligation to maintain or provide Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
20.4 Refund or payment
20.4.1 Upon termination of the Agreement according to section Termination for breach above, (i) by Customer, Customer may claim a refund of any prepaid Service fee for the remaining part of the Term, covering the Services not performed by the Supplier, or (ii) by the Supplier, Customer shall pay any unpaid fees for the remaining part of the Term.
21. Governing Law and Disputes
21.1 This Agreement shall be governed by the laws of Sweden.
21.2 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”).
21.3 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.
21.4 The seat of arbitration shall be Malmö, Sweden.
21.5 The language to be used in the arbitral proceedings shall be English.
21.6 The Parties undertake and agree that all arbitral proceedings conducted, including but not limited to 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, with reference to this arbitration clause will be kept strictly confidential. Information covered by this confidentiality undertaking may not be disclosed to a third party without the prior consent by the other Party. Exceptions to the foregoing shall only apply to the extent that disclosure may be required of a Party due to law, an order of a competent court or public authority, or to protect, fulfil or pursue a legitimate legal right or obligation or to enforce or challenge an award.
22. Relationship of the Parties
22.1 The Parties shall perform all of its duties under this Agreement as independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties.
23. Change of control
23.1 In case a Party undergo a change of Control, that Party shall provide the other Party a written notification within reasonable time and the other Party may immediately terminate the Agreement any time within thirty (30) days after it receives that written notice.
24.1 Neither Party has the right to, fully or partly, transfer or assign its rights or obligations under the Agreement without the other Party´s written consent, except for the Supplier that may assign the Agreement, fully or partly, to an Affiliate subject to providing Customer a written notice hereof.
25.1 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, or otherwise prejudice, affect or restrict the rights or remedies of that Party in relation to the other Party.
26.1 Each Party shall throughout the Term hold appropriate insurance coverage against any damages or other compensation that this Agreement may generate.
27.1 The Supplier may engage subcontractors for the performance of all or parts of the Service under the Agreement but will remain liable to Customer as if the Service in its entirety would have been performed by the Supplier.
27.2 To the extent Customer provide a sub-contractor access to Customer’s account, Customer shall in all respects be fully responsible for said sub-contractor’s use of the Service as if it was Customer itself using the Service.
28.1 All notices must be in writing and sent to the other Party’s indicated point of contact. Notices to Customer may be sent to the email address registered by Customer for Customers account accessing the Service. Notification shall be considered received: (i) if sent by registered letter, three (3) days after being handed in at the post office, or (iii) if sent by e-mail, at the time of sending, if the receipt is confirmed.
29.1 Amendments to this Agreement shall be made in writing and be duly signed by both Parties in order to be valid.
30.1 The following provisions shall survive the termination of this Agreement; Intellectual Property Rights, Indemnification, Limitation of Liability, Confidentiality, Effect of Termination, Disputes, Data Processing Agreement, and other terms intended to be applied after the termination of the Agreement.
31.1 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, contrary to law or unenforceable, the provision shall be modified by the court to the extent necessary 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. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted
32. Entire agreement
32.1 This Agreement constitutes the Parties full settlement of all matters, and states all terms, relating to the subject matter of the Agreement and supersedes any prior commitments, promises or agreements, both written and oral, proceeding the signing of this Agreement. Neither Party has, while entering into this Agreement, relied on any statement, representation, or warranty except those expressly set out in this Agreement.