These Terms & Conditions (the “Terms”) which govern the use of the Service (as defined below) have been entered into between Hysminai AB (“Sparta”), a company incorporated under the laws of Sweden with Swedish company registration number 556948-5831, and the “Customer”, as defined in the main agreement or order confirmation (jointly referred to as the “Main Agreement”). The parties’ entire agreement (the “Agreement”) consists of the Main Agreement, which defines the specific terms between the parties, and these Terms. In case of discrepancies between the Main Agreement and these Terms, the Main Agreement shall prevail.
1.1 The following terms shall have the meaning ascribed to them below:
the “Site” means, in these Terms, the domain and sub-domains of www.spartasales.com.
the “Service” means, in these Terms, the basic service (without any add-ons) provided on the Site by Sparta with its current features on the day of signing of this Agreement, or as otherwise specified in the Main Agreement.
“User” means, in these Terms, any authorized user (including Power Users) of the Service.
“Power User” means, in these Terms, a User of the Service with special privileges, which enables the Power User to manage of a team of Users and set up Competitions.
“User Account” means, in these Terms, the personal password protected account used to identify specific Users during their use of the Service.
“License” means, in these Terms, the Customer’s right for its designated Users to use the Service, and the individual conditions that apply (e.g. number of Users/Power Users, term etc.) for such Customer.
“Pilot Period” means, in these Terms, a License to use the Service during limited time period, shorter than the ordinary twelve (12) months.
“Competition”, means, in these Terms, a sales competition for Users created by a Power User in the Service.
“Content” means, in these Terms, all texts, graphics, videos, pictures and all other information, such as Competition material, that the Customer, Users or anyone else uploads and/or publishes or in other ways makes available for others at or via the Service.
“Third Party Sites” means, in these Terms, any site not provided by Sparta.
2 THE SCOPE OF THE SERVICE
2.1 The Service is a performance management solution, which enables sales organizations to run, track and accelerate initiatives that drives their sales performance, engagement and results. Sparta offers online sales Competitions, coaching and sales training. The Service is available online at the Site.
2.2 Sparta may provide additional functions (add-ons) to the basic Service at the Site. These are however not included in the License unless specifically mentioned in the Main Agreement. Should the Customer like to use these add-ons, the Customer will be additionally charged.
2.3 Sparta reserves the right to modify, suspend, and/or discontinue properties of the Service at any time, with or without notice. All new functionality, features or services introduced to the Service will be subject to the Agreement. Sparta will make reasonable efforts to keep the Service operational and fully functional during updates.
3.1 Sparta grants the Customer a non-exclusive and non-transferable License to use the Service. The License may consequently only be used for the specific Customer’s internal purposes and may not be resold. This does not include performance of services for the benefit of third parties, nor the use by the Customer’s affiliated companies.
3.2 The Customer’s License entitles a certain number of Users to use the Service. Number of Users and Power Users, contract period and specific terms for the relevant Customer are stipulated in the Main Agreement.
3.4 The Customer shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to access and use the Site and the Service, as well as paying all third-party fees and access charges incurred while using the Service.
4 USER ACCOUNTS
4.1 The Customer is solely responsible and liable for all access to and all actions and activities conducted under any of its designated User Accounts, as well as its designated Users’ use of the Service. The Customer shall immediately inform Sparta about any unauthorized use of its User Accounts.
4.2 Sparta reserves the right to suspend any User or terminate any User Account if activities occur which constitutes or may constitute a violation of the Agreement, Sparta’s instructions or of any applicable local or international laws, rules or regulations. Each User may cancel their own User Account at any given time, without regard to any period of notice.
5 USE OF DATA
5.1 Sparta maintains the right to use the Customer’s and its Users’ information, including Content, in an anonymized, consolidated and aggregated manner with other customers’ information in marketing activities; to improve, develop and modify the Service; and to compile statistics and other marketing information.
5.2 Sparta can extract data related to the Customer for an additional fee upon request. Such requests must however always be made prior to termination of the Agreement. Individual Users may make equal requests regarding da-ta related to themselves.
6 PAYMENT & FEES
6.1 The Customer shall pay all invoices within fifteen (15) days after the invoice date. Prior to the start of each contract term, the Customer will be invoiced for the full amount due for the coming term.
6.2 Interest on overdue payment shall accrue according to the Swedish Interest Act (Sw. räntelag (1975:635)), and collection fees will be charged when applicable. Sparta shall, in addition to other remedies, be entitled to suspend or terminate the Customer’s and its Users’ access to the Service, until payment is made.
6.3 Sparta reserves the right to change their listed License fees (available at the Site) at any time, whereby the new fees will apply when an ongoing subscription is extended. It is the Customer’s responsibility to stay informed of any price changes. However, Sparta undertakes to notify the Customer before the extension of a subscription, if the applicable License fees have been increased with ten (10) percent or more. Such notice will be given by mail. Notice will however, for the sake of clarity, not be given in cases where a discounted License subscription is extended and the, higher, listed License fee applies to the coming term.
7 DURATION AND CANCELLATION
7.1 The Agreement shall commence and remain in force as stated in the Main Agreement. Unless the Agreement is cancelled in writing by either party at least sixty (60) days prior to the expiration of the Agreement, the Agreement will be extended automatically for twelve (12) months, whereas Sparta’s at the time of the extension current fees will apply. If the Customer terminates the Agreement in advance, there will be no refund of payment.
8 PILOT PERIODS
8.1 Sparta may offer special terms for the use of the Service for a Pilot Period, in accordance with the provisions set forth in the Main Agreement. A Pilot Period can, notwithstanding what is stated in clause 7 above, be cancelled with seven (7) days’ notice, and will, if not terminated, be automatically pro-longed with twelve (12) months, whereas Sparta’s at the time of the extension current fees will apply.
9 PROHIBITED USE OF THE SERVICE
9.1 The Customer shall use the Service for lawful purposes only. The Customer agrees not to use the Service for posting, transmitting or otherwise distributing illegal material.
9.2 The Customer agrees to, within the scope of the Service and in relation to Sparta: not defame, abuse, harass, threaten or otherwise violate the legal rights of others, including Sparta; not publish, post or in any other way express any topic, material or information that is inappropriate, defamatory, infringing, obscene, pornographic, racist, terrorist, politically slanted, indecent or unlawful; not contribute to destructive activities such as dissemination of viruses, spam or any other activity that might harm Sparta, the Service or Users in any way, and not use programming codes or commands when communication in the Service.
10.1 The Service includes functions for uploading, posting, linking and communicating and otherwise making Content available for others, for example through setting up Competitions. The Customer is at all times responsible for the Content uploaded or otherwise made available by its designated Users.
10.2 By uploading Content to the Service, the Customer warrants that it is either the owner of the Content or that it holds a valid permission to such Content from the appropriate right holder and that the Content, or the Customer’s use thereof, is in no way a violation of any national or international legislation.
10.3 Sparta makes no representation or warranty as to the accuracy, timeliness, quality, completeness, suitability or reliability of any information or data accessed on or through the Service. No information obtained from Sparta or the Service shall create any warranty if not expressly stated in the Agreement. Sparta does not examine or take any responsibility with regards to the validity of information provided by the Users.
11 INTELLECTUAL PROPERTY
11.1 The Service and its original content, features, functionality, and design elements are and will remain Sparta’s exclusive property. The Customer’s use of the Site and the Service is limited to the rights granted to the Customer under the Agreement. Sparta’s intellectual property may not be used in connection with any product or service without Sparta’s prior written consent.
11.2 The Site, the Service or any portion thereof may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any purpose inconsistent with the limited rights granted to the Customer under the Agreement.
12 THIRD PARTY SERVICES
12.1 Sparta assumes no responsibility for the content, advertising, goods or services, privacy policies or other practices of any Third Party Sites that may be reached by links presented in the Service. The Customer and its Users are responsible for evaluating whether to access or use a Third Party Site or to be bound by any applicable terms found therein. Furthermore, the Customer agrees that Sparta is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such Third Party Sites.
13.1 The Customer shall compensate Sparta with respect to all direct and indirect liability, losses, damages, costs or expenses caused, arising out of, or in connection with (i) the Customer’s negligence, (ii) the Customer’s breach of these Terms, or (iii) the Customer’s misuse of the Service.
13.2 In the event Sparta materially breaches this Agreement, and such breach remains uncured for a period of more than three (3) days after notice from the Customer, the Customer shall be entitled to a refund equal to one (1) day’s License fee pro-rata for every day that the material breach remains uncured, however limited to a maximum of thirty (30) days or any shorter period left of the ongoing contract term. Such refund claim must be presented to Sparta in writing within fifteen (15) days.
13.3 After the passing of thirty (30) days (or any shorter period left of the ongoing contract term), and if the material breach remains uncured, the Customer has the right to terminate the Agreement with immediate effect and to claim a refund equivalent to one (1) day’s License fee pro-rata for every day that remains of the Agreement term.
13.4 The Customer has no further rights to compensation, outside of what is stated in this clause 13.
14 LIMITATION OF LIABILITY
14.1 Sparta does not guarantee uninterrupted, secure or error-free operation of the Service. The Service is provided “as is” without warranties of any kind, whether expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance. Sparta is not responsible for neither technical, hardware or software malfunctions, nor lost or unavailable network connections, downtime or disconnections from User Accounts.
14.2 Sparta is not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the Service or User Accounts.
14.3 To the maximum extent permitted by applicable law, in no event shall Sparta be liable for any, indirect, incidental, special, consequential or exemplary damages, however caused and under any theory of liability arising out of or in connection with the Agreement. This shall include, but not be limited to, any loss of; profit, goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
14.4 If Sparta is found to be liable to the Customer for any damage or loss which arise out of or is any way connected to the use of the Service, Sparta’s liability shall in no event exceed the amount of the latest twelve (12) months’ worth of License fees paid by the Customer. Such claims must be presented to Sparta in writing within fifteen (15) days from when such damage or loss was, or should have been, discovered.
15 BREACH OF THE AGREEMENT
15.1 Should the Customer, or any of its designated Users, use the Service in violation of the Agreement, Sparta shall have the right to: i) delete any Content produced by the Customer, ii) terminate the Agreement, and iii) receive a reasonable compensation for its losses connected to the Customer’s violation.
15.2 Sparta reserves the right to directly limit the use of or access to the Service and to block, restrict or delete any Content at any time, for any reason and without liability, if such use, access or Content constitutes or may constitute i) a violation of the Agreement in general or of any applicable local or international laws, rules or regulations, or ii) a risk of harming Sparta’s trademarks, goodwill or reputation.
16 CHANGES TO & ASSIGNMENT OF THE AGREEMENT
16.1 The Main Agreement may only be amended in writing signed by an authorized representative of both parties.
16.2 Sparta may, at any time and for any reason, amend these Terms by publishing the amended Terms on the Site. The amended Terms shall automatically be effective upon publishing.
16.3 Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by either party without the prior written consent of the other, provided, however, that either party may assign this Agreement in whole without the other party’s prior consent to a successor in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates, on condition that such successor agrees in writing to comply with all terms and conditions of this Agreement.
17 FORCE MAJEURE
17.1 The parties shall be relieved from any liability for any delay or failure to perform any obligation under this Agreement during such period and to the extent that the due performance thereof by either of the parties is prevented by reason of any circumstance beyond the reasonable control of the party (“force majeure”), such as war, warlike hostilities, labor disturbances, fire, flood, or other circumstances of similar importance.
17.2 The party desiring to invoke an event of force majeure shall immediately provide the other party with a written notice.
17.3 If the performance of the Agreement is severely hindered for a longer period than three (3) months due to a force majeure event, either party shall be entitled to terminate the Agreement with immediate effect. Upon termination due to a force majeure event, each party shall bear its own costs incurred by the termination.
18 GOVERNING LAW AND DISPUTE RESOLUTION
18.1 The Agreement shall be construed in accordance with, and governed by, Swedish law. Disputes arising in connection with this Agreement shall be settled by the public courts, if the amount in dispute is less than SEK two hundred fifty thousand (250 000), whereas Stockholm District Court shall be the first instance. The amount in dispute shall include the plaintiff’s claim in the summons application and any counterclaim made by the defendant in its defense.
18.2 If the amount in dispute exceeds SEK two hundred fifty thousand (250 000), the dispute shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceeding shall be English.
18.3 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.