GENERAL TERMS – EngageSales AB
These General Terms govern and apply to the entire contractual relationship between the Customer and EngageSales by reference on www.engagesales.com and/or by reference in the Services.
If you register for a free trial of the EngageSales Services, the applicable provisions of these Terms will govern that free trial.
- Services and right to use
2.1 Subject to the terms and conditions of this Agreement, the Customer is given a non-transferable, non-exclusive, non-sublicensable, limited term, world-wide right to permit Users to access and use the Services subject to the terms of this Agreement. The Services and their features are described on www.engagesales.com.
2.2 The Services will be made available to the Customer during the term of the Agreement and only after entering the Agreement. The Customer is aware that EngageSales may at any time implement new versions and upgrades of the Services.
2.3 EngageSales will use commercially reasonable efforts to make the Services available over the Internet 24 hours a day, 7 days a week but cannot guarantee that the Services will be uninterrupted or error free. Measures that may affect the aforementioned accessibility are inter alia scheduled maintenance, which EngageSales will schedule to the extent practicable during the weekend or outside normal business hours (Sweden (CET)) unscheduled emergency maintenance and any other cause beyond EngageSales’ reasonable control, including but not limited to the Customer’s access to the Internet.
2.4 A new customer may be entitled to a Free Trial, unless the customer has applied for the account as a result of an ongoing marketing campaign organized by EngageSales. If the period of Free Trial has expired, the account will be automatically deactivated. In order to prevent deactivation or to reactivate the account, the customer is required to select a suitable plan and pay the fee.
In addition to the current collection of plans, EngageSales may offer special discounts and motivation schemes (for example finder’s fees, etc.).
- Customer Support
EngageSales will, as part of the Services and at no additional cost to the Customer, provide the Customer with EngageSales’ standard customer support service. The customer support service will be provided during normal business hours (Sweden (CET)) on days when commercial banks are open to the general public in Sweden.
- The Customer’s obligations
4.1 The Customer may only and represents and warrants that it will only, use the Services in accordance with (a) this Agreement.
4.2 The Customer shall not use, or permit the use of, the Services in any way that could damage, overburden, disable, impair or otherwise hinder or interfere with EngageSales’ provision of the Services. It is the responsibility of the Customer to ensure the security of the Customer’s passwords and equipment used to access the Services.
4.3 Any and all Customer Data uploaded to, transferred through, processed or entered into the Services by the Customer and/or Users shall be the sole responsibility of the Customer.
4.4 The Customer may not provide access to the Services to any third party except for a third party that is acting as a consultant providing services to and on behalf of the Customer. The Customer is responsible for its consultants’ acts and omissions if and when such consultant is provided access to the Services.
- Upgrades and limitations in the use of the Services
Services with volume restrictions such as users will be automatically upgraded and charged accordingly when the maximum level for the current account is exceeded. Once the upgrade is done the volume levels cannot be decreased during the relevant Agreement term (1 month). The Customer may decrease the volume levels prior to a renewal period by giving EngageSales written notice of such decrease no later than one (1) month before the end of the relevant term.
- Fees and payment terms
6.1 The Customer shall pay all fees specified on www.engagesales.com or as otherwise agreed. Payment obligations are non-cancellable and fees paid are non-refundable, except as set out in section 16.3. All fees are stated exclusive of VAT.
6.2 All invoicing is done in advance. Unless otherwise agreed, payment shall be made within twenty (20) days after the invoice date. Late payment is charged from the invoice due date with twenty (20) per cent of the invoice value per annum, reminder fees will be added. The Customer shall promptly notify EngageSales about change of address. EngageSales reserves the right to immediately suspend delivery of the Services and the Customer’s access to the Services if payment is not received after a reminder has been sent. Any suspension by EngageSales of the Services under the preceding sentences or otherwise in accordance with the provisions of this Agreement, shall not relieve the Customer of its payment obligations under this Agreement and EngageSales shall not be held liable for any loss and/or damage suffered by the Customer as a result of such suspension.
- Customer Data
7.1 All Customer Data is and shall remain the property of the Customer, and EngageSales may only use the Customer Data and statistics in accordance with this Agreement and otherwise in order to fulfil its obligations to the Customer and/or to exercise its rights under the Agreement. EngageSales shall have no liability for such Customer Data. Notwithstanding the above, EngageSales may anonymously include the Customer’s statistics in EngageSales Index and use Customer Data in accordance with section 12.
7.2 It is the sole obligation of the Customer to ensure that it possesses necessary back-up of the Customer Data that it desires to retain when the Agreement is terminated.
7.3 The Customer acknowledges and agrees that, following the effective date of this Agreement’s termination, it will not have access to the Services or to any Customer Data stored in or as part of the Services. EngageSales will delete and destroy Customer Data in accordance with EngageSales’ standard procedures for deletion of data, which inter alia includes that EngageSales will permanently delete and destroy all copies of the Customer Data within a reasonable timeframe.
- Intellectual Property Rights
8.1 EngageSales shall hold title to any and all intellectual property rights and technical solutions in or relating to the Services. Such intellectual property rights and technical solutions may only be used by the Customer in the manner stated in this Agreement. Under no circumstances shall the Customer or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in the Services, or to any trademark or any other business mark belonging to or used by EngageSales. Access to the Services is only granted as explicitly set out herein and the Customer thus only receives the limited right to use the Services for the duration of this Agreement and in accordance with the terms of this Agreement. Any rights not expressly granted herein are reserved by EngageSales.
8.2 EngageSales shall own all suggestions, requests, recommendations, improvement or enhancement request or other input or feedback provided by the Customer or any other party relating to the Services.
8.3 The Customer shall not, directly or indirectly, (i) modify, decompile, disassemble or reverse engineer the Services or attempt to discover the code and/or underlying structure, ideas or algorithms of the Services or any software, data or documentation related to or provided with the Services; (ii)) access or use the Services to build (or support or assist a third party in building) any product or service competing with the Services; or, (iii) in any way transfer or encumber rights to the Services. The Customer shall use the Services explicitly for its internal business operations and not for the operations of a third party.
EngageSales owns the right to disclose the fact that the Customer is a paying customer of EngageSales and the Customer agrees that EngageSales may use the Customer’s name and logo to identify the Customer as a customer of EngageSales on www.engagesales.com and in other promotional and marketing material.
- Delivery Refusal
10.1 In addition to what is otherwise agreed under this Agreement, EngageSales reserves the right to immediately suspend the delivery of the Services or to immediately close all the Customer’s accounts and terminate the Agreement if the Customer uses or has declared its intent to use the Services in violation of the Agreement, any laws or regulations.
10.2 Any suspension of the Services by EngageSales will not relieve the Customer of its payment obligations under this Agreement.
Each party agrees that it will, during the term of the Agreement and thereafter, not use or divulge, disclose or communicate to anyone, without the express written prior authorization of the other party, any information designated proprietary, internal or confidential in nature or otherwise not generally known, including Customer Data, relating or pertaining to the other party’s business, organization or operations that a party may have acquired, directly or indirectly, during the term of the Agreement.
- Statistical information
Notwithstanding anything else in the Agreement and otherwise, EngageSales shall have the right to monitor the Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner, solely for the purpose of compiling statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or contain confidential information of the Customer. EngageSales retains all intellectual property rights in such statistical information.
- Limited Warranty
13.1 EngageSales warrants that the Services will under normal use and circumstances perform substantially and materially in accordance with how the Services are presented on www.engagesales.com.
13.2 Except for the express warranties set forth in section 14.1 above the Services are provided on an “AS IS” basis and with all faults. To the furthest extent permitted under applicable law, EngageSales expressly disclaims and excludes from the Agreement all other conditions, terms and/or warranties of any kind with respect to the Services, whether express or implied, including without limitation any conditions, terms and/or warranties for the fitness of the Services for a particular purpose and/or the correspondence of the Services to any description and/or that the Services will be uninterrupted and/or error free and/or completely secure. The Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of privacy, confidential information and property.
- Limitation of Liability
14.1 In the event of major defects that seriously impede the Customer’s use of the Services and that are attributable to EngageSales, EngageSales undertakes to use its best endeavours to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by EngageSales, EngageSales otherwise assumes no responsibility for defects, interruptions or deficiencies in the Services. The Customer shall not be entitled to a reduction in payment (or repayment of fees paid), or to damages or other sanctions in the event of operational disruption or errors that impede the use of the Services, unless caused by EngageSales with intent or gross negligence.
14.2 EngageSales’ liability under this Agreement shall under all circumstances be limited to an amount that, together with amounts associated with all other claims from the Customer, corresponds to the lesser of the agreed fees paid by the Customer for the Services during the period of three (3) months immediately prior to the breach of contract that entitles the Customer to damages.
- Force Majeure
Each party shall be entitled to suspend performance of its obligations under the Agreement to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the reasonable control of the affected party such as fire, war, extensive military mobilization, acts of terror, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstances referred to in this section 15.
The party claiming to be affected by force majeure shall notify the other party in writing without delay immediately upon the commencement of the event of force majeure.
- Term and termination
16.1 This Agreement enters into force upon acceptance by the Customer and continues for the Initial Period specified therein (and for any Renewal Terms thereafter as further set out below).
16.2 If not otherwise specified, the Agreement shall automatically renew for additional periods equal to the expiring Initial Period, unless either party gives the other written notice of non-renewal at least one (1) months before the end of the relevant term. Fees for the Services during any such renewal term shall be the same as that during the prior term unless EngageSales has given the Customer a written notice of an increase of the fees at least three (3) months prior to the end of such prior term, in which case the fee increase shall be effective upon the start of the new Renewal Term.
16.3 Each party shall be entitled to prematurely terminate the Agreement in writing where the other party is in material breach of its obligations under the Agreement and fails to effect rectification within ten (10) days of a written demand therefore or if the other party becomes bankrupt or otherwise insolvent. Upon termination by the Customer for material breach under this section 16.3, EngageSales shall refund the Customer any prepaid fees for the remainder of the Agreement period. Upon termination by EngageSales for material breach under this section 16.3, the Customer shall pay all fees for the remainder of the Agreement period
16.4 Termination shall be made in writing and shall be signed by the terminating party. The Customers termination shall be sent to EngageSales’ office in Lund or by email to firstname.lastname@example.org. A non-payment is not considered to be a termination.
EngageSales reserves the right to amend these General Terms and such amended General Terms will thereafter govern and apply to the entire Agreement and in all respects replace and supersede any previously agreed general terms and conditions between the Customer and EngageSales. The Customer shall be informed of such amendments by email and the Customer shall be deemed to have received such notice within two (2) weeks of the notice being sent by email. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the date the email was sent, provided that the changes have a material adverse effect on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions of the Agreement.
Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the above, EngageSales shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement without the Customer’s prior consent (i) to a company within the same group of companies as EngageSales; or, (ii) in connection with a sale of all, or substantially all, of the assets of EngageSales to a third party.
19.1 This Agreement shall be governed by the laws of Sweden without reference to its principles on conflict of laws.
19.2 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”).
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 Lund. The language to be used in the arbitral proceedings shall be English.
19.3 Notwithstanding any other provisions of this section 19, any action for collection of any payment obligation may be brought in any court with competent jurisdiction.