Appendix C - General Terms

1. Definitions

1.1 “Agreement” means the agreement between Customer and Membrain including any appendices attached thereto and including these general terms and conditions.

1.2 “Authorized User” means an individual employee or consultant of Customer who has been provided access to the Products by and on behalf of Customer in order to use the Products as ordered by Customer. For each Authorized User of the Products Customer must purchase an Authorized User License.

1.3 “Confidential Information” means (a) the Products and any trade secrets related to the foregoing and (b) all other information which is disclosed by Membrain or Customer (hereinafter referred to as the “Disclosing Party”) to the other Party (hereinafter referred to as the “Receiving Party”) orally, electronically, visually, or in a document or other tangible form or medium, which is either identified as or should be reasonably understood to be confidential and/or proprietary.

1.4 “Fees” means the fee identified in this Agreement.

1.5 “Initial Term” means the time period defined in 6.1 (Term) of the Membrain SAAS-agreement.

1.6 “Intellectual Property Rights” means any and all intellectual property rights including – but not limited to – (a) patent rights and patent applications; (b) rights associated with works of authorship including copyrights and mask work rights and registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) moral rights; (e) any right analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

1.7 “Products” mean Membrain SAAS offerings.

1.8 “Product Upgrade” means new orders or upgrades of the Products or increase the number of authorized Users during the Term.

2. Internet Access

2.1 A high speed Internet connection is required for proper transmission of the Products. Customer is responsible for procuring and maintaining the network connections that connect its network to the Products, including, but not limited to, updated latest or second latest versions of the “web browsers” Microsoft Internet Explorer, Google Chrome or Firefox and to follow procedures for accessing services that support the access to the Products. Membrain is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer’s Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Membrain. Membrain assumes no responsibility for the reliability or performance of any connections as described in this section.

3. License Grants

3.1 Subject to the terms of this Agreement and any fees hereunder, Membrain hereby grants to Customer, for the term of the Agreement a non-exclusive, non-transferable right to access the Products for the sole purpose of using the Products and storage of Customer information therein. The Products may only be used by Customer, or any permitted third parties, for such purposes that have been expressly permitted by Membrain. To use the Products Customer must create valid user account(s) and keep all information current, accurate and true.

3.2 For the avoidance of doubt, it is expressly agreed that the Customer’s right to use the Products shall include an obligation for the Customer and Authorized Users to comply with all, if any, instructions and guidelines as may generally be issued by Membrain during the term of the License Agreement.

3.3 As a condition of Customer’s use of the Products, Customer and Authorized Users will not use the Products for any purpose that is unlawful or prohibited by this Agreement. Customer and Authorized Users may not use the Products in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the Products. Customer and Authorized Users may not intentionally interfere with or damage the operation of the Products or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. Customer and Authorized Users may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Products, features that prevent or restrict the use or copying of any content accessible through the Products, or features that enforce limitations on the use of the Products. Customer and Authorized Users may not attempt to gain unauthorized access to the Product, or any part of it, other accounts, computer systems or networks connected to the Products, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Products or any activities conducted on the Products. Customer and Authorized Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Products. Customer and Authorized Users agree neither to modify the Products in any manner or form, nor to use modified versions of the Products, including (without limitation) for the purpose of obtaining unauthorized access to the Products.

3.4 Except as permitted by this Agreement, the Customer and Authorized Users shall not:
a) copy, the Products for any purpose nor arrange or create derivative works based on the Products without Membrain's express prior written consent in each case;
b) modify or in any other way change or alter the Products, nor allow anyone else to do so;
c) itself or permit others to decompile, reverse-engineer, disassemble, modify or in any other way change or alter the Products or any part thereof, or
d) take any action that imposes an unreasonable or disproportionately large load on the System; use the Products, to bypass the System login architecture or create or provide any other means through which the System may be accessed, and/or the Products may be used by others.

3.5 Membrain reserves the right, in Membrain’s reasonable discretion, to temporarily suspend Customers and Authorized Users access to and use of the Products: (a) during planned downtime for upgrades and maintenance to the Products and Service (of which Membrain will use commercially reasonable efforts to notify Customer in advance (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Customers Account or use of the Products by Customer and/or Authorized Users. We will use commercially reasonable efforts to schedule Planned Downtime during off-peak hours weekends (Central European time zone).

4. Data Storage and Transmission

4.1 Customer gives Membrain all the permissions necessary and provides Membrain access to Customer’s Data and Authorized Users accounts in order for Membrain to provide the Products and services. These permissions also extend to trusted third parties Membrain work with to provide the Products and services, for example Amazon or other third parties, who provides storage space etc.

4.2 Membrain shall use commercially reasonable efforts to maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data. Membrain shall not: (a) modify Customer’s Data with the exceptions stated in this Agreement; (b) disclose Customer’s Data except as compelled by law, this Agreement or as expressly permitted in writing by Customer; or (c) access Customer’s Data except to provide the Products and services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

4.3 Customer is responsible for the data it stores in the cloud and any third-party claims regarding the same. Customer understands and agrees that neither Membrain nor the Cloud Partners have control over the content of the data processed and that Membrain (or the Cloud Partner, as applicable) performs the Services on Customer’s behalf. If Customer transmits data to another storage system such transmission and any related interaction is solely on Customer’s risk. Neither Membrain nor the Cloud Partners will be responsible for any disclosures, modifications or deletions of your data resulting from any such transmission. Neither Membrain nor the Cloud Partners make any warranties about, or will have any liability for, such transmissions.

4.4 The Products and services may be subject to limitations, such as, for example, limits on disk storage space, on the number of calls You and Authorized Users are permitted to make against Our application programming interface, or other usage limits. Membrain will notify You of such limits.

5. Fees and Payment

5.1 Customer shall pay Fees as set forth in the Agreement. Payment by Credit Card or against Invoice. Unless otherwise indicated, all Fees associated for the Products are due in full upon commencement the Term. Fees are non-refundable unless specifically specified in this Agreement.

5.2 If Customer increases the use of the Products, orders new services or features, upgrades of the Products and services or increase the number of Authorized Users during the Term any incremental Fees associated with such Service Upgrade etc. will be prorated over the remaining period of the then current Term, charged to Customer’s Account and or invoiced due and payable upon implementation of such Service Upgrade. In any subsequent Term, the Fees will reflect any such Service Upgrades, unless the Products and services are otherwise changed for the subsequent Term as reflected by change orders as agreed between the parties in writing.

5.3 No refunds or credits for Products Fees or other Fees or payments will be provided to Customer if Customer elects to downgrade the services ordered during the Term. Downgrading the services may cause loss of content, features, or capacity of the Service as available to Customer under its Account, and Membrain does not accept any liability for such loss.

5.4 Customer shall fully pay all Fees for the Products and relates services ordered. Customer is responsible for providing Membrain with valid payment and credit card information and/or invoice address and related information to secure payment. Membrain reserves the right to cancel any order if the payment, invoice or credit card information you provide is not valid. Payment may be processed in cooperation with third party payment service providers.

5.5 If Customer shall fail to pay any Fee on the date due for payment, then Membrain may suspend the services or terminate this Agreement immediately without further notice. Upon termination, the licenses granted by Membrain to Customer under Article 3 will automatically expire. In addition to any other remedies available under this Agreement or according to applicable law, Membrain shall in event of Customer’s delay with any payment hereunder, be entitled to:
a) immediately suspend performance of all Products and services under this Agreement or otherwise in relation to Customer until full payment has been received; and
b) receive all costs of collection plus interest on all unpaid amounts, calculated at an annually rate equivalent to the current EURIBOR (1 month) plus eight (8) per cent.

5.6 The amounts payable to Membrain pursuant to the Agreement are exclusive of any taxes (including withholding taxes), duties or governmental charges and Customer’s payment of license fees shall be made free and clear without deduction for any and all present and future taxes (including withholding taxes), duties or governmental charges imposed by any taxing authority.

5.7 Customer shall pay any and all applicable banking and transactional fees etc. that may be associated with the licensing payments.

6. Confidentiality

6.1 Neither Party shall disclose Confidential Information to any third Party. Each Party shall further protect and treat Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event less than reasonable care. Except for the rightful execution of its rights under this Agreement, neither Party shall not use, make, or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the other Party. Each Party shall only disclose Confidential Information to its employees having a need to know for the purposes of this Agreement. Each Party shall notify and inform such employees of its limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and shall obtain or have obtained its employees' agreements to comply with such limitations, duties, and obligations.

6.2 The obligations set forth under Article 6.1 above shall not apply in with regard to information that:
a) is or becomes known by the Receiving Party without an obligation to maintain its confidentiality (as evidenced by Receiving Party’s written records);
b) is or becomes generally known to the public through no act or omission of Receiving Party;
c) is independently developed by the Receiving Party without use of the Confidential Information (as evidenced by Receiving Party’s written records); or
d) is required to be disclosed by law, order or regulation or governmental agency or court of competent jurisdiction.

6.3 In the event that Receiving Party is required to disclose Confidential Information pursuant to law, order or regulation or governmental agency or court of competent jurisdiction, such Party shall notify the Disclosing Party of the required disclosure with sufficient time to seek relief, cooperate with the Disclosing Party in taking appropriate protective measures, and shall make such disclosure in the fashion which maximizes protection of the Confidential Information from further disclosure.

6.4 The obligations set forth under this Article 6 shall continue for as long as the Confidential Information is of value to disclosing party.

6.5 You agree that Membrain and the service providers We use to assist in providing the Products and services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the services, including, without limitation, in response to Your support requests. Any third-party service providers We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the services and will be subject to confidentiality obligations.

6.6 Membrain may also access or disclose information about You, Your Account, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Membrain’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

6.7 We may collect certain information about you, your information as well as your devices, computers and use of the Products and services. We use, disclose, and protect this information as described in Our Privacy Policy, the then-current version of which is available at www.membrain.com/privacy-policy and is incorporated into the Terms.

7. Intellectual Property Rights

7.1 Except as expressly licensed to Customer under Article 3.1 above, Membrain retains all right, title and interest in and to the Products and services.

7.2 As between you and us, you own all right, title and interest in and to the stored materials; Membrain is only a custodian of such data when it is stored in the Customer’s account(s).

8. Proprietary Notices

8.1 Customer and Authorized Users shall retain, reproduce, and apply any copyright notices and/or other proprietary rights notices included on or embedded in the Products and services.

9. Membrain’s Indemnification responsibility

9.1 Membrain will defend, indemnify, and hold harmless Customer, its parents and affiliates, licensors and partners, and its and their respective members, employees, contractors, officers, and directors, from and against any actions, claims, costs, demands, liability and expenses, including reasonable attorneys’ fees, arising out of it’s breach of the Agreement.

10. Customer’s Indemnification Liability

10.1 Customer’s use of the Products and services constitutes your agreement to defend, indemnify, and hold harmless Membrain, its parents and affiliates, licensors and partners, and its and their respective members, employees, contractors, officers, and directors, from and against any actions, claims, costs, demands, liability and expenses, including reasonable attorneys’ fees, arising out of your use or misuse of the Products and services, the Software etc. with the use of your account.

11. Limitation of Liability

11.1 Membrain shall in no event (including breach of any warranty hereunder) be liable for any indirect, punitive, special, incidental, or consequential damage in connection with or arising out of or relating to the Agreement (including loss of business, revenue, profits, use, data, or other economic advantage), even if any exclusive remedy provided for in this Agreement fails of its essential purpose.

11.2 Membrain’s liability under this Agreement shall be limited to the amount actually paid by the Customer for the Products during the 12-month period before an indemnification claim. In no event shall Membrain’s aggregate liability for all incidents during the term of the Agreement exceed the aggregate amounts actually paid by the Customer for the Products during the 12-month period before the latest indemnification claim.

12. Premature termination

12.1 The Agreement may be terminated by either Party immediately in case:
a) the other Party commits a material breach of any provision of the Agreement and fails to rectify such breach within thirty (30) days after written notification thereof from the suffered Party; or;
b) the other Party commits a non-remedial material breach of any provision of the Agreement; or;
c) the other Party becomes insolvent, ceases its operations, dissolves, files for bankruptcy or bankruptcy protection, appoints receivers, or enters into an arrangement for the benefit of creditors.

12.2 Notwithstanding other grounds for termination that may be contained in the Agreement, non-payment of any monies due to Membrain – in addition to any other remedies under applicable law, such as penalty interest, compensation for costs incurred and suspension of performance until all monies due are duly paid – shall be deemed as a material breach by Customer within the meaning set out above.

13. Consequences upon Termination

13.1 In the event of termination of the Agreement, Customer’s and Authorized Users’ right to use the Products and storage of information shall automatically expire upon the day of termination. Within thirty (30) days from the day of termination, the Customer and Authorized Users shall stop using the Products, close down its accounts and within forty-five (45) days transfer its data elsewhere if Customer wants to keep such data after expiration or termination of this Agreement.

13.2 After the expiration of this forty-five (45) day period Membrain is entitled to erase any and all Customer Data from its or Cloud Partner’s systems.

13.3 The provisions of Article 6 (Confidentiality), 7 (Intellectual Property Rights), 8 (Proprietary Notices), 11 (Limitation of Liability), 13 (Consequences upon Termination) and Article 16 (Governing Law, Disputes) shall survive any termination of this Agreement as well as any other term or condition which by its nature is clearly intended to survive termination of this Agreement.

14. Notices

14.1 Under this Agreement, you consent to communicate with Membrain electronically. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

15. Assignment

15.1 Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of Membrain.

15.2 Membrain may assign or otherwise transfer any of its rights or obligations under this Agreement to a third party, without the prior written consent of Customer, provided that the assignee agrees that all of the assigned obligations under this Agreement shall be fully binding upon such assignee.

16. Governing Law, Disputes

16.1 This Agreement is governed by and will be construed in accordance with the laws of Sweden without regard to conflicts of law principles and the parties hereby consent to the sole and exclusive jurisdiction of the Swedish courts, with the district court of Solna as first venue, to resolve any disputes hereunder.