Terms and ConditionseMarketeer by Follow-Up Systems Sweden AB
These general conditions regulate the relation between Follow-Up Systems Sweden AB, (org. nr 556631-4497) ( “FUS”) and the Customer, and constitute an integrated part of the agreement reached between the parties with respect to software concept eMarketeer ( “Agreement” ). Agreement is made online through Customers choice on given options and accept the content of the agreement as conclusive.
1. Follow-Up Systems Sweden AB
FUS, is a leading actor within development of SaaS (Software as a service) within e-Marketing. FUS provides tools to automate distribution of information, response and follow-up processes in order to optimize customer communication and customer service.
FUS provides software for automation of customer care and communication to optimize your time, revenue and relations with your customers.
FUS’s vision is to create the leading system platform and to be the natural choice for companies that want to optimize customer care and communication.
FUS’s mission is to help companies around the world become experts at communicating with, and learning from their customers.
On the terms and conditions set out in this agreement with appendices (the ‘Agreement’), FUS offers the Customer a software concept (‘eMarketeer’) that allows the customer to create, carry out and follow-up its activities within marketing, sales, training and internal communication per e-mail or the Internet. Examples of such activities are newsletters, campaigns, customer satisfaction reviews, invitations, questionnaires, evaluations and event administration.
eMarketeer allows companies to get to know their customers, partners and staff’s needs, interests, values, priorities etc.
eMarketeer is a so-called SaaS platform (Software as a service), whereby FUS is responsible for the hosting, support and maintenance (HSM) of the eMarketeer application servers, database servers, mail servers and Internet access.
FUS provides hosting, support and maintenance (HSM) of eMarketeer (Application, Web, Database and Mail server SMTP).
- Redundant internet access
- Fire protected server halls, class 90D
- Staffed hosting environment and surveillance 24 hours a day, 7 days a week by certified personnel
- 99% availability to eMarketeer
- Backup is taken everyday
- Secure login
- Firewall with redundant firewalls and continuously surveillance of internet
- Connections to support fast detection of intrusion attempts
- Redundant power supplies, UPS/Diesel, UPS protection from any deviation in power supply, automatic power supply from diesel generator in case of longer power breaks.
- Hosting and servers are located in Sweden and are hence inside the European Union
The implementation of eMarketeer starts after approval of Agreement. eMarketeer will be available for customer use according to the time frame the parties have agreed on. Upon implementation, the Customer shall designate contact persons/users. The Customer undertakes to safeguard that the same number of contact persons are appointed at all times within the Customer’s organization. The Customer’s contact data provided online should administer, as well as FUS contact data according to homepage
Interactive training for the eMarketeer users is included through films and manuals. The parties are in agreement that the Customer shall have a right to additional training and consultation services in accordance to current price list.
FUS offers the contact persons/administrator support for use of eMarketeer by e-mail and telephone. The support is available Mondays-Fridays 09.00 to 17.00 CET, however not on public holidays, and only 09.00 to 13.00 CET on the day before holiday. The support is available only to registered users. The following issues are covered by support obligations:
- Support and advise in administration of eMarketeer
- Problems that arise in connection with the use of eMarketeer
The following issues are not covered by support obligations:
- Production of activities in eMarketeer
- Configuration of eMarketeer against e.g. operational systems and data bases
- Repair of databases
- Use of other applications that are linked to eMarketeer
- Problems related to operational systems, data bases, networks, hardware and or peripherals that are not part of eMarketeer
In the event that FUS deems that the need for support by Customer cannot be met in an acceptable and practical manner over phone or e-mail, FUS will offer consultancy services in accordance with current price list.
6. Scope of the service
6.1 FUS shall provide eMarketeer in accordance with the Agreement including any supplemental agreements.
7. Rights of Customer
7.1 Customer is hereby granted a non-exclusive, non-transferable right to use eMarketeer in accordance with the Agreement.
7.2 The usage of eMarketeer by the staff of the Customer requires personal registration and log-in by users. In connection with the registration of each user, each user shall accept and approve an undertaking in accordance with main Agreement (User Undertaking), online at FUS homepage.
Customer is fully responsible for the staff that is offered access to the service. Connection to eMarketeer can be made from an unlimited number of work stations within the Customer’s own business.
7.3 FUS owns or holds through license from rights holders, all rights to eMarketeer and any new versions thereof.
7.4 Customer shall not make or permit sale transfer or service bureau use of eMarketeer or the making of any modifications, additions or enhancements to eMarketeer, or cause or permit the reverse engineering, disassembly, or decompilation thereof. Copyright and all other rights concerning modifications of the service shall inure to FUS without any separate compensation.
8. System requirements and access to Internet
8.1 Access to eMarketeer is obtained over Internet from the computer equipment of the Customer. Customer shall at its own cost and expense keep available for users equipment with updated web browser software and Internet connection of the requisite standard to use eMarketeer in an acceptable way. Recommended system requirements can be obtained from FUS.
9. Updates and new functionality
9.1 FUS carries out ongoing development of eMarketeer and the service will be upgraded with new functionality from time to time. FUS has the right to upgrade the service without notice, provided that the modified functionality does not diminish performance or accessibility. General modifications are provided as part of eMarketeer hereunder. Major upgrades are made available as soon as general availability is at hand.
9.2 The Customer has the option to enhance eMarketeer with additional modules from FUS. Once delivered to the Customer, such modules form part of the eMarketeer service. Additional Modules are added after the parties have entered into supplemental agreements.
10.1 The use of eMarketeer can be made after receiving personal log-in information. Customer undertakes to follow the Agreement, as well as, all instructions for use and safety instructions issued by FUS. Furthermore, the Customer shall see to it that all its users have approved Secrecy- and User Undertaking appended to User Undertaking.
11. Maintenance, support and availability
11.1 FUS shall use its reasonable efforts to ensure that eMarketeer is available over the Internet without interruption. Errors under FUS control shall be made by FUS. Customer shall report errors in accordance with the applicable FUS routines. FUS shall always be allowed a chance to correct errors before a breach of contract is at hand.
11.2 FUS shall have the right to take actions that affect availability of the service provided that such effect is justified from a technical or security perspective. FUS shall as far as possible inform the Customer in advance of any planned interruptions in availability.
12.1 FUS is not liable for the information stored in eMarketeer. This includes information included by FUS.
12.2 With the limitations pursuant to this Agreement, FUS is liable for direct damages due to willful misconduct or gross negligence by FUS.
12.3 FUS is not liable for indirect losses, such as lost profits, diminished production, costs of retaining a consultant, costs of equipment and similar costs or losses.
12.4 FUS obligation to pay damages in the case of breach of contract is, in the absence of intent or gross negligence by FUS, limited to an amount equalling the accumulated HSM-fees paid by the Customer during the preceding 6 month-period. The point in time when the breach of contract was claimed.
12.5 FUS hereby warrants that eMarketeer does not infringe upon any right held by a third party. Customer shall without delay and in writing notify FUS of claims presented by third parties concerning infringements of copyright or other intellectual property right on account of the Customer’s use of the service.
12.6 In the event that a third party presents claims purely on account of the Customer’s use of the service, the Customer shall keep FUS indemnified from such claims
13. Sub-consultants and third party products
13.1 FUS is entitled to freely appoint sub-consultants. FUS is responsible for work performed by the sub-consultant, however not for any errors or defects caused by third-party software.
13.2 FUS shall not be liable for defects in the equipment of Internet access of the Customer.
14.1 All business information disclosed by one party to the other in connection with this Agreement, shall be treated as confidential information unless such information is part, or later becomes part, of the public domain through no fault of the other party or it was later obtained by the other party from independent sources free from any duty of confidentiality. Each party’s confidential information shall be held in strict confidence by the other party, both for the duration of this Agreement and thereafter, exercising the same standard of care as it uses to protect its own confidential information, and shall not be used or disclosed by the other party for any purpose except as necessary to implement or perform this Agreement, or except as required by law.
14.2 FUS undertakes to ensure that its staff is covered by confidentiality undertakings in relation to the information of the Customer included in eMarketeer.
14.3 Customer is responsible for ensuring that user names and passwords are guarded safely, are used only by the intended users and do not come into the hands of any unauthorized users. Furthermore, Customer is responsible for any unauthorized use of the service through its equipment or systems.
14.4 FUS shall have the right to mention the Customer as reference in its marketing activities (including web page with use of the Customers official logo), both during the term of agreement and thereafter.
15. Protecting and handling personal information
15.1 The Customer is using both manual and automatic processing of personal data that exists in eMarketeer. The processing of personal data is regulated by privacy laws and the Customer is responsible for the correct management of such data in accordance with current local as well as international legislation. FUS will never share personal data with any third party in other circumstances than what will be needed to comply with the Agreement.
15.2 FUS reserves the right to review, process and store the personal data and Customer Information that the Customer stores in eMarketeer in order to secure the quality and development of the application, but otherwise have no right to use the Customer Information beyond what is necessary to comply with the Agreement.
15.3 To prevent unauthorized access and/or use of eMarketeer, FUS uses secure login via HTTPS (Hypertext Transfer Protocol Secure), a protocol for encrypted transport of data via the HTTP protocol as well as personal user credentials and acceptance of end user license agreement for all users. For more on security see chapter 2.
16. Fees and payment
16.1 Customer shall pay fees and expenses in accordance with the Agreement. All amounts are exclusive of VAT and other taxes and duties.
16.2 Payment for ’subscription’ shall be made per mount ten (10) days from the day of the invoice in arrears. Thirty (30) day payments is possible but requires a credit evaluation. FUS may apply a late charge on overdue invoices at a rate allowed by applicable law, whichever is less, from the day after the due date until the outstanding invoice or part thereof has been paid in full.
16.3 Payment for pay as you go’ shall be made per month ten (10) days from the day of the invoice in arrears. Thirty (30) day payments is possible but requires a credit evaluation. FUS may apply a late charge on overdue invoices at a rate allowed by applicable law, whichever is less, from the day after the due date until the outstanding invoice or part thereof has been paid in full.
16.4 Card payment for the ‘pay as you go’ pay plan is paid in arrears.
16.5 Separate reimbursement for costs shall be payable for all expenses connected with performance of services under the Agreement are invoiced monthly in arrears.
17. Term, termination and downgrades
17.1.1 Subscription – Fixed monthly fee
Agreement is running after the customer approved the agreement. The termination notice period is three (3) months from the date of FUS receives written notice of the termination. The three (3) months notice pertains to cancellations as well as downgrades.
17.1.2 Subscription – Pay as you go
This agreement applies from the date the Customer approved the Agreement and as long as the customer uses the service. The termination notice period is three (3) months from the date of FUS receives written notice of the termination. The three (3) months notice pertains to cancellations as well as downgrades.
17.1.3 Subscription – Yearly fee
Agreement applies for a period of twelve (12) months from the start date of the subscription. Unless written notice of termination of the agreement is provided no later than three (3) months prior to the end of the agreement period, the agreement will be prolonged by one (1) year. The three (3) months notice pertains to terminations as well as downgrades.
17.2 Each party is entitled to rescind the agreement in the event that the other party is in material breach thereof and does not rectify the breach within thirty days from obtaining written notice thereof.
Each party is entitled to rescind the agreement in the event that the other party is declared bankrupt, enters into composition proceedings or liquidation or can otherwise be assumed to have become insolvent.
17.3 FUS shall have a right to Customer’s access to eMarketeer with immediate effect if the Customer uses the service:
- In a way constitution a criminal act or contrary to applicable law (especially personal data protection legislation and anti-spamming legislation);
- In a way constitution a risk of damage for FUS or a third party;
- In a way constitution a breach of FUS safety instructions;
- Despite non-payment of fees or costs pursuant to the agreement.
18. Consequences of termination
18.1 Upon termination of the agreement, it is Customer’s responsibility to copy and save previously stored information. FUS is responsible for customer data will be erased from the eMarketeer database/s.
19.1 A party (including its sub-contractors) is relieved from liability for a failure to perform an obligation under the Agreement if such failure is due to a circumstance of the type stated below (Relieving circumstance) and the circumstance prevents or makes substantially more difficult the timely performance of such obligation.
A Relieving circumstance shall be deemed to include inter alia acts or omissions of authorities, new or amended legislation, leaving of personnel, illness or other reduction of work capacity, death, conflicts on the labour market, blockade, fire, flood, loss or destruction of property or data of major significance or a major accident.
19.2 If a party wishes to claim relief pursuant to the above provisions, then he shall without unreasonable delay inform the other party thereof in order to be able to invoke such a claim.
19.3 Notwithstanding the above (with regard to relief from liability), a party may under the stated circumstances rescind the agreement if the other party’s performance of a certain obligation has been delayed by more than three months.
20.1 Customer may not in wholly or partly assign its rights and/or obligations under this Agreement to any third party without the prior written approval of FUS.
21.1 FUS reserves the right to change prices for eMarketeer in addition to general changes in the price list on a yearly basis.
21.2 Notwithstanding the above, FUS shall always have the right to with immediate effect carry out changes (including price) that are caused by acts or omissions of authorities or new or amended legislation.
21.3 FUS reserves the right to adjust final invoice amounts at the invoice issue date according to prevailing EUR, USD and SEK exchange rates. The Swedish Crown (SEK) is our base currency and EUR and USD prices will reflect the currency exchange rate between these currencies and the SEK.
22. Disputes and governing law
22.1 Any dispute arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the provisions of the Swedish Arbitration Act (SFS 1999:116).
The arbitration proceedings shall be conducted in English and take place in Stockholm, where the award shall be made.
22.2 This Agreement shall be construed in accordance with and be governed by the laws of Sweden.