Terms and conditions
SCHEDULE 1 – GENERAL TERMS AND CONDITIONS
1. INTRODUCTION AND SCOPE
1.1 These General Terms and Conditions (the “Terms”) are entered into by and between the entity within the Polygon Group as identified in the Order Form (“Polygon”) and the customer identified in the Order Form (“Customer”); each a “Party” and together the “Parties”.
1.2 Any deviation, clarification or supplement to these Terms shall be agreed in the Order Form in order to be valid. In case of any conflicting terms between the Order Form and its schedules, including these Terms, the Order Form shall take precedence. In case of conflicting terms between the schedules, they shall take precedence in the order which they are listed in the Order Form. However, the Data Processing Agreement shall always take precedence in respect of processing of the Customer’s personal data. To clarify, in the event that the Parties have entered into a frame agreement, the Agreement shall take precedence regarding the provision of the Solution.
2. DEFINITIONS
“Affiliate” means any other legal person or entity that is controlled by a Party, controls the Party or is under common control with the Party. A person or entity shall be deemed to have “control” over another person or entity if such person controls or has power to vote for more than 50 % of the issued and outstanding voting stock or other equity interest of the other person or entity.
“Agreement” means the agreement between the Parties regarding the Solution, formalized in a specific Order Form and its schedules, including these Terms.
“Confidential Information” means technical, commercial or other information, which a Party has specifically stated (in writing or orally) to be confidential, or which by the nature of the information and the circumstances of its disclosure reasonably shall be deemed to be confidential information.
“Description” means the description of the Solution and its functionality set out in a schedule to the Agreement, as updated from time to time and made available by Polygon.
“Implementation Services” means the services provided by Polygon in order to install or otherwise set up the Solution and as specified in the Order Form and/or a Statement of Work.
“Initial Term” means the initial term of the Agreement. If not agreed otherwise between the Parties in the Order Form, the Initial Term is twelve (12) months.
“Intellectual Property Rights” means any intellectual property rights, including but not limited to, inventions, patents, registered and unregistered designs, copyright, registered and unregistered trademarks and trade secrets, including where applicable applications for registration of any of the foregoing rights, and any other rights of a similar nature in any country of the world.
“Order Form” means a written order form executed between the Parties subject to these general terms and conditions, that specifies e.g. the Solution, the use rights, term and applicable fees.
“Polygon Group” means Polygon Group AB, incorporated under the laws of Sweden with registration number 556324-6548, and all legal entities from time to time directly or indirectly controlled by Polygon Group AB.
“Renewal Term” means any 12-months period, or other period agreed in the Order Form, following the Initial Term for which the Agreement has been renewed.
“Services” means the services provided by Polygon to the Customer under the Agreement, including but not limited to, Implementation Services, surveillance, damage mitigation and restoration. The Services are specified in the Order Form and, if applicable, the Statement of Work and described in the Description, including the service levels.
“Solution” means the hardware and proprietary software provided as a service, and the data generated by the software, accessible to the Customer via web or mobile application, together with the Services and all related documentation, provided or made available by Polygon to the Customer under the Agreement. The Solution is specified in the Order Form and described in the Description. The Solution also include all revisions, corrections, modifications, enhancements, improvements and/or updates and upgrades to the foregoing.
“Statement of Work” (SoW) means the specification of Implementation Services for a specific implementation project.
“Term” means the Initial Term and each of the Renewal Terms (if any) collectively.
3. SUPPLY AND DELIVERY OF THE SOLUTION
Polygon provides the Customer with access to the Solution solely for the specified sites and during
3.1 the Term of the Agreement. The Customer shall ensure that it uses the Solution only for the purposes and in the manner expressly authorized in the Agreement and in accordance with these Terms.
3.2 Polygon will notify the Customer of the estimated time of delivery of the Solution. Unless otherwise agreed in the Order Form, Polygon will install and implement the Solution at the Customer’s site(s). Polygon and the Customer shall comply with any local standards and regulations in relation to safety and security on the site and for the installation. The installation services shall be subject to a separate Statement of Work, as set out in the Order Form.
3.3 The Customer shall:
(a) give Polygon (or its sub-contractors) timely access to the Customer’s or any end customer’s premises, office accommodation and other facilities as reasonably required by Polygon to carry out the installation of the hardware and provide the Solution;
(b) co-operate with Polygon in all matters relating to the provision of the Solution;
(c) provide Polygon with such information and materials as Polygon may reasonably require in order to provide the Solution, and ensure that such information and material are complete and accurate; and
(d) comply with Polygon’s reasonable instructions related to the provision of the Solution.
If Customer does not comply with the above requirements, Customer shall reimburse Polygon for any proven and reasonable costs incurred by Polygon due to the non-compliance.
3.4 The Customer is responsible for any equipment and services required for the Customer’s use of the Solution not provided by Polygon, such as power supply and internet-, telecoms- or VPN-connections.
3.5 Polygon shall perform its obligations to supply the Solution with personnel who is adequate, qualified and competent for the purpose, and in a workmanlike manner.
3.6 Polygon may engage sub-contractors for the supply of the Solution, in which case Polygon shall be responsible for its sub-contractor’s acts and omissions as for its own.
4. THE HARDWARE
4.1 All deliveries of hardware will be “Delivered Duty Paid” at the Customer’s site (INCOTERMS 2020). Risk of loss and damage to hardware will pass to the Customer in accordance with the delivery terms.
4.2 If the Customer has not purchased the hardware and consequently, such hardware is subject to the right to use detailed below, the hardware is Polygon’s property and shall be returned to Polygon upon expiration or termination of the Agreement. The Customer shall take proper care of the hardware and otherwise comply with applicable advice and instructions from Polygon regarding care and use of such hardware. Customer shall not tamper with the hardware or otherwise dispose of it in a manner that might cause damage or loss of the hardware. Customer is strictly liable for the hardware and liable to pay damages for any damage to, or loss of, such hardware.
5. RIGHT TO USE AND RESTRICTIONS
5.1 Subject to the Customer’s payment of the applicable fees, Polygon grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to use the Solution during the Term for the Customer’s internal purposes and in accordance with the terms of the Agreement. The right to use is limited to [the number of sensors and the Customer sites] as set forth in the Order Form.
5.2 The Customer undertakes to:
(a) use and otherwise handle the Solution in accordance with the Agreement, the Description and any other instruction provided by Polygon;
(b) not use SIM-cards or other equipment for purposes other than as permitted under this Agreement and in order for Polygon to provide the Solution;
(c) not use the Solution in a way prohibited by law, regulation, governmental order or decree;
(d) not grant access to or otherwise make the Solution available to any unauthorized party;
(e) not (i) attempt to reconstruct or discover any source code or underlying ideas or algorithms of the software included in the Solution and/or the documentation provided by Polygon, in any manner (subject to what follows from mandatory legislation), or (ii) create derivative works from, modify or alter the software and/or the documentation provided by Polygon, in any manner whatsoever; or (iii) use or access the software, hardware and/or the documentation provided by Polygon for the purpose of building a competitive product or service, or building a product or service using similar unique and confidential ideas, features, functions or graphics of the software, the hardware and/or documentation provided by Polygon;
(f) be responsible for the control and administration of permission rights in relation to all users of the software included in the Solution. The Customer is thereby responsible for (i) administration of user accounts, including registration of new user accounts and cancellation of expired user accounts, (ii) the usage of the Solution by all users, (iii) ensuring that login credentials for each user are only used by the physical person who is the named user, and (iv) for maintaining confidentiality of login credentials, security measures and other information provided by Polygon for access to the software. The Customer shall immediately inform Polygon in case of any security incidents where any unauthorized persons may have obtained access to the Solution; and
(g) promptly provide such information and take such decisions as are required for Polygon to be able to perform its obligations under the Agreement.
5.3 The Customer shall indemnify and hold Polygon harmless from any third-party claims based on, or costs, losses or damages incurred by Polygon due to the Customer’s use of the Solution in a manner not permitted by the Agreement.
6. FEES AND PAYMENT
6.1 The fee(s) are set forth in the applicable Order Form. If the Customer after the execution of an initial Order Form wishes to purchase additional products and/or services, the Parties shall enter into an additional/amended Order Form.
6.2 The fee(s) will be invoiced every twelve (12) months in advance, if not otherwise set forth in the Order Form.
6.3 All payment obligations are non-cancellable, and all amounts paid are non-refundable. The Customer is responsible for paying for the entire Term, whether or not the Solution is actively used.
6.4 Polygon has the right to make changes to the fee(s) if Polygon’s cost of providing the Solution is affected by changes in taxes, inflation, changes in legislation, government decisions or court rulings, increases in costs for materials or sub-contractors or other similar circumstances beyond Polygon’s control, by giving the Customer at least sixty (60) days’ prior notice.
6.5 Polygon has the right, annually from the effective date of the Order Form, to increase all fees based on changes in indexation, by giving Customer at least sixty (60) days prior notice. Indexation to be used is HICP for the EURO area published by Eurostat.
6.6 The invoice shall be sent to the address and recipient as set out in the Order Form or as otherwise instructed by the Customer.
6.7 All invoices sent by Polygon shall be paid in full no later than thirty (30) calendar days from the invoice date. In case of any overdue payment, Polygon is entitled to charge eight (8) per cent interest on the invoiced amount, or as applicable according to mandatory law, whichever is lower. Should the Customer’s payment be more than fourteen (14) days overdue, Polygon is entitled to terminate the Agreement.
6.8 The fee(s) does not include VAT or any other taxes and/or customs duties. Each Party shall be responsible to pay any VAT, taxes and/or customs duties applicable to the Party’s business.
7. INTELLECTUAL PROPERTY RIGHTS
Polygon, and/or its licensors, is and shall remain the exclusive owner of all Intellectual Property Rights in and to the Solution, including all software contained therein. Except for the limited rights expressly granted herein, all right, title and interest in and to the Solution are reserved by Polygon, and, except as expressly granted herein, nothing contained in the Agreement shall be construed as conferring any right, title, interest or license with respect to the Solution upon the Customer, by implication or otherwise.
8. INDEMNITY
8.1 Polygon undertakes to defend, indemnify and hold harmless the Customer from and against final damages awarded as a result of any third-party claim, suit or proceeding brought against the Customer claiming that the software in the Solution infringes the Intellectual Property Rights of such third party. Polygon’s indemnification undertaking applies only on the conditions that the Customer has notified Polygon in writing within reasonable time of the claims made or lawsuit brought, that Polygon has been given the rights to decide at its discretion how to defend the claim or lawsuit and conduct any settlement negotiations and that the Customer provides reasonable assistance to Polygon in connection thereto at the Customer’s own cost.
8.2 Polygon will not be liable to the Customer for any infringement claims that are caused by the Solution, including the software, being modified by the Customer or another party than Polygon, or the Solution being used in violation of Polygon’s instructions or the Agreement.
8.3 In the event of an intellectual property infringement claim or if Polygon reasonably deems such claim to be likely, Polygon may at its own discretion and expense (i) procure the right for the Customer to continue using the Solution, (ii) modify the Solution so it no longer is or may be infringing but remains functionally essentially equivalent, or (iii) replace any part of the Solution with a non-infringing alternative with essentially equivalent functionality. In the event none of (i) – (iii) is found by Polygon to be commercially reasonable, Polygon may terminate the Agreement with immediate effect. In such case, Polygon shall refund the Customer of its paid fee(s) on a pro rata basis.
8.4 The obligations and remedies set forth in this Section 8 are the sole and exclusive remedies of the Customer in case of a third-party intellectual property infringement claim and constitute Polygon’s entire liability in the event of such claims.
9. SUPPORT AND SERVICE LEVELS
Polygon aims to provide the Solution continuously and with stability, and will make its best efforts to remedy any defects and incidents in the Solution by providing support and maintenance in accordance with the Description. Polygon’s obligations to provide support and maintenance and to maintain any specified service levels are conditional on the due payment of all fees under the Agreement.
10. DATA PROTECTION
10.1 Each Party shall comply with applicable data protection legislation.
10.2 To provide the Solution, Polygon will need to process personal data related to users, e.g. name and login details, and related to the Customer’s contact person, e.g. name and contact details for billing or other contract administrative purposes. Polygon will process the personal data as data controller. Information about Polygon’s processing of such personal can be found at digital.polygongroup.com/privacy-policy.
10.3 In the event Polygon processes personal data on behalf of Customer when providing the Solution and/or delivering the Services, e.g. address to location of the hardware, such processing is regulated by the data processing agreement (“DPA”) attached to the Order Form and incorporated herein by reference.
11. AUDITS
11.1 Upon ten (10) days’ prior written notice, Polygon shall, itself or through an appointed third party, be entitled to audit the Customer to ensure that the Customer complies with the Agreement. The Customer shall provide reasonable assistance to Polygon during such audits and shall make available to Polygon any materials or information required for Polygon to properly perform such audit.
11.2 Audits may only be conducted once (1) per calendar year, unless Polygon has reason to believe that the Customer is in breach of the Agreement.
11.3 Each Party shall bear its own costs in connection with the audit except if the audit reveals that the Customer is in material breach of the Agreement, in which case the Customer shall bear all costs for the audit. For the avoidance of doubt, any violation of the use rights or usage restrictions for the Solution contained in the Agreement shall construe a material breach of the Agreement.
12. CONFIDENTIALITY
Each Party undertakes not to disclose, without the other Party’s consent, to any third party any such Confidential Information, which the Party has received from the other Party or otherwise in connection with performance of the Agreement. A Party may only use Confidential Information which has been received from the other Party for the purpose of supplying and receiving, respectively, the Solution according to the Agreement. The confidentiality obligations shall not apply in relation to information (i) which a Party can demonstrate has become known to the Party otherwise than through the performance of the Agreement, (ii) which is generally known, or (iii) at the time of disclosure was already in the possession of the receiving Party, as evidenced by the receiving Party. The confidentiality obligations shall also not apply when a Party is obliged, under law, governmental decision or applicable stock exchange rules, to disclose information. Each Party shall be obliged to ensure that its employees, subcontractors and other parties who may receive access to the other Party’s Confidential Information maintains confidentiality thereof by execution of written secrecy undertakings. This confidentiality obligation shall survive any termination of the Agreement.
13. FORCE MAJEURE
If the performance of the Agreement or any obligation hereunder is prevented or restricted by reasons beyond the reasonable control of a Party including, but not limited to, lightning, fire, natural disasters, changed governmental regulations, governmental actions, wars, strikes, labour conflicts, blockades, boycotts, lock-outs, intervention by public authorities, computer related attacks, hacking, or acts of terrorism, and any defect or delay in services provided by subcontractors due to such circumstances, the Party so affected shall be excused from such performance and liability to the extent of such prevention orrestriction.
14. LIMITATION OF LIABILITY
14.1 The Solution helps improve safety and security and mitigate the consequences of undesirable events. The Solution does not provide any guarantee or similar assurance against the occurrence of such events and do not entail any liability on Polygon for consequential damages. The Customer is aware that the Solution may be subject to operational disruptions and is responsible for always keeping its property and valuables adequately insured, and to claim compensation for any loss from the insurance company.
14.2 EACH PARTY’S TOTAL LIABILITY FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED TO AN AMOUNT CORRESPONDING TO THE TOTAL FEES PAID BY THE CUSTOMER UNDER THE AGREEMENT FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF THE DAMAGE EVENT GIVING RISE TO THE CLAIM.
14.3 NEITHER PARTY SHALL, IN NO EVENT, BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF PRODUCTION, LOSS OF BUSINESS OR INVESTMENT OR FOR THE OTHER PARTY’S LIABILITY TOWARDS ANY THIRD PARTY, OR FOR ANY LOSS OF DATA. FURTHER, POLYGON SHALL NEVER BE LIABLE FOR DAMAGES DUE TO (I) ANY FAILURE OF CUSTOMER TO COMPLY WITH THE AGREEMENT OR POLYGON’S INSTRUCTIONS, (II) USER OR HANDLING ERRORS OR (III) THIRD PARTY PRODUCTS OR COMPONENTS IN THE SOLUTION, SUCH AS SIM-CARDS AND NETWORK ACCESS.
14.4 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN RELATION TO (A) EACH PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 12, (B) EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET OUT IN THE AGREEMENT, OR (C) COST, LOSS OR DAMAGE CAUSED BY A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
14.5 A PARTY SHALL, IN ORDER TO RETAIN ITS RIGHTS TO CLAIM DAMAGES, PRESENT IN WRITING CLAIMS FOR DAMAGES TO THE OTHER PARTY AT THE LATEST SIX (6) MONTHS FROM THE OCCURRENCE OF THE DAMAGE EVENT.
15. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, POLYGON PROVIDES THE SOLUTION ON AN “AS IS” AND “AS AVAILABLE” BASIS. POLYGON MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOLUTION OR PROVIDED DOCUMENTATION, AND POLYGON DOES NOT WARRANT THAT THE SOLUTION WILL BE SECURE, UNINTERRUPTED, TIMELY, ERROR-FREE OR WORK WITH AND BE COMPATIBLE WITH THIRD PARTY PROGRAM PRODUCTS OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, POLYGON DISCLAIMS AND THE AGREEMENT EXCLUDES ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
16. TRIAL PERIOD
The Parties may agree on a free trial of the Solution. Polygon shall then make the Solution available to the Customer on a trial basis specified in the Order Form, free of charge, until the earlier of (i) the end of the free trial period agreed between the Parties, (ii) the start of any payable subscription of the Solution agreed between the Parties, or (iii) termination of the free trial by Polygon in its sole discretion. Polygon shall have no liability of any kind whatsoever during the free trial period. In all other respects the Agreement will apply.
17. ENTIRE AGREEMENT
The Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof. Any prior oral or written communications, representations or agreements relating to the subject matter shall be replaced by the Agreement.
18. PUBLICITY
For the purposes of publicly sharing that the Customer is using the Solution, Polygon is entitled to publish the Customer’s trademark and/or the Customer’s name on Polygon’s web pages or publicly sharing this in any other manner, including through publications on a third-party web page or through another media. The Customer may limit or entirely revoke this right by notifying Polygon in writing.
19. AMENDMENTS
Polygon may update these Terms from time to time, any such update to be published at https://digital.polygongroup.com/terms-and-conditions. Any such update of the Terms shall take effect in relation to the Customer from the next following Renewal Term (provided that the update has been published at https://digital.polygongroup.com/terms-and-conditions at the latest three (3) months before the expiry of the Initial Term or current Renewal Term, and if not, the update shall take effect from the second-next following Renewal Term). Otherwise, no modification, amendment, or supplement to the Agreement will be effective unless in writing and signed by authorized representatives of both Parties.
20. ASSIGNMENT
A Party may not assign or pledge its rights or obligations according to this Agreement without the other Party’s written approval. Notwithstanding the foregoing, Polygon may, without the Customer’s approval, (i) assign the Agreement to a Polygon Affiliate, or (ii) assign its rights to receive payment under the Agreement, any such assignment to be notified to the Customer in writing.
21. TERM AND TERMINATION
21.1 The Agreement shall commence on the date the Agreement is signed by both Parties and shall remain in effect for the Initial Term. Following the Initial Term, the Agreement is automatically renewed with successive Renewal Terms unless either Party terminates the Agreement by written notice at the latest three (3) months prior to the expiration of the Initial Term or the then-current Renewal Term.
21.2 Each Party may terminate the Agreement (including any Order Form) with immediate effect in whole or in part (i) if the other Party commits a material breach and fails to cure such breach within thirty (30) days following receipt of notice of the breach, or (ii) if the other Party is declared bankrupt or such an application is made, goes into liquidation, initiates composition proceedings, is subject to company restructuring or makes an assignment for the benefit of creditors.
21.3 Upon termination of the Agreement all rights to use the Solution granted to the Customer hereunder shall immediately cease and any warranty shall immediately expire. The Customer shall immediately cease to use the Solution and return or destroy any software, hardware, documentation or material provided to Customer as instructed by Polygon.
22. NOTICES
All notices required or permitted under the Agreement shall be given in writing to a Party’s address as specified in the Order Form, or to such other addresses as the Parties may substitute by written notice given in the manner prescribed in this Section as follows: (i) by registered or certified mail; (ii) over-night express courier; (iii) by hand delivery; or (iv) by email to such addresses. Such notices shall be deemed to have been duly received upon recipient’s receipt and, in case of email, upon recipient’s confirmation of receipt.
23. GOVERNING LAW AND DISPUTES
23.1 The Agreement shall be governed by and construed in accordance with the substantive laws of the country in which Polygon is incorporated, without regard to any principles governing conflicts of laws.
23.2 Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by the court in the city in which Polygon is established.
23.3 The language of the proceedings shall be English, unless otherwise is agreed between the Parties.
23.4 For the avoidance of doubt, nothing in the Agreement shall prevent a Party from applying to an authority or a court of competent jurisdiction (i) to collect undisputed fees payable by the other Party, or (ii) for provisional or interim measures or injunctive relief as may be necessary to safeguard the property or rights that are the subject matter of the dispute.