This subscription agreement (the “Agreement”) is entered into by and between Cline Technology AB. (“Sensivo”) and the organization agreeing to the terms of this Agreement (“Customer”). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.
The above parties are hereinafter each referred to as a “Party” and jointly as the “Parties”.
Sensivo offers a cloud-based service for storing and managing clinical research data such as sensitive personal data, below referred to as the “Service”. The Customer shall procure the Service and the Parties are therefore entering into this Agreement.
“Agreement” means this Service Agreement and its appendices.
“Confidential Information” means any information regarding the Agreement, or any other information which the Parties have learned as a result of the Agreement, whether written or oral and irrespective of form.
“Service” means the cloud-based service offered by Sensivo for storing and managing clinical research data such as sensitive personal data.
Sensivo shall from the agreed start date and for the duration of the Agreement make the Services available to the Customer. The Services shall be delivered in accordance with the Service Specification, which includes technical requirements for the use of the Services.
Sensivo shall provide the Services in a workmanlike and professional manner. Sensivo will use commercial efforts to maintain, bugfix and upgrade the Services and to remedy defects in Services within a reasonable time from becoming aware of the defect.
Sensivo shall take, implement and maintain up-to-date industry standards of technical and organizational measures against any computer viruses and/or malicious and/or harmful software on the hardware and software used in the system.
Sensivo shall during the term of this Agreement hold and maintain appropriate insurance policies with reputable insurers in relation to its obligations under this Agreement.
Sensivo will make the Service available for access continuously for an average of 99% over the course of each calendar month period, excluding the following exceptions:
unavailability due to Customer’s negligent acts or internet connectivity;
unavailability due to scheduled downtime that has been notified to the Customer one (1) week in advance;
unavailability due to circumstances beyond the control of Sensivo.
Customer’s Subscription fees are set forth in the applicable Order Form and are based on the number of Databases and version of the Service purchased. Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to Sensivo.
Terms of payment are thirty (60) days from date of invoice.
For any overdue payments, Sensivo shall have the right to charge a monthly interest in accordance with the Swedish Interest Act. If payment for Services is more than 30 days past due, Sensivo may, without any liability whatsoever, terminate or suspend the affected services to the Customer upon 10 days prior written notice to the Customer. For the avoidance of doubt, Sensivo will not delete the Customer’s data during suspension. If Sensivo terminates the affected services, the Customer’s data will be returned or erased as described in the DPA.
The Agreement shall enter into force when it has been duly signed by both Parties and shall remain in force for an ‘initial agreement period’ of one (1) year. If not terminated in writing by either Party no later than six (6) months prior to the end of the initial period, the Agreement will be automatically extended for consecutive extension periods of one (1) year at the time.
Notwithstanding the foregoing, either Party may terminate this Agreement with immediate effect if the other Party
Is in material breach of its obligations under this Agreement and has failed to remedy such breach within thirty (30) days of written notice thereof; or
has taken general measures to cease payment of its debts, initiated negotiations for a general agreement with its creditors, been subject to an application for bankruptcy proceedings or enters into composition, reorganisation or similar arrangements with its creditors, is wound up, goes into liquidation or has a receiver appointed for all or any part of its assets.
The expiration or termination of this Agreement shall not affect or prejudice any provisions of the Agreement which are expressly or by implication provided to continue in effect after such expiration or termination.
Sensivo hereby grants the Customer a non-exclusive, non-transferable, revocable, license to use the Sensivo system to receive and use the Services for internal purposes during the term of this Agreement. The Customer may not amend, assign, sublicense or reverse engineer, decompile, disassemble or otherwise convert the Services (except to the extent as permitted by applicable mandatory law).
The Sensivo system, including but not limited to, any derivatives, developments or modifications (upgrades, updates, fixes etc.) thereof and the intellectual and industrial property rights therein, is and shall remain the exclusive property of Sensivo or its subcontractors.
Each Party is responsible for obtaining, at its own cost, all consents and licenses which it requires in order to enable it to perform its rights and obligations in accordance with this Agreement. The Customer warrants, and is solely liable for ensuring that it has any and all necessary rights, consents and licenses to access and process any data provided to Sensivo under this Agreement.
Sensivo shall at its own cost defend, indemnify and hold the Customer harmless from and against any and all damages, costs and expenses incurred as a result of any claim, suits, proceedings or litigation brought against the Customer based on the allegation that the access or use of the Sensivo’s systems in accordance with the terms of this Agreement constitutes an infringement of any intellectual and industrial property rights of such third party. Customer shall immediately inform Sensivo of such claim and allow Sensivo to manage and settle the claim, suit or proceeding or other right of action at its own discretion.
The Customer shall, at its own cost, defend, indemnify and hold Sensivo harmless from and against any and all damages, cost and expenses incurred as a result of any claims, suits or proceedings or litigation of any kind (actual or threatened) brought against Sensivo based on the allegation that the access to or processing of the Customer data in accordance with the terms of this Agreement constitutes an infringement of any intellectual and industrial property rights of such third party. Sensivo shall immediately inform Customer of such claim and allow Customer to manage and settle the claim, suit or proceeding or other right of action at its own discretion.
The intellectual property indemnities as set out in this section 9, shall not apply to the degree and to the extent:
(i) the claim arises out of breach of this Agreement by the Party entitled to be indemnified;
(ii) the claim arises directly out of compliance by the indemnifying Party with a specification or instructions provided by the Party entitled to be indemnified; or
(iii) the Party entitled to be indemnified has caused or materially and/or substantially contributed to the events which gave rise to the claim under the indemnity.
Each Party shall notify the other Party as soon as it becomes aware of a third-party claim or a potential claim that may be subject of an indemnity hereunder. The indemnifying Party shall without delay undertake all reasonable measures to rectify and remedy the infringing situation. In case the infringement claim in the indemnifying Party’s reasonable discretion materially prevents it from fulfilling its obligations under the Agreement, it shall be entitled to terminate the Agreement without any further liability.
This Section 8 constitutes each Party’s entire liability for infringement of any third party’s intellectual property rights.
The Parties hereby undertake, during the term of the Agreement and thereafter, not to disclose to any third party information regarding the Agreement, nor any other information which the Parties have learned as a result of the Agreement, whether written or oral and irrespective of form (“Confidential Information”). The Parties agree and acknowledge that the Confidential Information may be used solely for the fulfilment of the obligations under the Agreement and not for any other purpose. The receiving Party further agrees to use, and cause its directors, officers, employees, sub-contractors or other intermediaries to use, the same degree of care (but not less than reasonable care) to avoid disclosure or use of Confidential Information as it uses with respect to its own confidential and/or proprietary information.
This confidentiality undertaking does not apply to information which
(i) at the date of its disclosure is in the public domain or at any time thereafter comes into the public domain (other than by breach of this Agreement); or
(ii) the receiving Party can evidence was in its possession or was independently developed at the time of disclosure and was not obtained, directly or indirectly, by or as a result of breach of a confidentiality obligation.
Neither shall this confidentiality undertaking apply to the extent that any Party is required to make a disclosure of information by law or pursuant to any order of court or other competent authority or tribunal or by any applicable stock exchange regulations or the regulations of any other recognised market place. In the event that any Party would be required to make any such disclosure, each Party undertakes to give the other Party immediate notice prior to any such disclosure. Each Party also agrees and undertakes to use its best efforts to ensure that any information disclosed under this section, to the extent possible, shall be treated confidentially by anyone receiving such information.
In order to fulfil this Agreement, Sensivo will process personal data on behalf of the Customer. A separate data processing agreement has been entered into, where the conditions for the processing are described.
Sensivo may use subcontractors for the performance of its obligations under this Agreement.
Sensivo’s aggregate and total liability in respect of the Agreement shall per calendar year be limited to direct damages equal to fifty (50) percent of the amount paid by the Customer during the calendar year preceding the year when the loss arose. If this Agreement has not been in force during an entire calendar year, the above mentioned amount shall be calculated over a twelve-month period on the basis of the amount already invoiced to the Customer during the calendar year in question.
Sensivo shall not be liable to the Customer in connection with the Agreement for any indirect or consequential damages, including but not limited to loss of revenue or goodwill.
The limitations of liability set forth herein shall not apply to any liability arising from death or injury to persons, any liability arising from intent or gross negligence, the indemnification provided in section 10 or any breach of the obligations as regards Confidential Information.
Neither Party shall be liable for non-performance, defective or late performance of its obligations hereunder it is due to causes and/or conditions outside of the performing Party’s reasonable control.
Causes and/or conditions outside of a Party's reasonable control shall include, but not be limited to, acts of terrorism, strikes and other labor disputes, fire, explosions, floods, earthquakes, typhoons, epidemics, wars, government acts, riots, sabotage or severe weather conditions which the Party claiming excuse could not have reasonably foreseen the effects of or made alternative arrangements for.
No Party may assign, pledge or otherwise encumber this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party.
The failure of either Party to insist, in one or more instances, upon the performance of any of the terms or conditions of the Agreement, or to exercise any right hereunder, shall not be construed as a waiver of the future performance of such terms or conditions or the future exercise of such right,.
Sensivo may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the Sensivo website or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Other notices must be sent via email, first class, airmail, or overnight courier to the addresses of the parties provided herein or via an Order Form and are deemed given when received. Notices to Sensivo must be sent to Cline Technology ab, email@example.com with a copy to Cline Technology AB, Norrbackagatan 27B, Stockholm, Sweden.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings, oral statements, and understanding of any nature whatsoever.
No modification, amendment or other change may be made to the Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.
This Agreement shall be governed by the substantive law of Sweden.
The courts of Sweden shall have exclusive jurisdiction over any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof. The District Court of Stockholm shall be court of first instance.