The Services. FeedbackFrog shall deliver to Customer the Services specified in the Service Agreement, and any additional services ordered by Customer.
Performance of Services. FeedbackFrog shall perform all parts of the Services in a professional manner in accordance with the provisions of the Agreement and with the skill and care which Customer has reason to expect from a well-reputed company in the industry.
Cooperation. The Parties will cooperate continuously with each other in good faith on all issues arising in connection with performance of the Services. FeedbackFrog will comply with the reasonable instructions and guidelines issued by Customer from time to time concerning performance of the Services. Customer shall provide FeedbackFrog with the information and resources necessary to perform the Services.
Access. As of the start of Customer’s Subscription period, Customer is granted access to the Platform and associated materials and features provided to Customer through the Platform.
Availability. The Platform is provided “as is” and “as available”.
Interruptions caused by third party. FeedbackFrog is not liable for any lack of access due to external attacks or otherwise harm or risk caused by viruses or similar, disturbances in internet or cloud provider infrastructure, or other failures caused by unavailability of a third-party service.
Interruptions caused by Customer. FeedbackFrog is not liable for unavailability caused by Customer’s use of the Services in conflict with the Agreement or FeedbackFrog’s instructions.
Limitations. Customer is not entitled to compensation for limitation or lack of access due to circumstances outside FeedbackFrog’ control, including but not limited to circumstances described in Sections 2.3–2.4.
Changes to the Platform. FeedbackFrog continuously develops the Platform and shall be entitled to update, amend and modify the Platform, provided that the performance or functionality does not decrease in any material way as a consequence of such changes.
Updates. All updates shall be provided to Customer upon release free of charge. Updates mean changes and improvements to the current version of the Platform, such as minor bug fixes and security patches. Customer is aware that such updates may require adjustments in Customer’s equipment or software solutions, for which costs and adaptions Customer is responsible for.
Upgrades. Upgrades may be subject to additional fees. Upgrades mean any change of the Platform which adds or removes functionality in relation to the functionality of the previous version of the Platform.
Access and use of Platform. Subject to and conditional upon Customer’s payment of the fees and compliance and performance in accordance with all terms and conditions of the Agreement, FeedbackFrog hereby gives Customer a non-exclusive and non-transferable right to access and use the Platform solely in and for the Customer’s internal business operations by and through its Authorized Users during the term of the Agreement.
Authorized Users. Only Customer and those Customer employees, consultants, contractors, or agents who are authorized by Customer to use the Services in support of Customer’s operations, and who have been given user logins and passwords by Customer (“AuthorizedUsers”) may access and use the Platform and other materials provided to Customer in conjunction with the Services.
Rules of conduct. Customer shall not, and shall not permit any other person to, access or use the Platform except as expressly permitted by the Agreement and, in the case of third-party materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer agrees:
to only access or use the Services through Authorized Users using of his or her own then valid login credentials;
to comply, and ensure that Authorized Users comply, with all applicable laws, regulations and public orders in connection with use of the Services;
to keep all login credentials, security methods and other information provided by FeedbackFrog to access the Services confidential and secure, and to promptly notify FeedbackFrog in the event an unauthorised person has accessed the Platform or any information in it;
to inform FeedbackFrog if an Authorized User no longer works for Customer;
not to access the Services other than through interfaces provided by FeedbackFrog and as otherwise expressly authorized under the User Terms, which are hereby incorporated by reference and considered an integral part of the Agreement;
not to input, upload, transmit or otherwise provide to or through the Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
not to bypass or breach any security device or protection used by the Platform; or
not to damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services.
INTELLECTUAL PROPERTY RIGHTS & CONFIDENTIALITY
Intellectual Property Rights
Ownership. Ownership of and all Intellectual Property Rights in the Services, Platform, its Confidential Information (as defined below), and any derivatives, enhancements or improvements thereof, vest exclusively in FeedbackFrog and, or as the case may be, its suppliers or licensors. “Intellectual Property Rights” shall mean any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, design right, database right, topography right, trademark, service mark, the right to apply to register any of the aforementioned rights, trade secret, right in unpatented know-how and any other intellectual or industrial property right, in any part of the world.
Third-party indemnity. FeedbackFrog shall indemnify and hold the Customer harmless from all claims from third parties, any direct costs, losses or damages suffered or incurred by the Customer as a result from Customer’ use of the Platform or any Intellectual Property Rights that FeedbackFrog is responsible for in accordance with this Agreement.
Results. Customer shall be the sole and exclusive owner of all deliverables generated as part of the Studies (“Results”), including any intellectual property rights in the Results.
Customer’s trademarks. Customer hereby gives FeedbackFrog a non-exclusive, non-transferable and revocable right to use and display Customer’s trademarks and images on the Platform and FeedbackFrog’s website for the purpose of performing Recruitment Services and marketing Customer’s Studies to participants during the Term of the Agreement. FeedbackFrog shall use any trademarks or images in accordance with Customer’s instructions.
Granted rights. Except for the limited rights expressly granted under the Agreement, nothing in the Agreement or otherwise between the Parties shall be construed as transferring or assigning the title or ownership of any Intellectual Property Rights in the Services or the Platform from FeedbackFrog to Customer.
Prohibited use. Customer shall not, and shall procure that its Authorized Users do not, unless expressly authorized to do so;
copy, modify or create derivative works or improvements of the Platform;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any portion of the Platform to any third party;
reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part;
alter, remove, obscure, frame or mirror FeedbackFrog’ or its suppliers’ branding, proprietary notices or any content forming part of the Platform or the Materials;
access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of FeedbackFrog or any third party, or that violates any applicable legislation; or
access or use the Services for purposes of competitive analysis, development, provision or use of a competing software service or product or for any other purpose that is to FeedbackFrog’ detriment or commercial disadvantage.
Use of Confidential Information. In connection with the Agreement a Party (“Disclosing Party”) may disclose or make available Confidential Information to the other Party (“Receiving Party”). The Receiving Party shall, during the term of the Agreement and for a period of five (5) years after the termination hereof, not reveal Confidential Information to third parties, which the Receiving Party obtains from the Disclosing Party or which arises during performance of the Services.
Confidential Information. “Confidential Information” refers in the Agreement to any item of information – technical, commercial or of any other nature disclosed by Disclosing Party – regardless of whether or not such information has been documented, with the exception of information that:
was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement;
was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ non-compliance with the Agreement;
was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Restrictions. Receiving Party agrees to ensure that its employees, consultants and board members do not disclose Confidential Information to third parties.
Survival. The obligations in this Section 11 shall survive the termination of the Agreement.
DATA & PERSONAL DATA
Statistics and Data
Customer data. Customer owns the data provided to FeedbackFrog by Customer in connection with the Services. FeedbackFrog may freely utilize data generated in the system log files to optimize and improve FeedbackFrog’ Services.
Anonymized data. FeedbackFrog shall have the right to anonymize any and all data used in the Platform or the Services. The anonymization procedure shall be sufficient to ensure that no data can be converted back to personal data. FeedbackFrog shall own the right and title to all such anonymized data without limitation in time and use for any purpose.
Personal Data Protection
Data protection. Each Party shall ensure that the processing of personal data within the scope of the Agreement is in conformity with applicable law.
Sole controllers. Under the Agreement, FeedbackFrog will transfer personal data regarding participants to Customer. Each Party shall be individually responsible, as a sole data controller, for its own processing of participants’ personal data pursuant to and/or in connection with the Servicesand for ensuring that its processing is lawful under the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and other applicable data protection laws. This means that each Party independently determines the means for its respective processing of personal data and is responsible for informing participants of its data processing. The Parties have entered into a data sharing agreement, Appendix 2, to determine each Party’s respective responsibilities regarding processing of participants’ personal data.
Changes in processing. Neither Party shall be construed as a data processor in relation to the other Party, unless the conditions for processing of personal data change so that one Party processes personal data on behalf of the other Party, in which case Parties shall enter into a data processing agreement.
NO WARRANTIES & LIMITATION OF LIABILITY
Platform. Customer acknowledges that the Platform is provided ”as is” with no warranties provided by FeedbackFrog or its suppliers, either express, implied or statutory, including warranties of quality, performance, non-infringement, merchantability, quality, or fitness for a particular purpose, nor are there any warranties created by course of dealing, course of performance or trade usage. FeedbackFrog does not warrant that the Platform will be uninterrupted or error-free, that defects will be corrected. The entire risk as to the quality of, or arising out of use or performance of, the Services, if any, remains with Customer. The foregoing exclusions and disclaimers are an essential part of the Agreement and formed the basis for determining the price charged for the Services. Should any part of this disclaimer not be allowed in certain jurisdictions, those parts may not apply to Customer.
Participants. FeedbackFrog will ensure that sourced participants declare that they meet the participant requirements set by Customer. Customer acknowledges, that FeedbackFrog is not capable of validating the information provided by participants when applying to a Study, and that FeedbackFrog thereby cannot guarantee that information provided by participants is true and correct. FeedbackFrog does not guarantee that participants’ answers, behaviour, and engagement are of a satisfactory quality to Customer and is in line with Customer’s expectations.
Liability. The Parties’ liability is limited as follows:
Neither Party shall be liable for consequential or indirect losses, such as lost profits, diminished production, costs of retaining another provider, costs of equipment and similar costs or losses, except in case of breach of Intellectual Property Rights (Section 10) and Confidentiality (Section 11).
In no event shall FeedbackFrog’s total liability for any damages, direct or indirect, arising from or in connection with the Services or the Agreement exceed the fees paid by Customer for the Services during the previous six (6) month period.
FeedbackFrog is not liable for Customer’s loss of data.
FeedbackFrog’s liability for third party products in the Services is limited to, using the best of its ability, to defend Customer and its rights against the third-party supplier.
The limitation of liability in clause 14.3 above shall not apply if the Party has acted wilfully and/or with gross negligence or (i) as a result of violation of intellectual property rights and (ii) breach of confidentiality obligations.
Except with respect to Customer’s payment obligations for Services rendered prior to the commencement of a force majeure event, notwithstanding any other provision of the Agreement, neither Party shall be liable to the other Party for any delay or failure in performance of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, inability to secure materials or labour or any other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the force majeure ceases.
TERM & TERMINATION
Term and termination
Term. The Agreement shall remain effective for the period specified in the Service Agreement.
Termination for convenience. Customer may terminate the Agreement to end the use of the Services in accordance with the notice period set out in the Service Agreement.
Termination for cause. Each Party has the right to terminate the Agreement with immediate effect:
if the other Party has committed a material breach and does not remedy the same no later than thirty (30) days from notification requiring the defaulting Party to remedy the same; or
the other Party suspends its payments, decides on, whether voluntary or involuntary, liquidation, applies to reorganize the company or bankruptcy (or if another part applies for the Party’s bankruptcy) or otherwise reasonably can be assumed to be insolvent.
Notice. Notice of termination must be sent to the other Party in writing to the email address provided for in the Service Agreement.
Effects of termination
Cease use of Services. Upon termination of the Agreement, Customer shall immediately cease all use of the Services. All unpaid fees for Services performed by FeedbackFrog until the date of termination shall be payable, irrespective of the cause of termination. FeedbackFrog shall invoice Customer for all unpaid fees within ten (10) Business Days from termination.
Return of data. Upon termination of the Agreement, FeedbackFrog shall delete all Customer data, unless otherwise required by law, or unless Customer, no later than ten (10) Business Days before the Agreement expires, notifies FeedbackFrog that Customer wishes assistance transferring Customer data. FeedbackFrog is entitled to charge Customer in accordance with the applicable price list for Project Management Services for data converting and transfer. The billing shall be according to time and material for the time spent. FeedbackFrog shall keep Customer data until the transfer of such data is completed.
MISCELLANEOUS & GOVERNING LAW
Notices. Any notice and other communication to be given by a Party under the Agreement shall be in the Swedish or English language and deemed to be valid and effective if personally served on the other Party or sent by registered prepaid airmail or e-mail to the addresses given in the recitals or as later amended.
A notice shall be deemed to have been given:
in the case of personal service: at the time of service;
in the case of prepaid registered mail: at the latest three (3) days after the date of mailing; or
in the case of e-mail: on the date the e-mail is sent, provided receipt is duly confirmed by the other Party.
Changes of address are to be notified as set out in this provision.
Waiver. No consent or waiver, express or implied, by either Party of any breach or default of the other Party in performing its obligations under the Agreement shall be deemed or construed to be a consent or waiver of any other breach or default by the other Party of the same or any other obligation hereunder. No waiver of any rights under the Agreement shall be effective unless in writing and signed by the waiving Party.
Changes. Only those amendments and additions to the Agreement that are made in writing and signed by the Parties are valid.
Entire agreement. The contents of the Agreement and its appendices shall supersede all previous written or oral commitments and undertakings.
Assignment of the Agreement. Neither Party may wholly or partly assign or pledge its rights and/or obligations under the Agreement to any third party without the prior written approval of the other Party.
Severability. If any provision of the Agreement or part thereof is held invalid, this shall not affect the remaining provisions of the Agreement, unless the obligations of a Party hereto without the invalid part of the Agreement are or will become unreasonably onerous.
Governing Law and Disputes
The Agreement shall be governed by the substantive law of Sweden. 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 arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm. The arbitration proceedings shall be conducted in English.