These general terms and conditionsconstitute an appendix to the Service Agreement entered between the parties andshall govern the delivery of the Services under the Service Agreement. The ServiceAgreement and this appendix is hereinafter together referredto as the “Agreement”.In the event of any conflicting information in the Agreement, the ServiceAgreement shall take precedence over these general terms and conditions.
Coly undertakes to provide theServices to Customer in accordance with the terms and conditions as set forthunder the Agreement.
Coly may engage subcontractors,such as software development consultants or cloud hosting services, forperformance of the Services under the Agreement. Coly has the sameresponsibility for work performed by subcontractors as for its own work.
Customer undertakes to only use the Service in accordance with the Agreement.
Coly will use commercially reasonable efforts to make theServices available on a 24/7/365 basis, except for planned downtime (of whichColy shall provide advance notice).
The Customer is the Data Controller and Colyis the Data Processor. The DataProcessor is responsible for processing the Customer’s personal data inaccordance with applicable data protection legislation. Coly will processCustomer Data and End-user datain accordance with the Data Controller’s instruction and the Privacy Notice. https://www.coly.io/privacy-policy
Coly is using the following Data Sub-Processors:
• Amazon WebServices, a company from the US, storing data in the EU, using European Standard Contractual Clauses.
For updates of Data Sub-Processors, see thePrivacy Notice. https://www.coly.io/privacy-policy
By entering into the Agreement, the Customer acknowledges and agrees with such data processing activities to perform its obligations and exercises its rights under the Agreement and to perform its legal obligations to establish, exercise or defend legal claims in respect of the Agreement.
Coly may not process any Customer Personal Data for other services than the Service (tests and other services included) ordered by theCustomer. Coly may not until a candidate has conducted and finalized a test requested by the Customer ask the candidate to sign up for additional services offered by Coly. If such services are offered to the Customer’s candidates, it must be declared in clear and plain language that signing up for such additional services is strictly voluntary.
The Customer, the Data Controller, instructsColy, the Data Processor, to process the Customer’s personal data according to the Agreement, the Privacy Notice and the following.
The Data Processor will:
• Treat personal data with confidentiality.
• Apply applicable security measures.
• Comply with the conditions when hiring a Sub Data Processor.
• Assist the Data Controller in cases listed in articles 32 to 36 in the GDPR.
• Meet the requirements to fulfill the Data Subject's rights.
• Erase or hand back all data about the Data Subjects when the Agreement is terminated.
• Assist the Data Controller in case of inspections by the authorities for Privacy Protection.
Notwithstanding anything to the contrary herein, Coly shall always be free to make use of any general know-how acquired, general principles learned, and general experience gained in connection with providing the Services. Coly shall always be free to make use of the Data processed and to anonymize the processed data.
Intellectual Property Rights Ownership
Coly and/or Coly’s licensors hold all rights, including intellectual property rights, to theServices and the software it includes. Unless otherwise set forth in thisAgreement, nothing in the Agreement or other documentation between the parties shall be considered to constitute a transfer of intellectual property rightsbetween the parties.
Customer may not copy, change or in any other way handle softwarebelonging to the Services,and neither transfer nor make available the rights to such software or materialto a third party, unless agreed in writing with Coly.
The parties’ responsibilities
Coly shall ensure that Customer's use of the Services does not infringe any intellectual property right. Coly undertakes to defend and indemnify Customer against any claims or actions regarding infringement of a third party'sintellectual property rights due to Customer's use of the Services.
Subject to section 10, Customer undertakes to defend and indemnify Coly against any claims or actions regarding infringement of a third party's intellectual property rights due to Customer's use of the Services in violation of the Agreement.
The obligation by each party only applies if the party that is subject to the claim or action has notified the other party in writing of the claim or action within a reasonable time and the other party has sole control over the defense against such claim or action andthe sole right to negotiate any agreement or settlement.
Unless otherwise stated in this Section 6 (Intellectual property rights), neither party is liable to the other party for infringements of a third party's intellectual property rights.
Use of trademarks and recognition
Coly has the right to use Customer’s company name, trademark or logotype in e.g.sales meetings, Coly’s website, advertisement etc. without having obtainedCustomer’s prior written approval. Customer may at any time request Coly in writing not to use Customer’s company name, trademark or logotype in an official setting, e.g. Coly’s website, advertisement etc.
Each party (the “Receiving Party”) hereby undertakes, during the term of the Agreement and for a period of three (3) years thereafter, not to disclose to any third-party information regarding this Agreement or any other information of a confidential nature which the Receiving Party have received from the other party (the “DisclosingParty”), whether written or oral and irrespective of form (“Confidential Information”).
The Receiving Party agree and acknowledge that the Confidential Information of the Disclosing Party may be used solely for the fulfilment of this Agreement and not for any other purpose. The Receiving Party further agrees to use the same degree of care (but not less than reasonable care) as it uses with respect to its own confidential and/or proprietary information, to avoid unauthorized disclosure or use of ConfidentialInformation of the Disclosing Party.
This confidentiality undertaking does not apply to information which:
a) is or comes into the public domain other than through breach of this Agreement;
b) the Receiving Party can show was in its possession prior to receipt there of from the Disclosing Party;
c) the Receiving Party can show was received by the Receiving Party from a third party without any obligation of confidentiality;
d) was independently developed or produced by theReceiving Party, without the use of theConfidential Information of the Receiving Party; or
e) informationwhich the ReceivingParty is obligedunder mandatory law, court or government order or binding stockexchange regulations to reveal to public authorities.
In cases as referred to in c)above, the Receiving Party does not have the right, however, to disclose to third parties that the same information has also been received from theDisclosing Party. Unless prohibited by law, the Receiving Party shall notify the Disclosing Party of any legally binding requests for disclosure confidential information held by the Receiving Party.
The Receiving Party shall ensure that its employees and consultants who must have access to any part of the Confidential Information of the Disclosing Party for the purpose of carrying out thisAgreement are informed of, and bound by, appropriate confidentiality undertakings commensurate with the provisions of this Section 7. The Receiving Party is also responsible for ensuring that engaged sub-contractors and sub-contractors’ employees that participate in the performance of theServices, or who are otherwise affected by the Services, sign confidentiality obligations on equivalent terms in favour of the Disclosing Party.
The Customer shall pay compensation for the Services provided by Coly as set out in theService Agreement. The fees are exclusive of VAT, other taxes and duties, and charges.
Coly has a right to change its fees once per year. Any upcoming price change shall be clearly communicated at least two months prior to the change will be in effect.
Coly’s fees are also revised yearly to reflect the sizeof the Customers’ operation. The size of the Customers operation is based on the number of rentable beds at the start date of every 12-month contract period.
Overdue charges and suspension of Services
In the event of a delay in payment of any uncontested payment, default interest and other compensation shall be paid in accordance with law.
If any charge owing by Customer under this Agreement is thirty (30) days or more overdue, Coly may withhold further provision of the Services until Customer has paid all amounts due and outstanding, if Coly has given Customer at least ten (10) days’ prior notice.
In the event of a fault in the Services for which Coly is responsible, Coly shall, if possible, remedy the fault with such promptness as the circumstances require.
If Customer has not been able to use the Services to a significant extent due to a fault in the Services which has been caused by Coly, Customer is entitled to receive, for the period fromCustomer’s notification of the fault and during the time the fault persists, a reasonable refund of the fee for the Services.
Coly is only liable for faults if the Customer has notified Coly within a reasonable time after discovering the fault, and has stated and, if necessary, demonstrated how the fault presents itself.
Except as stated in this Section 9, Customer is not entitled to any other compensation than correction of a fault, if possible.
Unless otherwise follows from the Agreement, Coly’s liability for faults or non-performance of service levels does not include faults or defects caused by the circumstances set out below:
a) circumstances for which the Customer is responsible under the Agreement;
b) circumstances beyond Coly’ area of responsibility for the Services; or
c) a virus or other security interference if Coly has implemented security measures in accordance with any agreed requirements or, in the absence of such requirements, in accordance with professional standards.
Should a liability to pay damages arise, a party's liability for damages is limited, per calendar year, to a total sum equal to the annual fee for the Services in question. A party is notin any event liable for loss of profit or other indirect damage or loss. Furthermore, a party is not liable for the other party's liability towards a third party, other than as stated in Section6 (Intellectual property rights).
The limitation of liability in this Section 10 does not apply in the event of personal injury and 7(Confidentiality), or in the event of intent or gross negligence.
If a party is prevented from fulfilling its obligations under the Agreement due to circumstances beyond the party's control, including but not limited to lightning strike, labor disputes, fire, natural disaster, changes in regulations, governmental actions, and/or faults or delays in services provided by a sub-contractor due to such circumstances as are stated above, such circumstances shall constitute grounds for release resulting in an extension of the deadline for performance and release from liability to pay damages and other remedies. If the performance of the Services in substantial respects is prevented for a period exceeding ten (10) days due to a circumstance stated herein, either party shall have the right to terminate theAgreement in writing, without incurring any liability for compensation.
Term of the Agreement
The term of the Agreement is specified in the Service Agreement.
Further details related to the termination of the Agreement is specified in the Service Agreement.
Either party may terminate this Agreement with immediate effect if:
a) the other party commits a material breach of its obligations under the Agreement and such breach is incapable of remedy, or if the breach is capable of remedy, and the party does not remedy such breach within ten (10) days of a written notice that is addressed to the party in question and contains a reference to this Section;
b) the other party enters into bankruptcy, ceases payments, applies for reconstruction, goes into liquidation, initiates composition negotiations, is subject to business reorganization or otherwise considered to be insolvent.
Coly may make changes to the Services or the method of providing it if it does not cause customers in general more than minor insignificance.
Other changes of this Agreement shall, to be valid, be agreed in writing and duly signed by authorized representatives of both parties.
The rights and obligations under thisAgreement may not be transferred without prior written approval of the other party.
This Agreement shall be governed by and construed in accordance with the substantive laws of Sweden, without application of its conflict of laws principles.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the StockholmChamber of Commerce.