This Service Agreement is for the use of the Engaging Solutions AB application known as “Kind” by the Customer identified on the Enrollment Form and by the staff who work in the Customer’s Business Unit and with the Customer’s contacts.
The parties to this Agreement are:
(ii) The Customer identified on the Enrollment Form.
This Service Agreement is made up of the following:
(i) The Enrollment Form;
(iv) Kind’s Data Processing Agreement (https://www.kind.app/data-processing-agreement)
(v) Acceptable Use Policy (https://www.kind.app/acceptable-use-policy)
(vi) Service Level Agreement (https://www.kind.app/service-level-agreement)
4. REGISTRATION AND PROCESSING OF PERSONAL DATA
In this Agreement the following terms have the meanings set out below:
Acceptable Use Policy: Kind’s use policy that can be found at URL https://www.kind.app/acceptable-use-policy;
Customer: is the customer identified on the Enrollment Form;
Customer’s Business Unit: The business unit or place identified on the Enrollment Form where the Customer will use the application;
Customer Data: The data inputted into the Kind Application by the Customer or by Users;
Data Protection Laws: All laws and regulations that apply to or govern the processing of personal data, including, but not limited to the EU General Data Protection Regulation ((EU) 2016/679) and any national data protection laws and regulations implementing the EU Electronic Communications Privacy Directive (2002/58/EC), as well as any amendments to or replacements of such laws and regulations (controller, processor, data subject, data concerning health, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meanings given to them in the Data Protection Legislation);
Enrollment Form: is the online form completed by Customer that sets out the details of the Agreement such as fees, start date and place where the Kind Application will be used;
Kind Application: Kind’s application that includes software and content modules as described by Kind including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Agreement and it includes the software used on the electronic devices and software hosted by Kind;
Security Policy: Kind’s security policy that can be found at URL https://www.kind.app/security-whitepaper;
Service Level Agreement: The document that sets out Kind’s commitment with regard to service level and availability of the hosted software and Customer Data via the Software Services as found at URLhttps://www.kind.app/service-level-agreement;
Software Services: The services that Kind provides to allow Users to access and use the Kind Application, as described in clause 3;
Users: are the Customer’s staff who use the Kind Application in the Customer’s Business Unit and the Customer’s contacts who interact with the Customer’s staff.
1. LICENCE FOR USE OF THE KIND APPLICATION
1.1. To use the Kind Application, the Users must access or download user software onto their electronic devices. Please contact Kind if the Users need assistance accessing or downloading the software. The terms accepted on access or download will apply to the User’s use of the user software. Those terms may be updated by Kind from time to time.
1.3. Kind hereby grants to the Customer a non-exclusive, non-transferable license to allow Users to access the hosted software and Customer Data via the Software Services.
1.5. The Kind Application may only be used in or for the Customer’s Business Unit.
1.6. The Kind Application is owned by Kind and is subject to intellectual property rights. The Customer shallnot attempt to copy, reverse engineer, duplicate, modify, create derivative works from or distribute all or any portion of the Kind Application except if allowed by these Use Terms or as may be allowed by any applicable law which is incapable of exclusion by agreement.
2. USERS AND USE OF THE KIND APPLICATION
2.1. Users must be the staff, meaning the employees or independent contractors, of the Customer or contacts of those staff who are in contact with the staff of the Customer’s Business Unit.
2.2. Users will be authenticated when first accessing the hosted software.
2.3. The Customer shall ensure that each User follows reasonable security measures to ensure the KindApplication is not misused and the Customer Data is secure.
2.4. Kind may prohibit access to the hosted software to Users its suspects are not authorised or any personwho it suspects is mis-using the Kind Application and/or not complying with the Acceptable Use Policy.
2.5. Each User is required to accept and comply with the Acceptable Use Policy. The Acceptable Use Policy will be presented to the User before they activate the Kind Application and their acceptance of the Acceptable Use Policy is required in order for them to access the hosted software and make use of theSoftware Services.
3. SOFTWARE SERVICES
4.1. The Customer and Users will input Customer Data into the Kind Application. The Customer is solely responsible for all Customer Data input into the Kind Application and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data, including compliance with the Data Protection Laws in relation to all personal data and, if applicable, data concerning health.
4.2. The Customer owns all rights, title and interest in and to all of the Customer Data.
4.3. In order to provide the Software Services, Kind will process personal data contained in the Customer Data. The parties acknowledge that for the purposes of the Data Protection Laws, the Customer is the controller and Kind is the processor of any personal data contained in the Customer Data.
4.5. Kind will follow its back-up procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Kind shall be for Kind to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Kind in accordance with the Security Policy. Kind shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Kind to perform services related to Customer Data maintenance and back-up for which Kind shall remain fully liable).
5. KIND WARRANTIES
5.1. Kind undertakes that the Kind Application will perform substantially in accordance with its description issued by Kind at https://www.kind.app. This warranty shall not apply if the Customer uses the Kind Application contrary to instructions issued by Kind or if it is modified or altered by any third party.
5.2. If the Kind Application does not perform as promised, Kind will use reasonable commercial endeavours to correct any such non-conformance promptly. The Customer accepts that the Kind Application is not error free.
5.3. The Software Services will be provided using reasonable solutions and skill and in accordance with industry standards. The Customer accepts that the Software Services will not be uninterrupted.
5.4. Kind will comply with the Security Policy while providing the Software Services.
5.5. Kind gives no other warranties and all other warranties, representations or undertakings, including anyimplied warranties that are capable of being excluded, are specifically excluded.
6. INTELLECTUAL PROPERTY INFRINGEMENT
6.1. Kind shall defend, at its expense, any claim or suit brought against the Customer alleging that the Kind Application or any part of the Software Services infringes a patent, copyright or other intellectual property right in Sweden or the country of the Customer, and shall pay all costs and damages finally awarded, provided that:
6.1.1. Kind is given prompt written notice from the Customer of such claim and is given information, reasonable assistance and sole authority to defend and settle the claim;
6.1.2. The Customer ceases use of an infringing element of the Kind Application if requested by Kind to do so where Kind has provided the Customer with replacement code or services;
6.1.3. Kind shall not have any liability if the alleged infringement is based upon
(i) the use of the Kind Application in combination with other products or devices not furnished by Kind;
(ii) the use of the Kind Application in a manner for which it was not designed or intended, where such infringement would not have occurred but for such use; or
(iii) a claim based on intellectual property rights owned by the Customer or any of its affiliates.
6.2. Kind may, at its option, obtain for the Customer the right to continue to use any infringing element of the Kind Application or may replace or modify the element so that it becomes non-infringing or, if such remedies are not reasonably available, grant the Customer a credit for already paid Fees for the remaining term of the Agreement for such part of the Kind Application that cannot be used.
6.3. This clause states the entire liability of Kind with respect to infringement of any intellectual property rights by the Kind Application, the Software Services, or any portion of it.
7. FEES AND PAYMENT
7.1. The Customer shall pay the monthly amounts set out in Enrollment Form (“Fees”) for use of the Kind Application and the Software Services.
7.2. The Fees refers to the actual number of licenses and will be paid monthly in arrears by the Customer.
7.3. If Kind has not received the payment within ten days of the due date, Kind:
7.3.1. will not be obliged to provide the Software Services to the Customer;
7.3.2. may charge interest of 12% p.a. on the unpaid Fees.
7.4. Kind may adjust the Fees by providing at least one month’s prior notice of its intention to adjust the Fees.
8.1. Each party may be given access to information of the other party that is confidential in nature. Confidential Information includes information relating to the Kind Application, the Customer’s Business Unit, contact information and, in some cases, health information. Confidential Information does not include information that:
8.1.1. is or becomes publicly known other than through any act or omission of the receiving party; or
8.1.2. was in the other party’s lawful possession before the disclosure; or
8.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
8.1.4. is independently developed by the receiving party, which independent development can beshown by written evidence.
8.2. Subject to clause 8.4, each party shall hold the other’s Confidential Information in confidence and,unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than performance of its obligations under this Agreement.
8.3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
8.4. A party may disclose Confidential Information if it is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction; provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 8.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
8.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9. LIMITATION OF LIABILITY
9.1. This clause 9 sets out the entire financial liability of Kind (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
9.1.1. arising under or in connection with this Agreement;9.1.2. in respect of any use made by the Customer of the Software Services, the Kind Application orany part of them; and
9.1.3. in respect of any representation, misrepresentation (whether innocent or negligent),statement or tortious act or omission (including negligence) arising under or in connectionwith this Agreement.
9.2. Except as expressly and specifically stated in this Agreement:9.2.1. The Customer assumes sole responsibility for results obtained from the use of the Kind Application and the Software Services and for conclusions drawn from such use.
9.2.2. Kind shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Kind by the Customer in connection with the Software Services or any actions taken by Kind at the Customer’s direction;
9.2.3. all warranties, representations, conditions and all other terms of any kind whatsoeverimplied by statute or common law are, to the fullest extent permitted by applicable law,excluded from this Agreement;
9.2.4. Kind shall not be liable for any liability caused by third party service providers;
9.2.5. Kind shall not be liable for any loss of profits, loss of business, depletion of goodwill and/orsimilar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement, whether or not such damages were reasonably foreseeable or actually foreseen.
9.3. Kind’s aggregated liability under this Agreement shall in no event exceed twenty-five (25) percent of Customer’s annual Fee.
9.4. Nothing in this Agreement excludes the liability of the parties for (i) for death or personal injury caused by the party’s negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) for other liability that cannot be excluded by applicable law.
9.5. The Software Services availability commitments set out in the Service Level Agreement state the Customer’s full and exclusive right and remedy in respect of the performance and or availability of the Software Services.
10. TERM AND TERMINATION
10.1. This Agreement shall commence on the Agreement Start Date and shall continue until terminated. Either party may terminate this Agreement on 30 days’ notice.
10.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
10.2.1. the other party fails to perform its obligations under this Agreement and remains in default30 days after being notified in writing of the failure;
10.2.2. the other party suspends its payments (including a failure by the Customer to pay the Feeson time), becomes bankrupt or insolvent or enters into liquidation or otherwise can beregarded as insolvent.
10.3. Upon termination of this Agreement, all licenses granted under this Agreement and the supply of theSoftware Services shall immediately terminate.
10.4. It is the Customer’s responsibility to transfer the Customer Data from the Kind Application prior totermination of this Agreement. However, the Customer may make a written request to Kind to deliver to the Customer the most recent back-up of the Customer Data and Kind shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such request.
10.5. Sixty days after termination of the Agreement, Kind will destroy or otherwise dispose of any of the Customer Data in its possession.
10.6. No compensation is payable for termination by either party but this does not affect the rights or remedies of a party in the case of a breach of obligations under this Agreement.
11. FORCE MAJEURE
Either party shall be excused from performing any obligation under this Agreement to the extent that and for so long as such performance is prevented or delayed by any other cause beyond its reasonable control such as, but not limited to, riots; an industrial dispute; floods; war; warlike hostilities; fires; embargo; shortage of labor, power, fuel, means of transportation or common lack of other necessities. In such event, the affected party shall promptly notify the other party who may extend the time for performance of such obligation by a reasonable period.
Kind may need to alter the terms of this Agreement or the terms of any policy that this Agreement refers to. If Kind wishes to make such an alteration, it will give at least 30 days’ notice of the alteration to the Customer. In the event Kind makes alterations to the detriment of the Customer which are not acceptable to the Customer, the Customer may terminate the Agreement by giving written notice to Kind within thirty (30) days from the date of the notification of such alteration. If the Customer does not give written notice of termination of the Agreement within thirty days, the Customer shall be deemed to have accepted the alterations.
13. GENERAL TERMS
13.1. The Kind Application is subject to export, re-export, and import regulations in any applicable country, and the Customer hereby agrees the Kind Application is not intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities. In the event the Customer uses the Kind Application in, or accesses it from, a country other than the country in which the Customer is domiciled, the Customer assumes the responsibility for compliance with all applicable export and re-export regulations, as the case may be.
13.2. Kind shall be entitled to assign this Agreement in whole or in part to a company owned by or affiliated with Kind or a company to which Kind’s business relating to the Kind Application is assigned or transferred. Otherwise, neither party may assign this Agreement without the consent of the other party.
13.3. Any notice under this Agreement shall be in writing and delivered to the address or e-mail address given by the other party for that purpose.
13.4. This Agreement and the documents and policies referred to in it are the entire understanding between the parties on the use of the Kind Application. Any communications outside of those documents and policies are excluded.
13.5. This Agreement shall be governed by and construed in accordance with the laws of Sweden and the parties agree that any dispute or claim relating to it shall be settled by the courts of Sweden with the District Court of Malmö as the court of first instance.
Engaging Solutions AB
211 19 Malmö