Terms & Conditions

CUSTOMER TERMS AND CONDITIONS

These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using Kind’s (defined below) communication and knowledge sharing tools and platform (the “Services”). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services.

These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding contract (the “Contract”) between Customer and Engaging Solutions AB, Reg. No. 559150-7354, with address Djäknegatan 5, 211 35 Malmö, Sweden (“Kind”);.

Kind and Customer are jointly referred to as the “Parties” and individually as a “Party”.

“Customer” is the organization that you represent in agreeing to the Contract. If your workspace is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the workspace. Individuals authorized by Customer to access the Services (an “Authorized User”) may submit content or information to the Services, such as messages or files (“Customer Data”).
Authorized Users invited to a workspace set up by a Customer must accept the end user license agreement (the “Eula”) before access and use of the Services.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is lawful.

1. OWNERSHIP AND LICENSE GRANT, LICENSE RESTRICTIONS

1.1 Kind and third parties that have ownership interest in and to the Services and the Deliverables shall retain all right, title and interest to the Services and the Deliverables and the documentation relating thereto, including all copyrights thereto, and any copies of the Deliverables or its documentation, whether authorized or unauthorized. Customer acknowledges that the Services and the Deliverables contain confidential information that is proprietary to Kind. 

1.2 Subject to the terms and conditions of the Contract, Kind hereby grants to Customer a personal, non-transferable and non-exclusive license to use the Deliverables as a software-as-a-service solution through the Services. 

1.3 Customer accepts that all information gained about the Services and the Deliverables is the valuable property of Kind and as such must be treated as confidential as described under Section 6 below. Customer warrants that, other than providing access to Deliverables to the Authorized Users for which the Deliverables are licensed via the Kind App, it will not allow access to the Services or the Deliverables to any third party. 

1.4 Upon request by Kind, Customer may permit Kind or a third party designated by Kind to have access to Customer’s records and computer systems and the right to audit Customer’s systems to ensure Customer is using its software in accordance with its license terms.

2. THE SERVICES

2.1 Kind will provide access to the Services to Customer through Internet connection, at the connection point immediately outside Kind’s firewall (the “Connection Point”). 

2.2 Kind undertakes to ensure, on a commercially reasonable effort basis, that the Services shall run properly and be accessible at the Connection Point as detailed in these Customer Terms. However, Kind cannot guarantee that the Services will run without interruptions or that the Services or Deliverables are error free. Customer confirms that the use of the Deliverables and the Services is at Customer’s own risk. 

2.3 Kind shall have no liability for the transfer of data relating to the Services beyond the Connection Point or for any data transfer to and from Authorized Users via the Kind App. Any and all requirements on availability for the Services (as detailed below) shall be measured at the Connection Point.

2.4 Unless otherwise agreed with Kind, Customer may not use a specified user-ID for log-in by more than one Authorized User or for login at a site not intended for such log-in. Customer is liable for any and all unauthorized use of user-ID:s for the Services until Customer has instructed Kind in writing to block a specific user-ID:s access to the Services and Kind has confirmed receipt of such instructions. 

2.5 Within the scope of the Services, Customer may be given access to an administration tool, through which Customer can register new Authorized Users, manage passwords and administer the services and information detailed in the Services. Customer is solely responsible for the handling of such registrations and administration. 

2.6 For the avoidance of doubt, Kind may provide the Services to Customer through its own servers or through third party service providers managing Kind's server installations. 

3. OPERATION OF THE SERVICES

3.1 Service Availability Unless otherwise agreed separately between the parties, Kind warrants that the Services will be available 99 % of the time, based on availability during each calendar month excluding (i) downtime during Kind’s scheduled service windows according to Section 3.3 and (ii) downtime for emergency maintenance for Force Majeure Situations and other threats or problems as referred to in Section 3.4 below (the “Service Availability”):  Downtime is defined as the time during which the Services, or a substantial part or essential feature thereof, is non-operational or if use of the Services causes significant inconvenience to Customer or Customer Users in general. It is expressly noted that the inability for one or more Authorized Users to access Content via the Kind App shall not be regarded as downtime, unless the inability is due to the Services, or a substantial part or essential feature thereof, being non-operational.

3.2 Monitoring and non-compliance of Service Availability
If Customer claims the Service Availability does not meet the availability percentage set out above, Customer shall provide Kind with a written report of the non-compliance during such calendar month. 
In order for Kind to be entitled to exclude any actual downtime detected, from the definition of downtime herein and the calculation of credits set forth below, Kind must provide sufficient evidence and information that such downtime should not be included in the calculation in accordance with the principles set forth herein. 
If the actual Service Availability during any calendar month is less than the above stated percentage, then Customer is entitled to receive a credit based on the actual monthly fees to be paid by Customer to Kind for the relevant month, according to the following (such credit to be set off against Kind’s next invoice to the Customer):

With respect to the credits described in this Section 3.2, Customer’s eligibility to receive any such credits is subject to its account being held current and having no undisputed outstanding balance due nor any other material breach on Customer’s part as of such date.
Any compensation to Customer according to the table above due to non-availability of the Services requires Customer to report the non-availability to Kind and claim compensation not less than thirty (30) days after the expiry of the calendar month to which the non-availability relates. If Customer does not report the non-availability to Kind and claim compensation within the said time frame, Customer’s right to compensation will be lost. 

3.3 Scheduled Maintenance Windows  The Customer recognizes that each night between 00 and 02 (CET), the Services may be unavailable in order for Kind to perform back-up, support, maintenance and upgrades of the Services. Kind shall strive to schedule all service and maintenance activities during the said maintenance window.
3.4 Emergency Maintenance Window & Notification
In situations involving causes beyond Kind's reasonable control (“Force Majeure Situations”) or if required in other situations such as security threat, virus alert, service attack, power outages or other outages related to third parties, Kind may invoke an Emergency Maintenance Window and will notify Customer (to the extent possible based upon the threat or problem causing such extreme situation) by telephone, e-mail or by provide notice to Customer through the Services (e.g., a bot notification) promptly upon Kind's receiving knowledge of such event. Customer shall in such event be given a description of the threat or problem, the response actions undertaken or proposed to be taken by Kind to react to such threat or problem, the estimated duration of the Emergency Maintenance Window (if known), as well as any recommended actions to be taken by Customer to minimize the impact of the threat or problem and/or identify and repair the problems caused by threat or problem.  
In no event shall Kind suffer any penalty or liability for any circumstance comprising a Force Majeure Situation or other threat or problem covered by this Section 3.4, or for the existence, result, frequency or duration of Emergency Maintenance Windows resulting from such Force Majeure Situation or other threat or problem.  Furthermore, to the extent that any situation referred to in this Section 3.4, is the result of or arise from any condition, circumstance or event caused by or under the control of Customer or any third party providing products or services to Customer, Customer shall use its best efforts to (and/or to cause its provider(s) to) eliminate or mitigate to the greatest extent possible such conditions, circumstances or events.

3.5 Service e-mail, etc. Any problems relating to the Services shall be notified by Customer to Kind using the following service e-mail address: support@kind.app

4. SECURITY AND BACK-UP

4.1  Kind will maintain a high level of security for the Services, in accordance with industry practice, and will exercise commercially reasonable efforts to prevent the entry of viruses/malicious code within the Services. To this end, Kind will use industry-standard security software or tools on the servers used to make available the Services.

4.2 Kind will conduct regular back-up of the information Customer stores on Kind's servers, in accordance with Kind's standard routines for server back-up.

4.1  Kind will maintain a high level of security for the Services, in accordance with industry practice, and will exercise commercially reasonable efforts to prevent the entry of viruses/malicious code within the Services. To this end, Kind will use industry-standard security software or tools on the servers used to make available the Services.

4.2 Kind will conduct regular back-up of the information Customer stores on Kind's servers, in accordance with Kind's standard routines for server back-up.

5. GENERAL PROVISIONS RELATING TO THE SERVICES

5.1 Customer is solely and exclusively responsible for all information that Customer and each Authorized User, use or process when using the Services including any and all information which Customer, and Authorized Users, store on Kind's servers. Further, Customer is solely and exclusively responsible for any and all results Customer obtains when using the Services and the Deliverables. Customer is not entitled to store information on Kind's servers which does not relate to the Services.

5.2 Kind is not liable for ensuring that Customer’s own Internet-access, or Internet information transfer in general, is operating properly. Kind is not liable for any disruptions or misrepresentations of the information which occur during the transfer via the Internet. Customer is aware of and accepts that accessibility to the Internet can not be guaranteed in general and that Kind is not liable for such disruptions.

5.3 Personal information relating to Customer Authorized Users may be processed by Kind in order to provide the Services. Customer shall be responsible for all such processing of personal information that is described above, including the processing of Customer Authorized Users personal details and shall ensure that all such processing is made in accordance with the General Data Protection Regulation (GDPR) and thereto related national regulations, including regulations regarding patient data. Kind shall have no liability towards Customer or any third party for the processing of personal information or patient data within the scope of the Services.

6. CONFIDENTIALITY

6.1 Customer agrees and acknowledges that the Deliverables and any information and materials including methodologies and know-how relating in and to the Deliverables are confidential information and contain trade secrets of Kind and third parties having ownership interest in and to the Deliverables, and shall be held in the strictest confidence by Customer and shall not be copied, reproduced, or disclosed, to any third party for any purpose whatsoever other than for Customer’s internal business purposes and for use as intended within the scope of the Services. Customer agrees to use at least the same security measures to protect the Deliverables and information and materials relating thereto as it uses to protect its own confidential and trade secret information, but no less than reasonable measures. Confidential information does not include information which Customer can demonstrate: (i) was at the time of disclosure to Customer, generally part of the public domain or thereafter becomes generally part of the public domain through no act or omission of Customer; or (ii) was lawfully in Customer’s possession as shown in written records prior to such disclosure and without obligation of confidentiality; or (iii) was lawfully received by Customer after disclosure from a third party without obligation of confidentiality and without violation by such third party of an obligation of confidentiality to another; or (iv) was required to be disclosed by law or court order from a court of competent jurisdiction provided that Kind is given reasonable time to take legal action to seek protection from such disclosure. Customer shall hold harmless, defend and indemnify Kind from and against any and all losses, costs, damages and expenses arising out of or in connection with Customer's failure to comply with requirements of this Section 6. Customer’s confidentiality obligations hereunder shall survive termination, for any reason, of the Contract.
 
6.2 Customer shall not alter or delete any copyright or trademark notice, trade name, or other markings which identify Kind's proprietary rights and interests in the Services, the Deliverables and documentation.
 
6.3 Customer agrees and acknowledges that any breach of the provisions regarding the ownership or confidentiality contained in the Contract shall cause Kind irreparable harm and Kind may obtain injunctive relief as well as seek all other remedies available to Kind in law and in equity.

7. LIMITED WARRANTY

7.1 Kind warrants that the Deliverables will substantially operate according to specifications published by Kind during the term of the Contract and will be available to the Customer as per Section 3 above. 
7.2   Kind does not warrant that the Services or the Deliverables will meet Customer’s requirements or that the operation of the Services will be uninterrupted and error free. Customer is solely responsible for the selection of the Services and the Deliverables to achieve its intended results and for the results actually obtained. 

7.3  The above warranty does not apply to conditions resulting from improper use, external causes, including modifications or alterations not performed by Kind or Kind's appointed contractor, or operation outside the specified environmental parameters. 

7.4   The above warranty is Kind's only warranty with regard to the Services, the Deliverables, its documentation and the Contract and, save as provided in the Contract, no other warranty or condition, express or implied, will apply. Kind specifically excludes without limitation all other warranties, representations or undertakings relating to performance including any warranties that might otherwise be implied, such as those of satisfactory quality, merchantable quality, merchantability, fitness for a particular or any purpose, ability to achieve any particular result, title or non-infringement.

8. INTELLECTUAL PROPERTY INFRINGEMENT

8.1 Kind shall defend, at its expense, any claim or suit brought against Customer alleging that any Deliverables furnished under the Contract infringes a patent, copyright or other intellectual property right in Sweden or the country of Customer, and shall pay all costs and damages finally awarded, provided that Kind is given prompt written notice from Customer of such claim and is given information, reasonable assistance and sole authority to defend and settle the claim. 

8.2 In the event that any of the Deliverables is held in a suit or proceeding to infringe any intellectual property rights of a third party and the use of such Deliverable is enjoined, or Kind reasonably believes that it is likely to be found to infringe, or likely to be enjoined, then Kind, at its sole cost and expense, and at its option, may obtain for Customer the right to continue using the Deliverable, replace or modify the Deliverable so that it becomes non-infringing or, if such remedies are not reasonably available, grant Customer a credit for already paid-in fees for the remaining term of the Contract for such Deliverable and terminate the Contract forthwith in relation to such Deliverable or the agreement as a whole. 

8.3 Kind shall not have any liability if the alleged infringement is based upon (i) the use of the Deliverables in combination with other products or devices not furnished by Kind; (ii) the use of the Deliverables in an application 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 Customer or any of its affiliates. Kind disclaims all other liability for patent, copyright or other intellectual property right infringement, including any special, incidental, consequential, exemplary or other indirect damages. 

8.4 The foregoing states the entire liability of Kind with respect to infringement of any intellectual property rights by the Deliverables, or any portion thereof.

9. LIMITATION OF LIABILITY

9.1 Unless expressly stated otherwise in this Contract, in no event will Kind be liable for any indirect loss or damages which are related to the Deliverables, the Services or the Contract, such as loss of data, costs for transfer of data, or loss of use, lost profits, loss of anticipated savings, nor for any other damages that are an indirect or secondary consequence of any act or omission of Kind, whether such damages were reasonably foreseeable or actually foreseen. 

9.2 Kind is further not liable for the data confidentiality in connection with the transfer of information via the Internet when Customer uses the Services. 

9.3 Kind's liability is limited to what is stated above if not Kind has caused the damage by gross negligence or through willful conduct. Kind's aggregated liability under the Contract shall in no event exceed twenty-five (25) percent of Customer’s annual fee for the Deliverables under the Contract.

10. FORCE MAJEURE

10.1  Either party shall be excused from fulfillment of any obligation under the Contract only to the extent that and for so long as such performance is prevented or delayed by an industrial dispute or any other cause beyond its reasonable control, such as, but not limited to, riots; floods; war; warlike hostilities; fires; embargo; shortage of labor, power, fuel, means of transportation or common lack of other necessities. In such event or cause, such party shall promptly notify the other party who may extend the time of performance required to remedy such breach, to an amount equal to the time loss caused by the event.

11. PAYMENT TERMS

11.1 For Authorized Users, Kind reserves the right to charge the Authorized User or the entity which has entered into an Contract with Kind for the Authorized User’s subscription, the price for which will be agreed upon between Kind and the Authorized User or the entity which has entered into an Contract with Kind in the applicable Contract or another separate agreement.
A paid subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and Kind (each, an “Order Form”). Each Authorized User must agree to the Eula to activate their subscription. Subscriptions commence when Kind make them available to Customer and continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. Each subscription is for a single Authorized User for a specified term and is personal to that Authorized User. During an active subscription term, unless the Order Form says otherwise, 

11.2  The fees for the Services will either be paid upfront as part of the Services “check-out” interface or invoiced in advance by Kind, at the intervals agreed in the Contract, and shall be paid by Customer within thirty (30) days from the date of invoice. 

11.2  In case of late payment of invoice, Kind shall be entitled to interest on late payment at an annual interest rate of twelve (12) percent. Furthermore, Kind may notify Customer to pay in writing. If Customer still has not paid the relevant invoice within ten (10) days from the date of such notification, Kind is entitled to temporarily block Customer Users from access to the Services and to cease the provision of the Services until full payment has been made. Upon such temporary block, Kind may further give Customer a final time period of not less than five (5) days to pay the outstanding invoice and if payment has not been received within such time frame, Kind may terminate the Contract in writing with immediate effect and claim damages for the losses caused by such termination. 
  
11.3  Prior to the end of the initial term and each extension period set out in the Contract, Kind shall be entitled to adjust the fees for the use of the Services, through written notification thereof to Customer with not less than one (1) month’s notice. If Customer does not accept the adjusted prices, Customer may terminate the Contract in writing not less than one (1) month prior to the commencement of the new extension period. Failure by Customer to terminate the Contract will be deemed as acceptance of the new prices. 
11.4  All prices are exclusive of, and Customer is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with the provision of goods and services under the Contract.

12. TERM AND TERMINATION

12.1  A paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

12.2  Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.

12.3  Kind or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. Kind may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.

12.4  Each party shall further have the right to terminate the Contract with immediate effect if (i) the other party is in default of any of its obligations under the Contract and has failed to make good such default within thirty (30) calendar days after having received a written notice from the terminating requiring it to do so; or (ii) the other party suspends its payments, becomes bankrupt or insolvent or enters into liquidation or otherwise can be regarded as insolvent. 12.5   Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

12.3  Upon termination (other than termination due to Customer’s default), Customer will have access to the Deliverables and the Services for the remaining term for which Customer already has made payment for. It is Customer’s responsibility to transfer any and all information from the Services before the end of the term of the Contract. If Customer does not transfer the information within the above stated time, Kind will store the remaining information for two (2) months in case Customer wishes to re-activate the Services. Thereafter Kind is entitled to erase the remaining information.  

12.4  Neither party shall have any right whatsoever, and each party hereby expressly waives any such right, to any compensation of any kind by reason of termination as such of the Contract. This is, however, without prejudice to any right either party may have in case of breach of contract by the other party.

13. EXPORT CONTROL REGULATIONS

13.1  The Deliverables and its documentation is subject to all applicable export, re-export, and import regulations in any applicable country, and Customer hereby agrees that neither the Deliverables nor its documentation is 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 Customer exports the Deliverables or its documentation (as otherwise permitted under the Contract) to, or accesses the Services from, another country than the country in which Customer is domiciled, then Customer assumes the responsibility for compliance with all applicable export and re-export regulations, as the case may be.

14. MISCELLANEOUS

14.1  The Contract shall not be assignable in whole or in part by either party, without the prior written approval of the other party. This notwithstanding, Kind shall be entitled to assign the Contract 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 Deliverables is assigned or transferred. 

14.2   Any notice or other communication under the Contract shall be made by e-mail (subject to confirmation of receipt), although Kind may instead choose to provide notice to Customer through the Services (e.g., a bot notification) 

14.3   The Contract, including these Customer Terms, contains the entire understanding between the parties on its subject matter, and annuls, replaces, and rejects any other agreements or understandings, whether written or oral, which may exist or have existed between the parties on the subject matter hereof, including any contradictory terms on Customer’s documentation. 

14.4  If the Customer purchase subscription(s), create a workspace (i.e., a digital space where a group of users may access the Services), invite users to that workspace, or use or allow use of that workspace after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. 

14.5  The Contract shall be governed by and construed in accordance with, and any arbitration or court action hereunder shall apply, the laws of Sweden, other than its conflict/choice of law provisions. 
 
14.6  Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or invalidity thereof, shall be settled by Swedish courts, with the District Court of Malmo as the court of first instance.  
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