BuildSafe General Terms and Conditions
These general terms and conditions (the “Terms”) are applicable when BuildSafe Sweden AB (“BuildSafe”) provides services to its customers. The Terms constitutes an integral part of the agreement entered into between BuildSafe and the Customer (as defined below).
Each of BuildSafe and the Customer may hereafter be referred to as a “Party” and jointly the “Parties”.
1.1 “User” means the Customer’s personnel, consultants, the Customer’s customers or subcontractors and their personnel, who performs work for or together with the Customer within the Customer’s projects and who the Customer allows to use the Service.
1.2 “Analysis Services” means additional services that BuildSafe offers to the Customer. Such services are described on BuildSafe’s website www.buildsafe.co.
1.3 “Fees” means subscription fees and other fees for the Service, Support, Maintenance and Analysis Services that the Customer shall pay according to the Agreement.
1.4 “Agreement” means the agreement entered into between BuildSafe and the Customer, including all appendices thereto.
1.5 “Order” means an order of the Service in accordance with the Agreement. Each Order shall be confirmed in writing by
BuildSafe in order to constitute a binding agreement.
1.6 “Default” means a default in the Service which results in the Service not corresponding to the Service Description.
1.7 “Intellectual Property Rights” means all intellectual property rights such as but not limited to trademarks, copyright, inventions, patents, source code and functions of the Service, regardless of the geographic territory.
1.8 “Content” means all data and information which is uploaded, published, transferred and processed through the Service by the Customer or Users.
1.9 “Problem” means a functional error which does not constitute a Default, but a problem attributable to the Customer’s use of the Service.
1.10 “Support” means support services provided by BuildSafe in accordance with Section 5.
1.11 “Service” means the subscription service described in the Service Description and that the Customer has Ordered.
1.12 ”Service Description” means the functional and technical description of the Services provided by BuildSafe. The Service Description may be amended and updated in connection to development of the Service and upgrade of the systems used by BuildSafe.
1.13 “Pilot” means part of the Service or other service under development or evaluation and which is referred to as “demo”, “test”, “beta” or “evaluation” (or similar term).
1.14 “Maintenance” means the maintenance services provided by BuildSafe according to Section 5.
2.1 License BuildSafe grants the Customer a non-exclusive, limited, revocable license to connect to and use the Service during the Agreement term and in accordance with the Agreement. The Customer may not sublicense or transfer the right to use the Service to a third party.
2.2 Technical user requirements Access to and use of the Service requires the Customer to be connected to the Internet and have access to the technical equipment described in the Service Description applicable from time to time. The Customer is responsible for the network connection required to use the Service.
3 Title and Intellectual Property Rights
3.1 BuildSafe and/or its licensors own all rights and title, including Intellectual Property Rights, attributable to the Service.
3.2 Any and all Intellectual Property Rights that arise as a result of the provision of the Service and/or the Customer’s use of the Service will vest in BuildSafe, including the right to amend, modify, redistribute and transfer such Intellectual Property Rights, and be the exclusive property of the Customer.
3.3 The Customer shall not amend, translate, reproduce, copy or transfer the Service, unless to the extent expressly permitted under mandatory law.
3.4 Content All Content remains the property of the Customer. However, BuildSafe owns a right to use the Content in order to e.g. improve, develop and amend the Service, and to produce statistics and other information for the purpose of providing Analysis Services. BuildSafe reserves the right to use Content on an aggregated level for the purpose of providing commercial services to third parties, and for statistical and marketing purposes.
4.1 If the Customer is offered to use the Service during a Pilot period, the Service is provided “as is” without any express or implied warranties. BuildSafe does not warrant that the Pilot meets the Customer’s expectations, is free from defaults or can be used without any disruptions, or that all defaults and errors in the Pilot will be corrected. BuildSafe is not responsible for damages of any kind, neither direct nor indirect damages, attributable to the Customer’s use of the Pilot.
5 Support and Maintenance
5.1 If BuildSafe Service Level Agreement has been enclosed to the Agreement, BuildSafe shall provide Support and Maintenance in accordance with such appendix.
5.2 Unless otherwise stated in BuildSafe Service Level Agreement or if such document has not been enclosed to the Agreement, BuildSafe will provide support Monday to Friday (except bank holidays) 07.00 to 17.00 (CET) via (i) support chat at BuildSafe web platform; (ii) e-mail (email@example.com); (iii) telephone (+46 8 480 011 00). In case of urgent matters outside the hours stated in this Section 5.2, the Customer may contact BuildSafe via telephone (+46 8 480 011 00).
6 Customer undertakings
6.1 Registering Users The Customer is responsible for registering Users that will use the Service on behalf of the Customer. The Customer is liable for its Users only using the Service in accordance with the Agreement and for the intended purpose.
6.2 No unauthorized use The Customer undertakes not to use the Service in a way that the equipment used to provide and use the Service or other data communication is prevented or disrupted. The Customer shall not force or circumvent any electronic obstacles or protection that has been implemented to protect the Service. The Customer shall not in any way modify, decompile, reverse engineer, disassemble or reproduce the Service. The Customer undertakes not to try to gain access to information that is included in the Service or in any third party system connected to the Service to the extent such information is not publicly available or intended for the public.
6.3 Security requirements and guidelines The Customer shall adhere to BuildSafe’s reasonable security requirements. The Customer is responsible for correct and safe storage of all access codes and that such codes are used in accordance with BuildSafe’s requirements. The Customer further undertakes to adhere to BuildSafe’s instructions and guidelines regarding the use of the Service.
6.4 Transfer of information The Customer is responsible for ensuring that all Content and other information transferred by use of the Service is compliant with applicable laws and regulations, including but not limited to legislation regarding data security, intellectual property rights, personal data and marketing. The Customer undertakes to not use the Service for any illegal purpose or for any other purpose that may result in damage or inconvenience for BuildSafe or any third party. Such use may for example be the distribution of deceptive information or information that is provocative or offensive from a moral, religious or political view.
6.5 Permission Prior to transferring any information in the Service, the Customer shall ensure that any and all necessary permits or licenses to use the Service have been obtained.
6.6 Virus The Customer is responsible for not spreading or transferring any virus software or other malicious or destructive software when using the Service.
6.7 Infringements The Customer undertakes to adhere to BuildSafe’s reasonable instructions regarding the protection of BuildSafe’s Intellectual Property Rights attributable to the Service. The Customer undertakes to through the Service not distribute Content or data which infringes on Intellectual Property Rights held by a third party.
7.1 BuildSafe is entitled to suspend the Customer’s use of the Service if:
(i) the Customer does not pay the Fees in due time despite reminders; or
(ii) the Customer or a User breaches any of the undertakings set forth in Section 6.
Despite being suspended from the Service, the Customer shall pay all Fees until the Agreement has been terminated in accordance with the termination provisions set forth in the Agreement.
8 Analysis Services
8.1 In addition to the Service, BuildSafe provides several Analysis Services. Such Analysis Services are not included in the Service and are called off separately. A description of the Analysis Services is available at BuildSafe’s website www.buildsafe.co. If the Customer has called off Analysis Services, such Analysis Services shall be subject to these Terms.
9 Prices, taxes and payment terms
9.1 Price information is set forth in the Agreement. All prices are excluding VAT.
9.2 Unless otherwise set forth in the Agreement, invoicing will occur monthly in advance. Payment shall be made within thirty (30) days from the date of the invoice.
9.3 In the event of late payment BuildSafe shall be entitled to charge interest in accordance with the Swedish Interest Act (Sw. räntelagen (1975:635)). BuildSafe is also entitled to charge late payment fee in accordance with applicable law.
10 Personal Data
10.1 To the extent BuildSafe processes personal data on behalf of the Customer, such processing is subject to BuildSafe Processing Agreement.
11.1 BuildSafe is entitled to solicit sub-contractors for the performance of its obligations under the Agreement. BuildSafe remains liable for the performance of its sub-contractors as for BuildSafe’s own work.
12 Limited warranties
12.1 The Service BuildSafe warrants that the Service will principally work in accordance with the Service Description, provided that the Service is used as set forth in the Service Description. Defaults that affect the Customer’s use of the Service negatively will be rectified by BuildSafe in accordance with the Support and Maintenance undertaking set forth in Section 5. BuildSafe has no other or additional responsibility for the Service.
12.2 Support, Maintenance and Analysis Services BuildSafe warrants that Support and Maintenance in accordance with Section 5 and Analysis Services will be performed in a professional and workmanlike manner.
12.3 Exhaustive warranty BuildSafe does not provide any representations or warranties except as expressly provided by the Agreement, including but not limited to warranty regarding fitness for a general or specific purpose.
13 Limitation of liability
13.1 General limitation of liability BuildSafe is only liable for direct damages resulting from the Agreement, with the limitations set forth in Section 13.3. Thus, BuildSafe is not liable for any indirect damages, such as good will, loss of profit or revenue.
13.2 BuildSafe shall not be liable for:
(i) disruptions caused by the Customer’s use of equipment, software or accessories other than as prescribed by BuildSafe,
(ii) disruptions resulting from the Customer’s use of the Service other than as set forth in the Service Description or caused by the Customer’s amendments or adjustments of the Service, or caused by the Customer’s, Users or third party’s negligence, or as a result of other circumstances outside BuildSafe’s control,
(iii) disruptions caused by incorrect or incomplete information provided by the Customer to BuildSafe, or
(iv) inaccessibility or disruption of the Service caused by the Customer’s network connection.
13.3 Limitation of damages Unless otherwise expressly stated in the Agreement, BuildSafe’s total liability under the Agreement under any 12 month period shall under no circumstances exceed the fees paid by the Customer to BuildSafe in accordance with the Agreement during the 12 month period preceding the event or events on which the claim is based.
13.4 Exclusive remedies The sanctions set forth above shall be the Customer’s sole and exclusive remedies in connection with BuildSafe’s breach of the Agreement. The limitation of liability under the Agreement shall not apply in relation to damages caused by gross negligence or wilful misconduct. The Customer shall present any claims in writing promptly upon the circumstances giving rise to the claim coming to the Customer’s knowledge, however, no later than three (3) months after the occurrence of the damage.
14.1 Definition Confidential Information The Parties understands and accepts that all information obtained by the other Party and its employees is confidential and shall in accordance with the Agreement be considered “Confidential Information”. Confidential Information includes inter alia information that a Party obtains through a request for proposal, idea proposal, compilations, presentations in text or other form, documentation, business plans, technical conditions and innovations, know-how, legal and financial conditions etc., and the information that the Parties obtains through the Agreement, including the content of the Agreement.
14.2 Exceptions Confidential Information does not include information that (a) is publicly known or publicly available without breach of the Agreement; (b) the Party can prove was known to the Party prior to the disclosure by the other Party; or (c) a Party has lawfully obtained from a third party who was entitled to disclose such information.
14.3 Confidentiality Each Party undertakes not to, during the term of the Agreement and thereafter, disclose, publish or in any other unauthorized way distribute Confidential Information and to implement necessary security measures for the purpose of preventing unauthorized disclosure of Confidential Information. Each Party further undertakes not to use Confidential Information for any other purpose than to fulfil its rights and obligations under the Agreement or other purpose approved by the other Party in writing. Each Party understands that unauthorized disclosure or use of Confidential Information may be an offense under the Swedish Trade Secrets Act (Sw. lagen om skydd av företagshemligheter (1990:409)) and may cause the other Party considerable damages for which the Party is responsible and liable. Each Party also undertakes to ensure that all of its employees, prior to accessing Confidential Information, accept the provisions of these Terms or has signed a confidentiality undertaking equivalent to the provisions set forth in this Section 14.
14.4 The confidentiality undertaking above shall, however, not prevent BuildSafe from using Content on an aggregated level for the purpose of providing the Analysis Services or for other statistic or marketing purposes.
15.1 BuildSafe shall indemnify the Customer against any damages that the Customer is obliged to pay according to a final judgment or arbitral ruling setting forth that the Service or the use thereof infringes a third party’s intellectual property rights, provided that:
i) the Customer immediately informs BuildSafe of the claim or allegation of infringement;
ii) BuildSafe gains full control of the dispute and defence thereof; and
iii) the Customer cooperates with BuildSafe regarding the defence and handling of the dispute and assists BuildSafe in accordance with BuildSafe’s reasonable instructions (the Customer is not entitled to any compensation for costs that may occur for such cooperation and assistance, such as working hours).
15.2 BuildSafe shall not be liable for claims based on:
i) amendments of the Services performed by anyone else than BuildSafe;
ii) adaption of the Service in accordance with the Customer’s instructions; or
iii) use of the Service in breach of the Agreement or BuildSafe’s instructions.
15.3 If the use of the Service is prevented or if BuildSafe reasonably believes that the Service may be subject to an infringement claim BuildSafe shall, at its own discretion and at its own expense:
(i) ensure the Customer’s right to use the Service;
(ii) amend the Service in a way that the Service ceases to infringe third party rights; or
(iii) if neither of the above listed options are possible, terminate the Agreement with immediate effect and refund any prepaid fees.
16 Term and termination
16.1 Term and termination is set forth in the Agreement. Unless otherwise stated in the Agreement, the Agreement shall enter into force upon signing and remain valid until terminated in writing by either Party with three (3) months’ notice.
16.2 Each Party may terminate this Agreement in writing with immediate effect if;
(i) the other Party commits a material breach of the Agreement, such as late payment, and, provided that the breach may be cured, does not remedy such breach within thirty (30) calendar days of receiving a written notice thereof;
(ii) the other Party is insolvent, cancels its payments, is declared bankrupt, initiates composition proceedings or liquidation proceedings, is delayed with payments or cannot reasonably be expected to pay its debts in the order they expire; or
(iii) such termination rights are otherwise stated in the Agreement.
16.3 Effect of termination Upon termination of the Agreement BuildSafe shall, upon the Customer’s request, return or erase Content, except such Content that BuildSafe uses in accordance with Section 3.4. Request of return or erasure according to this Section 16.3 shall be made within thirty (30) days after the Agreement has terminated.
17.1 Force Majeure If either Party is prevented from performing its obligations due to circumstances outside its control that the Party could not reasonably have been expected to foresee at the time of entering into the Agreement and which consequences the Party could not reasonably have avoided or prevented, or is a consequence of the Party’s sub-contractor being prevented from delivering its products or services due to circumstances set forth in this Section, such Party shall be released from liability and obligation to perform. The above shall apply regardless of whether the reason for the delay occurs before or after the agreed delivery date of the Service. If the performance of the Agreement is prevented for more than six (6) months as a consequence of circumstances stated in this Section, each Party shall be entitled to terminate the Agreement in writing. In such case, BuildSafe shall be entitled to compensation for work performed and costs incurred up to the point in time when it was notified that this Section 17.1 is invoked. In connection herewith, BuildSafe shall report and deliver the result of the work performed no later than the date when the payment is made. If a Party would like to invoke this section, such Party shall inform the other Party hereof in writing without delay.
17.2 Transfer Neither Party may transfer its rights or obligations under this Agreement without the other Party’s written consent.
17.3 Amendments Amendments to this Agreement shall be in writing and signed by both Parties in order to be valid.
17.4 Notices Notices given under the Agreement shall be in writing and delivered by courier or e-mail to the other Party’s address set forth in the Agreement. If sent by courier the notice shall be deemed received upon the day of delivery and if sent by e-mail the notice shall be deemed received upon confirmation of receipt.
17.5 Applicable law and dispute resolution This Agreement shall be governed by Swedish law without regard to its choice of law 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 Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm and the language to be used in the arbitral proceedings shall be Swedish, unless otherwise agreed by the Parties.