MAGIC ANKOR TECHNOLOGY – TERMS OF SERVICE
These general terms of service, hereinafter “Terms of Service” apply to all Users of the Service provided by Magic Ankor Technology AB, Östra Boulevarden 22, 291 29 Kristianstad, a company registered in Sweden under organization number 559431-0400 (“Magic Ankor Technology”, hereinafter “Ankor”).
1. AGREEMENT
These Terms of Service and the attached Data Processing Agreement referred to in section 20 below, are collectively referred to herein as the “Agreement”. By accepting these Terms of Service digitally when signing up for the Service (as defined below), the Customer consents to be bound by the Agreement as of the time the Terms of Service are accepted.
The subscriber to the Service is hereinafter referred to as the “Customer”. “User” refers to any person or legal entity using the Service, including the Customer as well as its team members and any third parties accessing the Service through the Customer’s subscription to the Service. The Users and Ankor (each a “Party”) are collectively referred to herein as the “Parties”.
The Customer is responsible for ensuring that the individual who accept these Terms of Service on behalf of the Customer is legally authorized to do so.
2. THE SERVICE
Ankor provides a web-based software solution for reconciliation of payments between Customer’s sales channels and related payment services as further described on Ankor’s website (the “Service”). The definition of the “Service” includes all data and other materials generated by use of the Service, as well as any updates and modified versions of the software application and other materials put on the market by Ankor.
Ankor may invite the Customer to use features that are still under development and not yet publicly available (“Early Adopters Service”). If Ankor would offer an Early Adopters Service to the Customer and the Customer would accept to use the Early Adopters Service, the Customer acknowledges that the Early Adopters Service is an experimental version. Use of the Early Adopters Service is at the Customer’s own risk. The Early Adopter Service may not operate or interconnect correctly or may not operate at the same performance level as the final version. An Early Adopters Service may also be modified or withdrawn by Ankor at any time.
3. RIGHT TO USE UNDER THE SUBSCRIPTION
Ankor owns all intellectual property related to the Service. Ankor grants the Customer a right to use the Service according to the terms of the Agreement, a right that is non-exclusive and non-transferrable.
The Customer undertake to use the Service only in accordance with the Agreement. The Customer shall only use the Service for the purpose of reconciliation of payments between sales channels and payment services.
The Customer undertakes to not, whether personally or through a third party, use the Service or the information generated through it to develop products, technologies or services competing with the Service and/or Ankor’s business. The Customer may not use the Service in a manner contrary to applicable laws, regulations, and/or customary practice.
The Customer is responsible for ensuring that all Users who use the Service via the Customer’s subscription respect the Agreement. Should the Customer, or any User that use the Service via the Customer’s subscription violate the provisions of the Terms of Service, Ankor has the right to immediately discontinue access to the Service.
4. ACCOUNT ACCESS
The account information including passwords created to access the account, shall not be shared with unauthorized third parties, and the Customer is responsible for keeping the information protected and safe from unauthorized access. If the Customer suspect that any unauthorized person has gained access to the account information or that any account linked to the Customers subscription has been unauthorizedly accessed, the Customer shall immediately change the password to the account and immediately inform Ankor in writing. The Customer shall ensure that the account information is accurate and up to date at all times.
5. PRICE AND PAYMENT
Proper function of the Service will require that the Service is fully paid for. The price of the Service is set out at the website (the “Subscription Fee”). The Customer undertakes to pay Ankor the Subscription Fee in accordance with the invoice. All amounts are exclusive of VAT.
The Subscription Fee includes use of the Service for the number of Users with access chosen by the Customer. Ankor has the right to at any given time adjust the Subscription Fee according to the relevant number Users.
Payments shall be made monthly, quarterly or annually in advance according to the Customer’s choice. Invoices have a thirty (30) day payment period. Should the Customer fail to make payments on time, Ankor may immediately discontinue providing the Service until payment has been made.
The Subscription Fee may be adjusted over time. Ankor shall communicate the changed Subscription Fee to the Customer, no later than thirty (30) days before the changed fee enters into force. The Customer shall notify Ankor of any change of the invoiced postal address or e-mail address.
Ankor may charge late payment interest, reminder fees and collection fees on overdue payments according to applicable law.
6. TECHNICAL SUPPORT
Ankor will, as part of the Service, provide the Customer with technical support related to the Customer’s access and use of the Service. Ankor will provide technical support for the Customer’s use during normal business hours, except for public holidays in Sweden.
7. TECHNICAL REQUIREMENTS
8. DATA
The correctness of any data uploaded or processed by the Users in the Service shall be the sole responsibility of the Customer. Ankor shall have the right to use the data processed in the Service for Ankor´s product and business development purposes.
9. INTELLECTUAL PROPERTY RIGHTS
Ankor owns all intellectual property rights, title and interest in the Service, including functionality, software, website design and all content, structure, databases, and source code (“Intellectual Property”). All Intellectual Property constitutes Ankor´s trade secrets.
The Customer is not allowed to modify, adapt, translate, reverse engineer, decompile, disassemble, or attempt to discover the source code of the Service, whether personally or through a third party.
This provision shall survive termination and expiration of the Agreement without limitation in time.
10. TERM AND TERMINATION
The Agreement enters into force as of the time the Customer digitally accept these Terms of Service when signing up for the Services. The Service is provided on an ongoing basis and the Agreement continues until Ankor or the Customer terminates it.
Both Parties have the right to terminate the Agreement without indicating a reason with 30 days written notice. Paid fees will not be refunded should the Agreement be terminated before the end of the paid period.
Either Party has the right to immediately terminate the Agreement if the other Party has materially breached a provision of the Agreement and the breach continues for ten (10) days following receipt of a notice regarding the breach.
11. USE OF THE SERVICE
The Customer will access and use the Service in compliance with applicable laws, regulations and these Terms of Service, The Customer warrants that it has the rights and authority to provide and upload all data and content into the Service and that this data and content accurate, up to date and complete, are not meant to cause damage or harm to Ankor or any third party, do not include viruses or other harmful code and do not violate the Agreement or applicable laws or regulations.
Ankor is not responsible for and cannot be held liable for the Users’ use of data generated by the Service. Ankor does not guarantee that the use of the Service at any time will be uninterrupted or error free.
12. LIABILITY AND INDEMNIFICATION
The Customer shall be solely responsible for the acts and omissions of all its Users. If the Customer is in breach of the Agreement, Ankor may suspend and deny the Customer access to the Service without notice in advance and take technical or legal measures to prevent the User from further use of the Service. Ankor shall not be liable for any loss of data or functionality caused directly or indirectly by the Customer.
Ankor shall not be liable for loss of profits, business, contracts, revenue or anticipated savings or any other indirect or consequential costs, losses or damages. Ankor’s liability under the Agreement shall under all circumstances be limited to an aggregated amount corresponding to the agreed Subscription Fee paid by the Customer for the period of twelve (12) months preceding the event causing liability.
The Customer agrees to defend Ankor against, and to indemnify and hold Ankor harmless from any claims or suits by a third party against Ankor or any liabilities or judgments based thereon arising out of the Customer’s use of the Services.
This provision shall survive termination and expiration of the Agreement without limitation in time.
13. FORCE MAJURE
The Parties shall not be liable towards each other by reason of any failure in the performance of their obligations under the Agreement due to force majeure including any circumstances beyond its control which a Party could not have been reasonably expected to foresee at the time of entering into the Agreement and the consequences of which it could not reasonably have avoided or overcome, or as a result of its sub-contractors being prevented from supplying goods or services due.
14. DATA PROTECTION
Ankor is the controller for personal data that are being processed when the Customer sign up to use the Service or to handle payments and other contacts with the Customers. For more information about the processing of personal data, see our Privacy Policy, which is available on our website, www.getAnkor.com.
When the Customer uses Ankors Services, Ankor processes any personal data entered into the Service as a processor, in accordance with the Data Processing Agreement (“DPA”) attached as Schedule 1 to these Terms of Service which is part of this Agreement. If these Terms of Service are in conflict with the DPA, the DPA shall be given precedence.
15. CONFIDENTIALITY
In connection with the delivery of the Service, both Parties may disclose confidential business, technological and other proprietary information to each other. In case such confidential information is made available by either Party, the other Party agrees to treat all such information as confidential unless otherwise clearly stated. The obligation to treat the information as confidential does not apply when any governmental, regulatory, or administrative authority requires the disclosure of such information.
This provision shall survive termination and expiration of the Agreement without limitation in time.
16. CHANGES
Ankor reserves the right to make changes, improvements and/or error corrections, including adding or removing functionality or imposing conditions on the use of the Service that may temporarily affect the Customer’s access to the Service at any time. Should the changes have any significant effects for the Customers, information of such changes will be communicated to the Customers via e-mail or modifications of the Terms of Service.
Ankor reserves the right to make changes or modifications to the Terms of Service from time to time. Ankor will post an updated version on Ankor’s website www.getAnkor.com. The Customer waives any right to receive specific notice of such change. The Customer is responsible for reviewing the Terms of Service from time to time to stay informed of updates. All modifications, which may include changes to the terms and/or additional terms, will apply to the Parties as of the publication date of such changes. If the Customer does not accept the modifications, the Customer must notify Ankor and cease all use of the Service. By continuing to use or access the Service after the modifications have come into effect, the Customer agrees to be bound by the modified terms.
17. ASSIGNMENT
Unless otherwise agreed in writing between the Customer and Ankor, the Customer shall not transfer or lend the right to use the Service to anyone.
18. SEVERABILITY
Should any provision of the Terms of Service be held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.
19. APPLICABLE LAW AND DISPUTES
The Agreement shall be governed exclusively by the laws of Sweden without reference to its principles on conflict of laws.
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the SCC Arbitration Institute (the “SCC”).
The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English. This contract shall be governed by the substantive law of Sweden.
Notwithstanding any other provisions of this section 19, any action for collection of any payment obligation may be brought in any court with competent jurisdiction.
