Master Subscription Agreement
This Master Subscription Agreement governs Customer’s acquisition and/or use of PEPICON Services. Capitalized terms have the definitions set forth herein and particularly under Section 2 below.
(I) any Order Confirmation;
(II) the Agreement; and
Unless otherwise specified herein, references to the Agreement shall also be deemed to include the above-mentioned documents.
Customer agrees to adhere to the terms of this Agreement by ticking a box indicating acceptance of this Agreement in connection with registering a Customer user account on the PEPICON Platform. Acceptance is required prior to the Customer’s use of the Services (including Beta Services, Services offered during a free trial period, Free Services and Purchased Services) and must be carried out by an Authorized Representative, after which the term “Customer” shall refer to such Customer and the Authorized Representative. Furthermore, the Authorized Representative represents that the Customer agrees and the Customer agrees to indemnify and hold PEPICON harmless for any violations of this Agreement by Customer, its Affiliates, its representatives, its employees, its consultants and any other contracted parties of the Customer. The Customer and the Authorized Representative each represent and warrant that that the information provided to PEPICON upon registration of a Customer user account on the PEPICON Platform is accurate and truthful.
If the Authorized Representative accepting this Agreement does not have the assumed authority to represent and bind the Customer to this Agreement, or if the Authorized Representative or the Customer does not accept this Agreement, such Authorized Representative and/or Customer must reject this Agreement and thereby decline the use of the Services.
PEPICON’s direct competitors (as decided at PEPICON’s sole discretion) are prohibited from accessing the Services, except with PEPICON’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
In order to use the PEPICON Platform and create a Customer user account, the Customer, Customer Representatives or Investor (as applicable) must not be a resident of any of the Prohibited Countries. Upon acceptance of this Agreement, the Customer and the Authorized Representative each represent and warrant that neither the Customer or Authorized Representative are residing in any of the Prohibited Countries, and further undertake not to submit Invitations to any entity or individual having its registered office or residing within such Prohibited Countries.
PEPICON reserves the right to immediately and at any time cease to offer the Services and/or terminate any Customer user account should PEPICON discover that (i) the individual acting on behalf of the entity, and accepting this Agreement, was not an Authorized Representative, (ii) a Customer or Authorized Representative has accessed the Services from a Prohibited Country, or (iii) the Customer or Customer Representative fails to fulfil any of the conditions herein or upon any breach of this Agreement by a Customer or a User.
- DESCRIPTION OF THE PEPICON PLATFORM
PEPICON provides resources and tools to entrepreneurs, organizations and professional Investors as well as non-professional Investors. PEPICON Platform is a funding software and a platform for investor relations management.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Authorized Representative” means an individual who is at least eighteen (18) years old and has legal capacity and the legal authority to represent a Customer.
“Beta Services” means PEPICON services or functionality that may be available to Customer to try at its option at no additional charge and which is clearly designated as a beta, pilot, limited release, developer preview, non-production, evaluation, or by similar description.
“Control” for the purpose of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer” means a legal entity for which a Customer Representative has created a Customer user account and in connection therewith has accepted this Agreement on behalf of such entity.
“Customer Content” means any electronic data and information regarding the Customer submitted by the Customer via an Authorized Representative, on the Customer’s user account on the PEPICON Platform, and which is made available to Investors, if invited by the Customer, to review in order to assess whether to make an investment in the Customer or not.
“Customer Representatives” means the Authorized Representative and other an individuals invited by Customer to administer its user account on the PEPICON Platform on behalf of the Customer, and to whom Customer (or, when applicable, PEPICON at Customer’s request) has supplied a user identification and password to the Customer’s user account at the PEPICON Platform. Customer Representatives may include, for example, representatives, employees, consultants, contractors and agents of Customer, which subject to Customer’s sole responsibility, have all agreed to adhere to this Agreement and the Platform Terms.
“Free Services” means Services that PEPICON makes available to Customers free of charge. Free Services exclude Services offered as a free trial, Beta Services and Purchased Services.
“Investor” means an individual or entity who has been properly registered at the PEPICON Platform as an “Investor” and has gained access via an Invitation from the Customer to review its Customer Content.
“Invitation” means a limited number of invitations a Customer may send to Investors, in order for Investors to gain access to the PEPICON Platform and review Customers’ submitted Customer Content in order to assess whether to make an investment in the Customer or not.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means the official area on the PEPICON Platform where an Investor can indicate interest in investing in the Customer, provided that the Customer has sent the Investor an Invitation.
“Order” means an online order made by Customer in its user account on the PEPICON Platform, specifying the Services to be provided by PEPICON under this Agreement.
“Order Confirmation” means PEPICON’s acceptance of a placed Order by Customer on the PEPICON Platform sent to the Customer by e-mail or by a message in the Customer’s user account on the PEPICON Platform.
“PEPICON” means Pepicon AB, reg. no 559214-7408, with registered address Värmdövägen 84, 131 54 Nacka, Sweden.
“PEPICON Content” means any functionality, content and information made available to Customers through the Services including for example, but not limited to, (i) any content on the PEPICON Platform owned or licensed by PEPICON and (ii) any information, either obtained by PEPICON from publicly available sources or its third-party content providers.
“PEPICON Platform” means the webpage https://www.pepicon.com/, administered and owned by PEPICON, where the Services are provided.
“Prohibited Countries” means the United States, Canada, Singapore, South Africa, Hong Kong, Japan, Australia, New Zealand or any other jurisdiction where the offering of the Services or entering of this Agreement violates applicable laws or regulations or requires any additional documentation or action to be drafted, registered or otherwise carried out. An entity or individual may not be residing within any of the Prohibited Countries in order to register for an account on the PEPICON Platform as a Customer, Customer Representatives or Investor, and Customer and Customer Representatives further undertake not to send Invitations to Investors residing within Prohibited Countries.
“Purchased Services” means Services that Customer orders from PEPICON by placing an Order on the PEPICON Platform, not being Free Services, Beta Services or Services provided pursuant to free trial.
“Services” means the Services provided by PEPICON, and shall include any Purchased Services, Free Services, Beta Services and/or Services offered pursuant to free trial in accordance with an Order Confirmation.
3. PEPICON’S UNDERTAKINGS
3.1. Provision of Purchased Services
Pursuant to this Agreement, PEPICON undertakes to:
(a) make the Services and PEPICON Content available to Customer;
(b) provide Customer with applicable PEPICON standard support related to the functionality for the Purchased Services at no additional charge, and/or upgraded support if purchased by the Customer;
(c) exercise commercially reasonable efforts to make the online Purchased Service available twenty-four (24) hours a day, seven (7) days a week. However, PEPICON points out that the availability of the Purchased Services may be interrupted or disrupted due to: (i) scheduled downtime for maintenance or similar measures (of which PEPICON shall give advance electronic notice), and (ii) by any circumstances beyond PEPICON’s reasonable control, including but not limited to, acts of third parties that do not act on behalf of PEPICON, force majeure events such as act of God, act of government, pandemics, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than involving PEPICON employees), Internet service provider failure or delay; and
(d) provide the Services in accordance with laws and government regulations applicable to PEPICON’s provision of its Services to its customers generally (i.e. without regard for Customer’s particular use of the Service), and subject to Customer’s use of the Services in accordance with this Agreement and applicable Order Confirmation.
PEPICON reserves the right to add or change or update the features of the Services under the subscription period at its sole discretion without prior written notice to the Customers.
3.2. Protection of Customer Content and Personal Data
PEPICON will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Content (other than by Customer, Customer Representatives or Investors).
The Customer undertakes to process personal data in accordance with applicable data protection laws and shall not process personal data in a manner contrary to the obtained consent of a data subject. Customer and PEPICON acknowledges that upon the provision and use of the Services, processing of personal data on behalf of the other party may be relevant. In such an event, the parties each undertake and agree to prior to such processing, enter into a separate personal data processing agreement in accordance with applicable data protection laws. Furthermore, the Customer undertakes not to include any personal data of a data subject in the Customer Content submitted by the Customer on the PEPICON Platform, unless the parties prior thereto have entered into a separate personal data processing agreement. The Customer shall in any event inform PEPICON if the Customer prefers to include any personal data in the Customer Content, upon which PEPICON, at its sole discretion, may decline such request. The Customer shall indemnify and hold PEPICON harmless in full in the event of a breach of this undertaking by Customer (including its representatives, employees, consultants and other contracting parties which has received access to its Customer user account on the PEPICON Platform).
3.3. Responsibility for Employees, etc.
Except as otherwise specified in this Agreement, PEPICON will be fully responsible for its own employees, directors, representatives and contractors that are involved in the performance of PEPICON’s obligations under this Agreement.
3.4. Beta Services
PEPICON may from time to time and free of charge provide Customer with access to Beta Service, which Customer may choose to try or not in its sole discretion. Any use of the Beta Services may further be subject to separate Beta Services terms as applicable from time to time.
3.5. Free Trial
If Customer registers on PEPICON Platform for a Service offered on a free trial period, PEPICON will make the applicable Service(s) available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s) by placing an Order, or (c) termination by PEPICON in its sole discretion. Additional trial terms and conditions may appear upon registration of the Service offered on a free trial period in the Customer user account on the PEPICON Platform, which must be separately accepted by the Customer in order to use such Service(s). Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding to the Customer.
Any data Customer enters into the Services, and any customizations made to the Services by or for Customer, during Customer’s free trial will be permanently lost unless Customer purchases a subscription to the same Services as those covered by the trial, purchase applicable upgraded Services, or export such data, before the end of the free trial period.
3.6. Free Services
Free Services may be available to Customer, whereupon Customer’s use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 3.6 and any other section of this Agreement, this Section 3.6 shall prevail.
Free Services are provided to Customer free of charge up to certain limits as set out in the Order Confirmation. Once the limits as specified in the Order Confirmation have been exceeded, Customer’s will be required to purchase additional resources or Services from PEPICON.
Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer further agrees that PEPICON will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting any Customer Content from the Free Services prior to termination of Customer’s access to the Free Services for any reason and PEPICON is not responsible for any loss of such Customer Content should Customer fail to export the Customer Content prior to termination by PEPICON. Unless otherwise required by law, PEPICON will provide the Customer with a reasonable opportunity to retrieve its Customer Content.
The Marketplace will be available on the PEPICON Platform for Investors and Customer and allows the Investor to show interest in investing in the Customer, from which the Investor has received an Invitation, after having reviewed the Customer Content. The shown interest by invited Investors on the Marketplace is only visible to the Customer, in the Customer’s personal user account. For the avoidance of doubt, no transactions can be made between the Investor(s) and the Customer on the Marketplace, and the Marketplace may strictly be used by Investors to indicate interest in the Customer and for the Customer to understand investment interests. Any negotiations and agreements between the Customer and the Investors regarding any investments in the Customer must be carried out outside of the PEPICON Platform. Customer is solely responsible towards the Investors for confirming and executing any such investments between the Investor and Customer and shall in no event involve PEPICON in any such agreements. PEPICON shall under no circumstances be considered a party to any such agreements.
4. USE OF SERVICE AND PEPICON CONTENT
Unless otherwise specified in the applicable Order Confirmation, the following shall apply:
(a) Purchased Services and access to PEPICON Content are purchased as subscriptions for the term stated in the applicable Order Confirmation or in the applicable third party online purchasing portal;
(b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of the subscription term remaining at the time the subscriptions are added; and
(c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PEPICON regarding future functionality or features.
4.2. User Limitations
Services and PEPICON Content are subject to usage limits specified in this Agreement and in the Order Confirmation. If Customer exceeds a contractual usage limit, PEPICON may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding PEPICON’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer undertake to execute an Order for additional quantities of the applicable Services or PEPICON Content promptly upon PEPICON’s request, and/or pay any invoice for excess usage in accordance with Section 5.2 below.
Customer hereby acknowledges the restriction in Chapter 1 Section 7 in the Swedish Companies Act (2005:551), applicable to limited liability companies, prohibiting such companies to offer securities for subscriptions or sale to more than two hundred (200) persons and/or in the Swiss Federal Act on Financial Services (Financial Services Act, FinSA) which particularly provides for a duty to publish a prospectus but also for exceptions like (amongst others) if an offer is addressed at fewer than 500 investors and undertakes to adhere to these restrictions (if applicable) and/or any other applicable restrictions hereto, when using the Service and sending Invitations to Investors. Notwithstanding limitations in the Order Confirmation, Customer shall always adhere to the aforementioned restrictions and any similar restrictions in other jurisdictions if applicable to the Customer as the case may be and acknowledges and agrees that it is the Customer’s full responsibility to ensure that these restrictions are preserved. For the avoidance of doubt, these restrictions include any persons which have been targeted with an investment offer irrespective if it occurred on or outside the PEPICON Platform or any other Services, if such offer refers to the same Customer. Customer shall, in any event, indemnify and hold PEPICON and its Affiliates harmless in the event of any claim from an authority, Investor or third party in relation to nonfulfillment by Customer or Customer Representatives of such restrictions. PEPICON strongly advises Customer to seek professional legal advice to ensure compliance with such restrictions.
The Customer acknowledges that the Customer Content submitted by the Customer on its user account on the PEPICON Platform cannot exceed the data storage limits as applicable to the use of the Service from time to time. The Customer acknowledges that the currently applicable data storage limit amounts to a maximum of 1TB and any amendments hereof can be made by PEPICON, at its sole discretion, after a written notification hereof to the Customer.
4.3. Customer Responsibilities
Customer will (a) be responsible for Customer Representatives’ use of the Service and compliance with this Agreement, and Customer undertakes to at all time indemnify and hold PEPICON harmless in the event of any breach thereof by such Customer Representatives, (b) be responsible for the accuracy, quality and legality of Customer Content, the means by which Customer acquired Customer Content, Customer’s use of Customer Content with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify PEPICON promptly of any such unauthorized access or use, (d) use Services and PEPICON Content only in accordance with this Agreement and applicable laws and government regulations, (e) be responsible towards Investors in relation to any investment made by Investors based on the Customer Content, (f) separately and outside of the PEPICON Platform negotiate and finalize relevant agreements and other documentation with the Investor regarding any potential investment, and (g) comply with the limitations specified in Section 4.2 above.
By way of clarification of item (f) above, Customer acknowledges and agrees that any procedure, negotiation, documentation, agreement, dispute, controversy, and similar relating to any investment in the Customer by an Investor, based on the Customer Content, shall be carried out separately between the Customer and the Investor, outside of the PEPICON Platform. Customer shall have the sole responsibility towards the Investor and indemnify and hold PEPICON harmless in the event of any claim from an Investor or third party in relation to such investment in the Customer.
Any use of the Services in breach of the foregoing in this Section 4.3 by Customers or Customer Representatives that in PEPICON’s judgement threatens the security, integrity or availability of PEPICON’s Services, may result in PEPICON’s immediate suspensions of the Services, however PEPICON will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any suspension.
4.4. Prohibited Use and Customer Restrictions
The Services and PEPICON Content may not be used for any purpose that would be a violation of this Agreement. Customer shall not (and shall not permit any third party to) (a) make any Service or PEPICON Content available to anyone other than Customer or Customer Representatives, or use any Service or PEPICON Content for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Confirmation, (b) not send Invitations to or otherwise make any Services or PEPICON Content available to Investors or Customer Representatives residing within any of the Prohibited Countries, (c) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or PEPICON Content in a service bureau or outsourcing offering, (d) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use a Service or PEPICON Platform to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to any Service or PEPICON Content or its related systems or networks, (h) permit direct or indirect access to or use of any Service or except as permitted under this Agreement, (i) modify, copy, or create derivative works based on a Service, PEPICON Content, PEPICON Platform or any part, feature, function or user interface thereof, (j) copy PEPICON Content except as expressly permitted herein or in an Order Confirmation, (k) frame or mirror any part of any PEPICON Platform, Service or PEPICON Content, disassemble, reverse engineer, or decompile the PEPICON Platform, a Service or PEPICON Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service or PEPICON Platform, (3) copy any ideas, features, functions or graphics of the Service or PEPICON Platform, or (4) determine whether the Services are within the scope of any patent.
4.5. Removal of Customer Content and/or PEPICON Content
If Customer receives notice from PEPICON that Customer Content must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or if the responsibilities or undertakings by the Customer or restrictions regarding the use of the Services as set out in this Agreement is not respected by Customer, Customer will promptly and without undue delay, act in accordance with such notice and remove, modify and/or disable such Customer Content. Notwithstanding any other rights and remedies of PEPICON, if Customer does not take required action in accordance with the above, or if in PEPICON’s judgment continued violation is likely to reoccur, PEPICON may immediately disable the applicable Customer Content, and withdraw or limit Customer’s access to PEPICON Platform, PEPICON Content and/or Service without being liable to refund any payments made by Customer. If requested by PEPICON, Customer shall confirm such deletion and discontinuance of use in writing and PEPICON shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable.
In addition hereto, if PEPICON is required by any third-party rights holder to remove any Customer Content and/or PEPICON Content, or receives information that PEPICON Content provided to Customer may violate applicable law or third-party rights, PEPICON may discontinue Customer’s access to such PEPICON Content through the Services without being liable towards Customer for the inability to access the PEPICON Content or to refund any payments made by Customer.
- FEES, PAYMENT AND TAXES
Fees payable by Customer will be specified in the Order Confirmation. Except as otherwise specified herein or in the Order Confirmation, (i) fees are based on Services and PEPICON Content subscriptions purchased and not actual usage of the aforementioned and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
5.2. Invoicing and Payment
Unless otherwise specified in the Order Confirmation, payment for Purchased Services will be made by Customer by credit card or with a valid purchase order or alternative document reasonably acceptable to PEPICON whereby Customer shall provide PEPICON with valid and updated credit card information, or with such a valid purchase order or alternative document. If Customer provides credit card information to PEPICON, Customer authorizes PEPICON to charge such credit card for all Purchased Services listed in the placed Order for the initial subscription term and any renewal subscription term(s), unless terminated in accordance with Section 10.3 below. Charges attributable to Purchased Services shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Confirmation. If the placed Order specifies that payment will be by a method other than a credit card, PEPICON will invoice Customer in advance and otherwise in accordance with the relevant Order Confirmation. Unless otherwise stated in the Order Confirmation, invoiced fees are due net thirty (30) days from the date of invoice. Customer is responsible for providing complete and accurate billing and contact information to PEPICON and notifying PEPICON of any changes to such information.
5.3. Late Payments, etc.
Any late payment will, without limiting PEPICON’s rights or remedies, accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate prescribed by applicable law, whichever is lower. If Customer fails to pay the fees set forth in the Order Confirmation, PEPICON may at its sole discretion condition future subscription renewals and additional Orders placed by Customer with payment terms shorter than those specified in Section 5.2 above.
5.4. Suspension of Service and Acceleration
In the event that any charge owing by Customer to PEPICON or to its Affiliates under this Agreement or any other agreement for the Services or other services is thirty (30) days or more overdue, (or ten (10) or more days overdue in the case of amounts Customer has authorized PEPICON to charge to Customer’s credit card), PEPICON may, without limiting its other rights and remedies, suspend Customer’s access to the Services, until such amounts are paid in full. In addition hereto, PEPICON may in connection with suspending Customer’s access to the Services, accelerate Customer’s unpaid fee obligations under such agreements for immediate payment. Notwithstanding the aforesaid, Customers paying by credit card or direct debit and whose payment has been declined will be given at least ten (10) days’ prior notice that its account is overdue before PEPICON may decide to suspend such Customer’s access to any services provided by PEPICON.
5.5. Payment Disputes
In the event that any applicable fees charged under this Agreement are disputed by Customer, PEPICON will not exercise its rights in accordance with Sections 5.3 and 5.4 above provided that such compliant has reasonable grounds and that Customer in good faith cooperates diligently to resolve the dispute.
Fees charged by PEPICON under this Agreement do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (jointly referred to as “Taxes”).
Customer is responsible for paying any and all Taxes associated with its purchases under this Agreement. In case PEPICON is required by law to pay or collect Taxes for which Customer is responsible to pay in accordance with this Section 5.6, PEPICON will invoice Customer and Customer will pay to PEPICON the amount stated in such invoice unless Customer provides PEPICON with a valid tax exemption certificate authorized by the appropriate tax authority. For the avoidance of doubt, PEPICON is solely responsible for taxes assessable against it based on its income, property and employees.
- PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights
All ownership, title and interest in and to the Services and PEPICON Content, including all of their related intellectual property rights, whether registered or not (“Intellectual Property”), remains the sole property of PEPICON or its Affiliates, licensors and content providers. Except for the limited rights granted to Customer as expressly set forth in this Agreement, Customer or Customer Representatives does not receive nor is granted any licenses or rights to the Intellectual Property. Customer or Customer Representatives shall not during or at any time after the expiry of this Agreement (whether in whole or with respect to support only) in any way question or dispute the ownership by PEPICON or such mentioned other party.
By accepting this Agreement, the Customer and Customer Representatives hereby undertake not to use, modify, disseminate, sell or save the Service or the PEPICON Platform and not to publish or indirectly cause the publication of any material by PEPICON or any third party under this Agreement.
6.2. License by Customer to Use Feedback
PEPICON and its Affiliates are hereby granted by Customer a worldwide, perpetual, irrevocable, royalty free, transferable and sublicensable license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer Representatives relating to the operation of PEPICON’s or its Affiliates’ services.
6.3. User’s Right to Access and Use the PEPICON Content
Subject to the terms of this Agreement, Customer hereby receives the right to access and use applicable PEPICON Content.
6.4. PEPICON’s Right to Access and Use the Customer Content
Subject to the terms of this Agreement, PEPICON and its Affiliates hereby receive each individually the right to access and use applicable Customer Content.
7.1. Confidential Information
Under this Agreement “Confidential Information” means any confidential or proprietary information and documentation disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes in particular Customer Content; Confidential Information of PEPICON includes in particular the Services and PEPICON Content, and the terms and conditions of this Agreement and all Order Confirmations (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in Section 7 apply to Confidential Information exchanged between the parties in connection with the evaluation of additional PEPICON services.
As between the parties, each party retains all ownership rights in and to its Confidential Information.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than to its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7. Notwithstanding the foregoing, PEPICON may disclose the terms of this Agreement to a subcontractor to the extent necessary to perform PEPICON’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
Notwithstanding the aforesaid in this Section 7, each party agrees that a Receiving Party shall have no obligation of confidentiality: (a) with respect to information which is already known to the Receiving Party at the time of disclosure by the other Party, as evidenced by actual prior use by the Receiving Party, (b) with respect to information which is, at the time of that disclosure, or comes thereafter, in the public domain other than pursuant to a breach by the receiving party, (c) with respect to information which is rightfully received from a third party without a restriction on further disclosure and without breach of the provisions of this Agreement, (d) with respect to information which is independently developed by or on behalf of the Receiving Party by individuals having no direct or indirect access to the Disclosing Party’s Confidential Information, or (v) with respect to information which is disclosed by the Disclosing Party expressly without restriction.
7.4. Compelled Disclosure
In the event that any party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental or regulatory body, such Party agrees to (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding such a request, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request, and (c) if disclosure of such Confidential Information is required, exercise its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the disclosing Party so designates.
- REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
Each party represents to the other party that it duly organized, validly existing and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation and has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder.
8.2. PEPICON Warranties
Subject to what is otherwise stated in this Agreement, PEPICON warrants that during an applicable subscription term (a) this Agreement will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content, (b) PEPICON will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the applicable documentation given. For any breach of a warranty above, Customer’s exclusive remedies are those described in Sections 10.4 and 10.5 below.
Except as expressly provided herein, PEPICON makes no warranty of any kind, whether express, implied, statutory or otherwise, and PEPICON specifically disclaims all implied warranties, including any implied warranty of merchantability or fitness for a particular purpose or non-infringement or any third party rights, to the maximum extent permitted by applicable law and regulations. PEPICON Content and Services are provided “as is”, and as available exclusive of any warranty whatsoever.
- INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1. Indemnification by Customer
Customer undertakes to defend, indemnify and hold harmless PEPICON, its shareholders, employees, officers, contractors, agents, Affiliates, directors, suppliers and representatives from all damages, losses, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from or related, directly or indirectly, to: (i) Customer’s use or misuse of, or access to, the Services; (ii) Customer’s violation of this Agreement; (iii) any Customer Content, information or materials provided by Customer; or (iv) infringement by Customer, Customer Representatives or any third party using Customer’s account or identity relating to the Services, of any intellectual property or other right of any person or entity. PEPICON reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will assist and cooperate with PEPICON in asserting any available defenses.
9.2. PEPICON Liabilities
In no event shall PEPICON be liable for indirect damage including, but not limited to, loss of business, revenues, profit, revenues and goodwill and loss of data and inability to fulfill obligations to third parties or loss of benefit of the Agreement.
Nor shall PEPICON (or any of its shareholders, employees, officers, contractors, agents, Affiliates, directors, suppliers and representatives) in any event be liable for any claims or damages in excess in the aggregate of the amounts actually paid by Customer to PEPICON during the calendar year of the damaging event.
Any claims for damages under this Agreement shall be submitted not later than three (3) months after the Customer becomes aware of the basis for the claim, however never later than six (6) months from expiration or termination of Customers use of the Services.
- TERM AND TERMINATION
10.1. Term of Agreement
This Agreement shall come into force on the date Customer first accepts it and shall continue until all subscriptions hereunder have expired or have been terminated.
10.2.1. PEPICON can after written notification make small amendments to the terms of this Agreement which shall become effective five (5) days after the notification thereof. If Customer does not accept such small changes of the Agreement, Customer’s sole remedy shall be to cease its use of the Service and/or to terminate the subscription in accordance with Section 3. The Customer shall in no event be entitled to receive any refund of already paid subscription fees due to termination of the Agreement as a result of this Section 10.2.1.
10.2.2. PEPICON can after written notification make significant amendments to the terms of this Agreement which shall become effective thirty (30) days after the notification thereof. If the Customer does not accept such changes of the Agreement, Customer shall have the right to reject the implementation of the amendments, whereby the current version of this Agreement shall continue to apply until the end of Customer’s current subscription period. Such notice of rejection shall be made not later than thirty (30) days after Customer has received the message notifying about the amendment. However, upon automatic renewal of the subscription, in accordance with Section 3 below, the notified significant amendment(s), including any other amendments by PEPICON, shall automatically become effective upon such subscription renewal. If Customer does not accept such automatic amendment(s) of the Agreement, Customer’s sole remedy shall be to terminate the Agreement upon expiry of the current subscription period in accordance with Section 10.3. below. The Customer shall be responsible to pay any unpaid fees covering the remainder of the subscription of all placed Orders, and in no event shall the Customer be entitled to receive any refund of already paid subscription fees due to termination of the Agreement in accordance with this Section 10.2.2.
10.3. Term of Purchased Subscriptions
The term of each subscription purchased by Customer shall be as specified in the applicable Order Confirmation. Except as otherwise specified in an Order Confirmation, subscriptions will automatically renew for additional period equal to the expiring subscription term or one (1) year (whichever shorter), unless a party gives the other party a written notice (e-mail acceptable) at least thirty (30) days before the end of the relevant subscription term. PEPICON reserves the right to change the price for the renewed subscription period in accordance with PEPICON’s applicable price list in effect at the time of the applicable renewal.
Either party shall be entitled to terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party in the event of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Furthermore, PEPICON reserves the right to terminate or suspend Customer’s access to all or any part of the Services, with or without cause, effective immediately at its sole discretion.
10.5. Refund or Payment upon Termination
If this Agreement is terminated by either party in accordance with Section 10.4 above, Customer will pay any unpaid fees covering the remainder of the term of all placed Orders to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to PEPICON for the period prior to the effective date of termination.
Customer’s and Customer Representatives’ right to use the Services expires at termination of this Agreement.
10.6. Force Majeure
Notwithstanding anything to the contrary herein, PEPICON shall not be liable to the Customer for any delay in performance of failure to perform its obligations in accordance with this Agreement where such delay or failure is due to circumstances beyond its control and unknown to it at the date of this Agreement. If a force majeure event continues for a period of more than forty-five (45) days, PEPICON may terminate this Agreement by giving not less than seven (7) days written notice to the Customer.
10.7. Surviving Provisions
Sections 3.6 (Free Services), 4.5 (Removal of Customer Content and/or PEPICON Content), 5 (Fees, Payment and Taxes), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.3 (Disclaimers), 9 (Indemnification and Limitation of Liability), 10.5 (Refund or Payment upon Termination), 10.7 (Surviving Provisions) and 11 (Governing Law and Dispute Resolution) will survive any termination or expiration of this Agreement, and the data protection terms under Section 3.2 (Protection of Customer Content and Personal Data) will survive any termination or expiration of this Agreement for so long as a party processes personal data on behalf of the other or otherwise as required in accordance with the applicable data protection laws.
- GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement and all issues in connection with them or the use of the PEPICON Services, shall be governed by and construed in accordance with the substantive laws of Sweden, without respect to its conflict 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 administered by the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English, unless the parties have agreed otherwise
The parties shall primarily seek through consultation and negotiation in good spirits to resolve disputes arising in the occasion of the Agreement.
The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the Institute – taking into account the complexity of the case, the amount in dispute and other circumstances – determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
The parties undertake and agree that all arbitral proceedings conducted with reference to this Section 11 will be kept strictly confidential. This notwithstanding, a party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other parties in connection with the dispute, or if such a right exists pursuant to statute, regulation, a decision by an authority, a stock exchange rules or similar.
Any party, before or during any arbitral proceedings, may apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of the arbitral proceedings.
12. ADJUSTED TERMS & CONDITIONS FOR SEB (Skandinaviska Enskilda Banken AB) CLIENTS (as of 12.5.2020)
PEPICON’s Terms & Conditions are adjusted exclusively for SEB clients from 12th May 2020 until the 31st December 2020. The following conditions apply:
After a 30 days of PEPICON free trial the SEB clients get the chance to subscribe to PEPICON Platform for a heavily discounted price, having two options:
- If the SEB client signs-up with PEPICON Platform before or on the 19th June 2020 they get a chance to upgrade to an Epic license for 5 months at only SEK 100 per month.
- If the SEB client signs-up with PEPICON Platform between 20th June – 31st December 2020 they get a chance to upgrade to a Basic license for 5 months at only SEK 100 per month.
When subscribing to the special offer, the SEB client can cancel at any time, being charged for each month separately, in five (5) separate payment installments.
At the end of the 5th discounted month, their subscription will expire automatically (not being auto-renewed). If the SEB client wishes to continue using PEPICON Platform at that stage, they have to upgrade to the subscription of their choice and agree to the generally applicable terms.
 The General Data Protection Regulation (GDPR) (EU) 2016/679.