Briqpay and Customer have entered into an Agreement of which these General Terms and Conditions shall form an integral part. All capitalized terms herein shall have the same meaning as set forth in the Service Agreement unless otherwise stated herein.
SECTION I – THE SERVICES
The Services. Briqpay shall deliver to Customer the Services specified in the Service Agreement, and any additional Services ordered by Customer.
Additional Services. Customer can order additional services and add-on features available from time-to-time. Any order made by an Authorized User (as defined below) given administrational rights is binding for Customer. Briqpay shall deliver the ordered Service in accordance with the Service description and Customer shall pay the fees for the Service cited therein.
License. Subject to and conditional upon Customer’s payment of the fees and compliance and performance in accordance with all terms and conditions of the Agreement, Briqpay hereby grants to Customer, during the term of this Agreement, a non-exclusive, non-transferable, royalty-free license to use the Services.
SECTION II – THE CHECKOUT
Set-up and installation
Access and set-up. Briqpay shall upon the date of signature provide to Customer API’s and documentation required to set up the Services.
Customer obligations. Customer is responsible for the installation of the Checkout, unless otherwise agreed between the Parties. Customer shall perform set-up and installation and go live at the latest three (3) months after the date of signature. Customer acknowledges and agrees that Customer is solely responsible to ensure its installation, configuration and use of the Checkout is compliant with all applicable law and that Customer has the third-party licenses required to use third-party integrations.
Assistance. If Briqpay assists Customer during the installation, Briqpay is entitled to charge the Customer in accordance with the then current price list for installation services, or as agreed between the Parties.
Uptime. Briqpay does not warrant that the Services will be uninterrupted or error-free or that defects will be corrected. However, Briqpay guarantees a 99.92% uptime of the Checkout and Registration, respectively, during each one-year period, starting from the Go live-date (“Uptime”). Uptime is calculated as follows: total minutes in any calendar year minus minutes of unavailability divided by the total minutes in the same year. Downtime caused by circumstances in clauses 3.2–3.3 shall be excluded from the count of unavailability.
Interruptions caused by third party. Briqpay is not liable for any lack of access of the Checkout or Registration due to external attacks causing viruses or harm despite Briqpay having applied industry standard protection mechanisms, nor by disturbances in internet or cloud provider infrastructure, or other failures caused by unavailability of a third-party service. For avoidance of doubt, Briqpay is not liable for interruptions or unavailability of services Customer has integrated to the Checkout or the Registration, including but not limited to payment service providers’ services.
Interruptions caused by Customer. Briqpay is not liable for unavailability caused by Customer’s use of the Services in conflict with the Agreement or Briqpay’s instructions.
Remedies. If the Uptime falls below 99.92%, Customer may be entitled to a price reduction corresponding to the time the Checkout or Registration, as applicable, was unavailable. Price reduction is subject to Customer reporting downtime to Briqpay in accordance with clause 5.5. The foregoing is Briqpay’s entire liability and Customer’s sole and exclusive remedy under the above limited warranty.
Limitations. Customer is not entitled to compensation for limitation or lack of access due to circumstances outside Briqpay’s control, including but not limited to circumstances described in clauses 3.2–3.3.
Changes to the Checkout or registration. Briqpay continuously develops the Checkout and registration product and shall be entitled to update, amend and modify the Checkout and registration product, provided that the performance or functionality does not decrease in any material way as a consequence of such changes.
Updates. All updates shall be provided to Customer upon release free of charge. Updates mean changes and improvements to the current version of the Checkout and registration product. Customer is aware that such updates may require adjustments in Customer’s equipment or software solutions, for which costs and adaptions Customer is responsible for.
Upgrades. Upgrades may be subject to additional fees. Upgrades mean any change of the Checkout and registration which adds or removes functionality in relation to the functionality of the previous version of the Checkout and registration product.
SECTION III – SUPPORT
Errors. Briqpay commits to provide support and correct any Errors in the Services free of charge, subject to terms in this clause 5. “Errors” mean malfunctions or program error where either a function that has previously worked no longer works, or that the Services cannot be used in the intended way.
Exclusions. Briqpay is not responsible for Errors caused by:
use of the Services other than in accordance with the documentation or Briqpay’s instructions; or
use of the Services other than in accordance with its purpose; or
any modification of the Services by Customer without Briqpay’s written consent; or
downtime caused by circumstances described in clauses 3.2–3.3.
Priority levels. An Error is divided into different priority levels:
Prio 1: Disturbance that prevents Customer’s customers from using the Checkout and/or registration product, such as downtime or no functions.
Prio 2: Disturbance in the Checkout and/or registration product that makes the system not work in a satisfactory way, but Customer’s end customers can still use the Checkout and/or registration product.
Prio 3: Disturbances in the Backoffice, or disturbances in the Services that affects the functionality of the Services in daily work to a very limited extent.
Support. Briqpay will use commercially reasonable efforts to correct the problem within a reasonable period of time, based on the priority level of the Error.
Reporting Errors. Customer shall report any Errors and downtime to Briqpay without undue delay and within 24 hours by e-mail to firstname.lastname@example.org. Failure to do so may result in additional service fees for correcting the Error.
Other support. If a support query proves to be caused by circumstances that are not considered as an Error, Briqpay is not obliged to correct the problem free of charge to Customer. In such cases, Customer shall receive a cost estimate for the support from Briqpay and accept it before any support is initiated.
SECTION IV – PRICING AND PAYMENT
Fees. Customer shall pay the price for Customer’s Subscription Level quoted in the Service Agreement, and any other Services ordered by Customer.
Subscription upgrades. If Customer exceeds the number of transactions included in Customer’s Subscription Level, Briqpay is entitled to invoice Customer for a fee corresponding the completed transactions.
Taxes. All fees and charges are set out exclusive of value added tax (VAT) and other additional taxes and charges.
Price changes. Unless otherwise agreed in the Service Agreement, Briqpay has the right to adjust its fees for the Services upon notice to Customer, no later than three (3) months prior to when the new fee shall take effect. If Customer does not accept the new fee, Customer has the right to terminate the affected Service by notifying Briqpay within (10) business days from receiving notice thereof. In such event, the affected Service will be terminated on the same date as the new fee shall take effect. If such notice is not given, Customer is deemed to have approved the new fee.
Currency fluctuations. Briqpay has the right to adjust its fees annually due to currency fluctuation for services from suppliers, inflation, or other events outside Briqpay’s control. Briqpay shall notify Customer of the new fee and the reason for the adjustment no later than thirty (30) days prior to when the new fee shall take effect.
Subscription fee. The first Subscription Fee is charged upon Go-live Date.
Payment. All fees shall be paid monthly in advance upon receipt of invoice. Payment shall be received by Briqpay no later than thirty (30) days from the date of the invoice.
Invoice Objections. Invoice objections must be presented in writing no later than three (3) weeks after the date of invoice. Even if an objection has been raised within such period, Customer shall pay the undisputed part of the invoiced amount by the due date.
Late payment. In the event Customer fails to make payment on due date, Briqpay shall be entitled to charge for payment reminders, collection charges and late payment interest. Late payment shall carry interest according to the Swedish Interest Act (1975:635) on the outstanding amount until full payment has been made.
Assignment. Briqpay has the right to assign its right for payment under the Agreement to a third party.
SECTION V – PERMITTED USE
Access and use of Services. Only Customer and those Customer employees, consultants, contractors, or agents who are authorized by Customer to use the Services in support of Customer’s operations, and who have been given user logins and passwords by Customer (“AuthorizedUsers”) may access and use the Services and other materials provided to Customer in conjunction with the Services.
Rules of conduct. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by the Agreement and, in the case of third-party materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer agrees:
to only access or use the Services through Authorized Users using of his or her own then valid login credentials;
to comply, and ensure that Authorized Users comply, with all applicable laws, regulations and public orders in connection with use of the Services;
to keep all login credentials, security methods and other information provided by Briqpay to access the Services confidential and secure, and to promptly notify Briqpay in the event an unauthorised person has accessed the Services or any information in it;
not to access the Services other than through interfaces provided by Briqpay and as otherwise expressly authorized under the User Terms, which are hereby incorporated by reference and considered an integral part of the Agreement;
not to input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
not to bypass or breach any security device or protection used by the Services; or
not to damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services.
SECTION VI – INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Intellectual Property Rights
Ownership. Ownership of and all Intellectual Property Rights in the Services, Checkout, Registration product and any derivatives, enhancements, or improvements thereof, vest exclusively in Briqpay and, or as the case may be, its suppliers or licensors. “Intellectual Property Rights” shall mean any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, design right, database right, topography right, trademark, service mark, the right to apply to register any of the aforementioned rights, trade secret, right in unpatented know-how and any other intellectual or industrial property right, in any part of the world.
Granted rights. Except for the limited rights expressly granted under the Agreement, nothing in the Agreement or otherwise between the Parties shall be construed as transferring or assigning the title or ownership of any Intellectual Property Rights in the Services from Briqpay to Customer.
Prohibited use. Customer shall not, and shall not attempt to, by itself or through its Authorized Users or third parties;
copy, modify or create derivative works of the Services;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any portion of the Services to any third party;
reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
alter, remove, obscure, frame or mirror Briqpay’ or its suppliers’ branding, proprietary notices or any content forming part of the Services;
access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Briqpay or any third party, or that violates any applicable legislation; or
access or use the Services for purposes of competitive analysis, development, provision or use of a competing software service or product or for any other purpose that is to Briqpay’ detriment or commercial disadvantage.
Use of Confidential Information. In connection with the Agreement a Party (“Disclosing Party”) may disclose or make available Confidential Information to the other Party (“Receiving Party”). The Receiving Party shall, during the term of the Agreement and for a period of five (5) years after the termination hereof, not reveal Confidential Information to third parties, which the Receiving Party obtains from the Disclosing Party or which arises during performance of the Services.
Confidential Information. “Confidential Information” refers in the Agreement to any item of information – technical, commercial or of any other nature disclosed by Disclosing Party – regardless of whether or not such information has been documented, with the exception of information that:
was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement;
was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ non-compliance with the Agreement;
was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Restrictions. Receiving Party agrees to ensure that its employees, consultants and board members do not disclose Confidential Information to third parties.
Survival. The obligations in this clause 10 shall survive the termination of the Agreement.
SECTION VII – DATA AND DATA PROTECTION
Statistics and Data
Customer data. Customer owns the data provided to Briqpay by Customer in connection with the Services. Briqpay may freely utilize data generated in the system log files to optimize and improve Briqpay’ Services.
Anonymized data. Briqpay shall have the right to anonymize any and all data used in the Services. The anonymization procedure shall be sufficient to ensure that no data can be converted back to personal data. Briqpay shall own the right and title to all such anonymized data without limitation in time and use for any purpose.
Personal Data Protection
Data protection. Customer shall ensure that the processing of personal data within the scope of using the Services is in conformity with applicable law.
Briqpay as a data processor. In conjunction with providing the Services, Briqpay will process personal data on Customer’s behalf as a data processor. Briqpay shall process personal data on Customer’s behalf in accordance with the GDPR, other applicable data protection legislation and the Data Processing Addendum (available as an attachment to the service agreement), unless Customer has provided Briqpay with other instructions.
SECTION VIII – WARRANTIES AND LIMITATION OF LIABILITY
Warranties and Limitation of Liability
Warranty. Except for what has been expressly set out in this Agreement regarding remediation of Errors and downtime, Briqpay grants no other warranties regarding the Services, including quality, correctness, performance use, use or suitability for certain use.
Limitation of liability. The Parties’ liability is limited as follows:
Neither Party shall be liable for consequential or indirect losses, such as lost profits, diminished production, costs of retaining another provider, costs of equipment and similar costs or losses.
In no event shall Briqpay’s total liability for any damages, direct or indirect, arising from or in connection with the Services or the Agreement exceed the fees paid by Customer for the Services during the previous six (6) month period.
Briqpay is not liable for Customer’s loss of data.
The limitation of liability in subclause (i–iii) above shall not apply in case of willful misconduct or gross negligence, or in case of violation breach of Intellectual Property Rights (clause 9) and Confidentiality (clause 10).
SECTION IX – FORCE MAJEURE
Except with respect to Customer’s payment obligations for Services rendered prior to the commencement of a force majeure event, notwithstanding any other provision of the Agreement, neither Party shall be liable to the other Party for any delay or failure in performance of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirement, civil or military authority, inability to secure materials or labour or any other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the force majeure ceases.
SECTION X – TERM AND TERMINATION
Term and termination
Term. The Agreement shall remain effective for the period specified in the Service Agreement.
Termination for convenience. Customer may terminate the Agreement to end the use of the Services in accordance with the notice period set out in the Service Agreement.
Termination for cause. Each Party has the right to terminate the Agreement with immediate effect:
if the other Party has committed a material breach and does not remedy the same no later than thirty (30) days from notification requiring the defaulting Party to remedy the same; or
the other Party suspends its payments, decides on, whether voluntary or involuntary, liquidation, applies to reorganize the company or bankruptcy (or if another part applies for the Party’s bankruptcy) or otherwise reasonably can be assumed to be insolvent.
Notice. Notice of termination must be sent to the other Party in writing to the email address provided in the Service Agreement.
Effects of termination
Cease use of Services. Upon termination of the Agreement, Customer shall immediately cease all use of the Services. All unpaid fees for Services performed by Briqpay until the date of termination shall be payable, irrespective of the cause of termination. Briqpay shall invoice Customer for all unpaid fees within ten (10) business days from termination.
SECTION XI – MISCELLANEOUS
Notices. Any notice and other communication to be given by a Party under the Agreement shall be in the Swedish or English language and deemed to be valid and effective if personally served on the other Party or sent by registered prepaid airmail or e-mail to the addresses given in the recitals or latest provided by the other Party.
A notice shall be deemed to have been given:
in the case of personal service: at the time of service;
in the case of prepaid registered mail: at the latest three (3) days after the date of mailing; or
in the case of e-mail: on the date the e-mail is sent, provided receipt is duly confirmed by the other Party.
Changes of address are to be notified as set out in this provision.
Waiver. No consent or waiver, express or implied, by either Party of any breach or default of the other Party in performing its obligations under the Agreement shall be deemed or construed to be a consent or waiver of any other breach or default by the other Party of the same or any other obligation hereunder. No waiver of any rights under the Agreement shall be effective unless in writing and signed by the waiving Party.
Changes. Briqpay may make changes to these General Terms and Conditions from time to time, Customer will be informed by Briqpay if changes are made. The changes will become effective thirty (30) days after Briqpay provides Customer a written notice over email or by posting notice at the Backoffice. If Customer has not objected to the changes prior to them becoming effective, Customer is deemed to have accepted the changes. If Customer objects to the changes, these terms shall apply until the end of Customer’s current Subscription Period, whereafter Customer may terminate the Agreement. Objections shall be made by written notice to Briqpay.
Entire agreement. The contents of the Agreement and its appendices shall supersede all previous written or oral commitments and undertakings.
Assignment of the Agreement. Neither Party may wholly or partly assign or pledge its rights and/or obligations under the Agreement to any third party without the prior written approval of the other Party.
Severability. If any provision of the Agreement or part thereof is held invalid, this shall not affect the remaining provisions of the Agreement, unless the obligations of a Party hereto without the invalid part of the Agreement are or will become unreasonably onerous.
Governing Law and Disputes
The Agreement shall be governed by the substantive law of Sweden. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm. The arbitration proceedings shall be conducted in English.