1. Introduction

    1. This Agreement is entered into on the Effective Date by and between Keeparo AB (formerly KSMG Media Group AB), reg.no 556813-4059, Grev Turegatan 11A, 114 46 Stockholm, Sweden (“Keeparo”) and the customer identified on the Order (“Customer”); each a “Party” and together the “Parties”.

  2. Agreement structure

    1. This Agreement is an as-ordered agreement; thus, no obligations shall arise between the Parties, unless a specific Order has been agreed upon and duly executed by both Parties.
    2. This Agreement, as amended from time to time, contains the terms and conditions upon which the Order is based and therefore these terms and conditions are incorporated into each Order.
    3. In case of conflict between the different Agreement documents, these terms and conditions shall prevail over all other Agreement documents and then the other Agreement documents shall prevail in the order of precedence specified in the Order and last the relevant Order.

  3. Definitions

    1. “Agreement” means these terms and conditions, any Specific Terms (if applicable), any DPA (if applicable), the Order(s) and any other agreement document specified in the Order.
    2. “Agreement Term” means as defined in Section 14.1.
    3. “Customer Data” means any data, information or Material owned by Customer and disclosed to Keeparo in connection with Services.
    4. “Data Processing Agreement” or “DPA” means a data processing agreement between Keeparo and Customer regarding processing of personal data in connection with Services.
    5. “Effective Date” means the date when this Agreement is duly executed by both Parties, as specified in the first Order executed between the Parties.
    6. “Keeparo Materials” means (A) Materials owned by Keeparo (or its licensors) that have been made, conceived, developed, created by or for Keeparo (or its licensors) prior to the Effective Date and/or independently from the provision of Services under this Agreement, and (B) Training Materials.
    7. “Materials” means information, know-how, data and other technology, databases, compilations, inventions, developments, software, documentation, technical information, specifications, configuration, designs, plans, drawings, writings, photographs, video, schematics, documents, reports, methods, procedures, concepts, techniques, protocols, systems, elements, components, and any other intellectual property rights.
    8. “Order” means an order form or similar binding document evidencing ordered Services, specifications, applicable fees, billing period, and other commercial details as agreed to between the Parties. Each Order is incorporated by reference into and made part of this Agreement.
    9. “Results” means the results created specifically for Customer and as expressly specified in the Order, such as EVP, customer report, communication plan, ‘concept and content’, interview results, photographs, and videos.
    10. “Services” means the services provided by Keeparo to Customer under this Agreement and as further specified in each Order.
    11. “Specific Terms” means any specific terms and conditions applicable to Software and/or Services as specified in the Order, where such specific terms shall apply in addition to these terms and conditions (if applicable). 
    12. “Software” means any software ordered in an Order and provided by Keeparo to Customer under Specific Terms (if applicable).
    13. “Training Materials” means any Material provided by Keeparo to Customer in connection with training Services or otherwise for educational purposes, as further specified in the Order.

  4. Services and delivery

    1. All Services to be provided under this Agreement shall be specified in an Order. The procedure for placing Orders shall be agreed between the Parties in writing.
    2. Keeparo is responsible for the management, planning of details and the performance of Services.
    3. Keeparo shall use the personnel as deemed suited by Keeparo for the performance of Services and may freely replace such personnel, unless otherwise agreed in writing between the Parties.
    4. The Parties shall agree upon the time schedule for the provision of Services. A Party shall immediately notify the other Party as soon as it becomes aware of a circumstance, which may materially affect the time schedule.
    5. Services may be modified during the Agreement Term by mutual agreement in writing between the Parties, in which case the relevant Order shall be adjusted to the extent required to reflect the nature, scope, and commercial impact of such modification.

  5. Customer obligations

    1. For Keeparo to be able to supply Services to Customer, Customer shall in full comply with the obligations stated in this Agreement. 
    2. Customer acknowledges and agrees that Keeparo’s ability to perform Services may be affected if Customer fails to fulfil its obligations set out in this Agreement.
    3. Customer shall, at its own expense, provide Keeparo with: 
      a) all data and information required to carry out Services;
      b) access to Customer’s premises, employees and such equipment required to carry out Services; and
      c) personnel, if required, to the extent stated in the Order.
    4. Customer shall actively contribute to Services in order to ascertain the due and proper execution of Services. Customer shall in connection therewith make timely examination and assessment of Results, and other deliverables, and reports provided by Keeparo.

  6. Fees, charges and payment terms

    1. Customer shall pay all fees and charges to Keeparo in accordance with the relevant Order. The currency will be SEK, unless otherwise agreed in the relevant Order.
    2. All invoices under this Agreement are due with thirty (30) days net payment term, unless otherwise agreed in the relevant Order. 
    3. All payment obligations are non-cancellable, and all amounts paid are non-refundable. Keeparo is not liable to refund to Customer any prepaid and unused fees in connection with the termination or expiry of this Agreement or upon the expiry of any subscription period. 
    4. Customer must use any ordered and prepaid Services within one (1) year from the Order date of Services. Should Customer not use Services within that time, Services will lapse. The foregoing shall not apply to any subscription-based Services or if otherwise agreed between the Parties.  
    5. Customer shall ensure that Keeparo, at any given time, has valid billing information to Customer.
    6. Keeparo’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Keeparo’s income. If Customer is required to withhold a certain amount (withholding tax), Customer shall gross up the invoiced amount to keep Keeparo harmless, unless otherwise agreed in the Order.
    7. One calendar year after the Effective Date, Keeparo may annually increase the applicable fees for the Services (as specified in the Order). Fee adjustments shall be reasonable taking into account changes in the Labour Cost Index (LCI) for the relevant industry from Statistics Sweden, market fluctuations, currency variations and/or general increase in costs caused by external factors.
    8. If Customer considers that an invoice is incorrect, Customer must notify Keeparo in writing within fifteen (15) days of the invoice date of the contested invoice to be eligible to receive an adjustment or credit.

  7. Anti-corruption and anti-bribery

    1. Each Party will not make any payments, gifts or offers, directly or indirectly, to any individual or company in order to secure an unfair business advantage. Each Party also undertake that they will not make any payments, gifts or offers, directly or indirectly, to any government agent or official, political candidate or political party or make any other political contributions. Each Party agrees that providing any gifts or gratuities under this Agreement is prohibited.
    2. Both Parties agree to fully cooperate with any inquiries or other investigations related to anti-corruption and anti-bribery.

  8. Customer Data and Data Protection

    1. Each Party will not make any payments, gifts or offers, directly or indirectly, to any individual or company in order to secure an unfair business advantage. Each Party also undertake that they will not make any payments, gifts or offers, directly or indirectly, to any government agent or official, political candidate or political party or make any other political contributions. Each Party agrees that providing any gifts or gratuities under this Agreement is prohibited.
    2. Both Parties agree to fully cooperate with any inquiries or other investigations related to anti-corruption and anti-bribery.

  9. Sub-contractors

    1. Keeparo may use sub-contractors in connection with the Services. Keeparo shall, upon Customer’s request, provide information of used sub-contractors. 
    2. Keeparo is responsible for work performed by sub-contractors and is entitled to compensation therefore as though the work had been performed by Keeparo. 
    3. Keeparo shall not engage any sub-contractors who are not qualified to carry out the sub-contract works.

  10. Intellectual Property Rights

    1. Except as expressly stated in this Section 10, nothing in this Agreement, or otherwise between the Parties, shall be construed as transferring or assigning any ownership or title to or in any Material or other intellectual property rights. Any transfers or assignments of ownership to Keeparo Materials and/or Software in an Order, or otherwise between the Parties, shall be null and void.
    2. Subject to Section 10.3, Keeparo hereby irrevocably assigns all right, title and interest, including intellectual property and ownership rights, in the Results to Customer. This assignment includes, but is not limited to, the right to process and make changes in the Results and to license, assign and transfer the rights to any third party.
    3. Notwithstanding the above, Keeparo Materials in any Results will remain vested in Keeparo (or the third-party owner). To the extent that Keeparo Materials are embedded in or part of any Results resulting from Services, Keeparo grants, or undertakes to procure that the third-party owner grants, Customer a worldwide, irrevocable, transferable, sub-licensable, non-exclusive, royalty-free license to use the Keeparo Materials as part of such Results for its internal business purposes.
    4. Customer hereby grants to Keeparo a royalty-free, perpetual, non-exclusive license to analyze and use any anonymous Customer Data on aggregate level (i.e. excluding any Personal Data) for the purposes of customer cases, sector or industry studies, benchmarking and product development. For the avoidance of doubt, Keeparo may not disclose – directly or indirectly – to any third party that data used for the mentioned purposes originate from Customer or otherwise disclose any Confidential Information of Customer unless stated in this Agreement. 

  11. Representations and warranties and disclaimer

    1. Each Party represents and warrants that it has the legal power and authority to enter into and perform this Agreement, and the person(s) signing this Agreement on its behalf has been properly authorized and empowered to enter into this Agreement.
    2. Keeparo represents and warrants that it will provide Services in all material respect in accordance with the Agreement and in a manner consistent with general industry standards.
    3. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS SECTION 11, KEEPARO MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF RESULTS AND/OR SERVICES. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY KEEPARO.

  12. Limitation of liability

    1. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THE RELEVANT ORDER FROM WHICH THE CLAIM CAN BE REFERRED. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, SERVICES, INCLUDING THE USE OR THE INABILITY TO USE THE RESULTS, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
    2. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH HEREIN WILL NOT APPLY IN CASE OF (I) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (II) DEATH OR PERSONAL INJURY; OR (III) OR BREACH OF CONFIDENTIALITY (SECTION 13).

  13. Confidentiality

    1. The Parties recognize that they will have access to confidential information and/or trade secrets of the other Party.  Accordingly, the Parties agree that (a) Customer Data, (b) any information arising out of Services to Customer, and (c) the provisions of this Agreement, and (d) all other non-public information relating to the foregoing (collectively, the “Confidential Information”) shall be treated by the Parties on a confidential basis and shall not be reproduced, reduced to writing or disclosed to any employees of the Parties (except on a need to know basis and then only if the employee is subject to an obligation of confidentiality) or any other person or entity without the prior written consent of the disclosing Party.
    2. The prohibitions contained in this Section 13 shall not apply to information that is: (a) available to the public other than by a breach of this Agreement, (b) rightfully received from a third party not in breach of an obligation of confidentiality, (c) independently developed by the receiving Party without access to Confidential Information as evidenced by receiving Party’s written records, (d) known to the receiving Party prior to the time of disclosure as evidenced by receiving Party’s pre-disclosure written records, or (e) disclosed in compliance with applicable law or a court order, provided the disclosing Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such disclosure. Upon termination of this Agreement, at the reasonable request of the disclosing Party, any documentation or data reflecting any Confidential Information shall be promptly returned to the disclosing Party or destroyed, unless otherwise agreed between the Parties.

  14. Term and Termination

    1. Unless otherwise agreed in an Order, this Agreement shall be in effect from the Effective Date and will terminate one (1) year after the Effective Date (the “Agreement Term”). Notwithstanding anything to the contrary, the Agreement Term shall not expire or be terminated as long as there is an Order in effect under this Agreement.
    2. If a Party does not notify the other Party of its intent to terminate this Agreement (in whole or in part) sixty (60) days prior to the end of the Agreement Term, the Agreement Term shall continue on a year-to-year basis until terminated (in whole or in part) by either Party upon at least sixty (60) calendar days prior written notice to the other before the end of the then current term. A notice of termination must be made in writing to be valid.
    3. Either Party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (b) 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 and any such petition is not dismissed within 90 days. Non-payment of due invoices, not disputed in good faith, sixty (60) days after due shall constitute a material breach of this Agreement.
    4. The rights and obligations of the Parties which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes shall survive any termination or expiration of this Agreement.

  15. Force majeure

    1. Neither Party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, recall of permits, sanctions and other restrictive measures, civil or military authority, pandemic, epidemic, act of God, act or omission of carriers, or other similar causes beyond its control. If any such an event of force majeure occurs and such event continues for ninety (90) days or more, or is expected to continue for more than ninety (90) days, each Party may elect to terminate this Agreement without any liability towards the other Party.

  16. Non-solicitation

    1. During the Agreement Term and for a period of one (1) year thereafter, Customer shall not actively solicit any Keeparo employee to leave his/her employee with Keeparo.
    2. Notwithstanding the foregoing, Customer shall not be prevented from hiring any such individual who (a) responds to a public advertisement placed by Customer not specifically directed at such individual, (b) has terminated employment with Keeparo, prior to commencement of solicitation of such employee, or (c) contacts Customer directly on his/her own sole initiative, without any direct or indirect solicitation or inducement by Customer.

  17. General

    1. If Customer specific purchase orders are required for Customer’s internal business purposes, Customer shall issue such purchase order to Keeparo at least one (1) month before the commencement of each new billing period.
    2. Customer acknowledges and agrees that any text, information or pre-printed terms and conditions on any purchase order or other documentation provided to Keeparo shall not be effective, incorporated into nor construed to modify, amend, or alter the terms of this Agreement. 
    3. This Agreement may not be assigned by either Party without the prior written approval of the other Party (such consent not to be unreasonably withheld) but may be assigned without the other Party’s consent by the assigning Party to (a) a parent or subsidiary, (b) an acquirer of substantially all assets, or (c) a successor by merger. Any purported assignment in violation of this Section shall be void.
    4. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
    5. All notices required or permitted under this Agreement shall be given in writing to a Party’s address follows,

      Customer: Address and notice details specified in the Order
      Keeparo: to Keeparo AB, 556813-4059, Grev Turegatan 11A, 114 46 Stockholm, Sweden, with email address as specified in the Order, or to such other addresses as the Parties may substitute by written notice. Notices shall be given in the manner prescribed in this Section as follows: (a) by registered or certified mail; (b) over-night express courier; (c) by hand delivery; or (d) by email to such addressees.  Such notices shall be deemed to have been duly received upon recipient’s receipt and, in case of email, upon recipient’s confirmation of receipt.
    6. No joint venture, partnership, employment, or agency relationship exists between Customer and Keeparo as a result of this Agreement or use of Services.
    7. Notwithstanding anything to the contrary, Keeparo is allowed to identify Customer as its customer, using Customer’s name, logos, and other trademarks, to refer to the relationship between the Parties and to Services retained by Customer on (i) Keeparo’s website, (ii) as reference customer, and (iii) in other marketing material.
    8. The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing.
    9. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties relating to the subject matter hereof and supersedes all previous communications, representations and arrangements, written or oral, relating to such subject matter. Customer acknowledges that it has placed no reliance on any representation made but not embodied in this Agreement. 
    10. No amendments of any provision of this Agreement shall be valid unless made by an instrument in writing signed by duly authorized representatives of both Parties.

  18. Applicable law and dispute resolution

    1. This Agreement shall be governed by the substantive laws of Sweden, without regard to the choice or conflicts of law provisions of any jurisdiction.
    2. 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 “SCC”), and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the SCC.
    3. 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.
    4. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.