Terms & Conditions
This Software-as-a-Service Agreement is made between (i) the Supplier (as defined below) and (ii) the Client (as defined below), whereas:
- The Supplier has developed, owns and offers certain software as a service for financial institutions. As part of such software the Supplier may also provide certain data licensed from third parties.
- The Supplier agrees to grant the Client a non-exclusive limited right to access and use certain software as a service on the terms and conditions of this Agreement (as defined below).
In this Agreement, the following definitions are used:
“Agreement” means collectively the Order Form and this main agreement, including all the appendices attached to it as well as any supplementary agreements entered into under the Agreement; as of the date hereof, this Agreement is comprised of the following documents which shall take precedence in the order set out below (highest priority above):
(a) the Order Form;
(b) this main agreement;
(c) Appendix 1 – Support Services; and
(d) Appendix 2 – Data Processing Addendum.
“Authorised employee” means any employee of Client who has been authorised to access and use the Service.
“Activation Date” means the date the Service first shall become active as set out in the Order Form. The commencement of the Initial Period will be determined based on this date.
“Client” means the client of the Supplier which have signed an Order Form that incorporates this Software-as-a-Service Agreement.
“Fees” means the fees payable by Client under this Agreement pursuant to Section 6 and as specified in the Order Form.
“Force Majeure” means a circumstance beyond a Party’s control as further specified in Section 12.1.
“GDPR” means any legislation, rules or regulations, including decisions from authorities (“Laws”), concerning data protection, applicable at any time during the Term.
“Initial Period” means a period of thirty-six (36) months from the Activation Date.
“Intellectual Property Rights” means all of the following anywhere in the world and all legal, right title or interests in the following arising under Law: (a) patents and applications for patents and all related reissues, re-examinations, divisionals, renewals, continuations and continuations in part; (b) works qualifying for protection under a country’s applicable copyright acts; (c) copyright registrations and applications, copyrightable works and other corresponding rights; (d) trade dress and trade names, logos, internet addresses and domain names, trademarks and service marks and related registrations and applications, including any intent to use applications, supplemental registrations and any renewals or extensions, all other indicia of commercial source or origin and all goodwill association with any of the foregoing; (e) inventions (whether patentable or un-patentable and whether or not reduced to practice), know-how, technology, technical information, manufacturing and production processes and techniques, marketing and business data, advertising and promotional materials, customer, supplier lists and information, and other proprietary information; (f) computer software (including source and object code) firmware, development tools, algorithms, files, records, technical drawings and related documentation, data and manuals; and (g) data bases and data collections.
“Order Form” means an ordering document or online purchasing form supplied by the Supplier for purposes of purchasing Services.
“Parties” means the Supplier and the Client collectively and “Party” means either of the Supplier and the Client.
“Personal Data” means any information relating to an identified or identifiable natural person, whereupon an identifiable natural person is a person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data or online identifiers, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
“Renewable Period” means the period for which this Agreement may be automatically renewed.
“Service(s)” means the provision of the services opted for by the Client in the Order Form via an electronic communication network whereas the applicable description of the Services can be found online at https://www.limina.com/documentation-product-description.
“Service Fee” means the price for the Service in accordance with the Order Form.
“Software” means the software made available by the Supplier as part of the Services including, if applicable, any Updates (defined below).
“Supplier” means Limina AB, a limited liability company incorporated under the laws of Sweden with reg. no. 556982-5713, and registered address at Regeringsgatan 82, Stockholm, Sweden
“Support Services” means the services provided by the Supplier in accordance with Appendix 1.
“Termination Notice Period” means the minimum notice period that shall be applied in relation to termination of the Agreement without cause in accordance with Section 10.1.
“Update” means a change in the Software which includes error corrections, new or modified functions or improvements to the existing features of the Software as of the Supplier may determine from time to time to release in the course of the Supplier’s normal development and maintenance.
“User” means a named user (employee or consultant) of the Client that has been approved in advance by the Supplier and with whom the Client has signed confidentiality and security agreement to fulfil the Client’s requirements in Section 3.3 and 11.
2. PROVISION OF THE SERVICE
2.1 The Supplier will operate the Software on servers located at the facility selected by Supplier and will provide the Client with access to the Service through a user account and at the connection point specified by the Supplier.
2.2 The Supplier will not provide customisation of the Service.
2.3 The Supplier may use sub-contractors to provide the Services under this Agreement. The Supplier is responsible and liable for sub-contractors’ acts or omissions, as had they been carried out (or omitted) by the Supplier itself.
2.4 The Supplier is responsible and liable for providing the Services in accordance with Law as applicable to the Supplier’s provision of the Services (i.e. without regard for a Client’s particular use of the Services). In the event of changes in applicable Law, requiring changes to the Services, the Supplier as well as the Client, shall use reasonable commercial endeavours to adapt the Services within a reasonable time to such Laws.
2.5 The Supplier may from time to time provide documentation relevant for Clients for use of the Services (“Documentation”).
2.6 Maximum total data storage on behalf of the Client under the Service is 10 GB. Unless otherwise agreed in writing, backup is performed on a daily basis, i.e. not more than once every twenty-four hours.
2.7 Any Personal Data provided to the Supplier as part of the Services shall be processed in accordance with Appendix 2.
3. ACCESS AND USE OF THE SERVICE
3.1 Subject to the terms and conditions of this Agreement, the Supplier grants to the Client, a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service during the Term (defined below), solely for Client’s own internal business purposes and for the number of Users for which the Client has paid the Fees. For the sake of clarity, the right to access and use the Service will be limited by restrictions set forth in the Order Form.
3.2 The Supplier reserves the right to at any point change the Service, its name, the name of the modules and its description(s). New functionality developed by the Supplier may be part of existing modules or be part of new modules, in the sole and absolute discretion of the Supplier in every case. The Supplier may choose to deprecate and eventually remove functionality, which will not affect commercial terms under this Agreement. If such a change is deemed to have a material impact on the Client’s use of the Service, the Client shall have the right to terminate the Agreement provided it does so within three (3) months from such change.
3.3 The scope and functionality of the modules may be limited if the Client does not have access to adequate market data and/or other integrations. If the Supplier chooses to move existing functionality to a new module and at the same time remove that functionality from a module purchased by the Client, the Client has the right to use such new module under this Agreement at no extra cost.
3.4 The Client shall provide access to the Service only to its Authorised Users. The Client shall take all reasonable steps to protect the Service from unauthorised access, copying and use. The Client shall not permit any third party, other than the Users, to access and use the Service or itself use the Service on behalf of or for the benefit of any third party by way of trade or otherwise (including, without limitation, to provide a data processing or database bureau service) and the Client shall not assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Service. The Client are not permitted to download or export any data that has been provided by the Supplier in the Software and/or the Service.
3.5 The Client agrees to keep login details to the User’s user account secure and not disclose such login details to any third party, save that such details may be shared with the Client’s Authorised employees. The Client has full responsibility for oversight and all activities on Client’s user account undertaken with User’s login details.
3.6 The Supplier may automatically collect and retain certain data (pursuant to GDPR) about the Client’s use of the Services. Such data may be used for statistical purposes and in order to improve the Services. The Supplier may also disclose and share such data with third parties to assist them in understanding and analysing the usage patterns for certain data, content, services and/or functionality of the Service.
3.7 The Client shall promptly notify the Supplier if the Client becomes aware of any unauthorised access or use of the Service and shall cooperate and provide reasonable assistance to the Supplier in connection with any investigation and efforts to cease any such unauthorised access or use.
3.8 The Client is responsible for the network connectivity and for all software and hardware required for the Client’s access and use of the Service.
3.9 The Client is responsible to fulfil the contractual terms and conditions for the Client’s access and use of the Services with market data available through Client’s contract(s) with one or more third party market data vendors (“Market Data Vendor’s Third Party Market Data”, and collectively, “Market Data Vendors”). The Client shall comply with the market data terms and conditions set out at https:/limina.com/market-data-terms-and-conditions.
3.10 The Client is responsible to fulfil the technical requirements for usage of the Service. The at each time valid technical requirements set out at https://limina.com/system-requirements.
3.11 The Client shall follow all reasonable instructions given from time to time by the Supplier with regard to the access and use of the Service.
4. INTELLECTUAL PROPERTY RIGHTS
Notwithstanding anything in this Agreement to the contrary, the Supplier has and shall retain, sole and exclusive title, ownership rights and intellectual property rights, and other rights and interests in and to the Service and the Software, in the content thereof, and in any and all copies, modifications, alterations and enhancements to the Software, including any derivative works resulting therefrom, and all Documentation that the Client is provided or accessed. In no event shall the Client possess or control the Software or any related software code and the Client acquires no title, ownership right or Intellectual Property Rights, or other rights of any kind in the Service, the Software or any copies thereof, or any documentation with respect to the foregoing.
5. UPDATE AND SUPPORT
5.1 The Supplier may from time to time and without notice to the Client deploy and implement Updates to the Service or the Software. If the Supplier has reason to believe that Updates may affect the Client’s use of the Services, the Supplier will, if reasonably possible, give prior written notice to the Client that describe the changes to be made.
5.2 The Supplier may provide Support Services to the Client. The Supplier may upon request and at its discretion provide further assistance in relation to the Client’s use of the Service on a time and material basis and in accordance with the Supplier’s rate of fees in effect from time to time pursuant to a separate, mutually agreed written agreement.
5.3 The Supplier may at any time without liability and on notice, if reasonably possible, terminate the Client’s access to the Service if this is reasonably required for technical, operational, maintenance or security reasons.
6. PRICE AND PAYMENT
6.1 The Client shall timely pay the Fees to the Supplier. All Fees are, except as otherwise provided herein, non-refundable.
6.2 The Fees shall be paid annually in advance as specified in the Order Form. The Supplier reserves the right to adjust the Fees in case of a material change of business or investment strategy of the Client, including but not limited to large changes in AuM or trade volumes. In addition, the Fees shall during the Term be subject to annual indexation as set out in Section 6.6 below.
6.3 All Fees shall be paid in good funds to an account advised by the Supplier to the Client.
6.4 All payments under the Agreement shall be due within twenty (20) days of receipt of invoice. Without prejudice to its other rights and remedies, the Supplier shall have the right to charge interest on all unpaid amounts from the day the payment is due until the day full and final payment is made at the lesser of (a) a rate of two percent (2%) per month, and (b) the highest interest rate allowed by Law. The Client has no right to use the Service if and for as long as the Client has not fully and timely paid all Fees due to the Supplier.
6.5 Unless otherwise is set out herein, all Fees are stated exclusive of VAT. The Parties have concluded that the provision of the Services under the Agreement is subject to VAT and that the Client thus shall pay VAT on the Fees. Should, however, the provision of the Services (partly or wholly) be found to be not subject to VAT, the Fees shall be proportionally increased so that the gross amount received by the Supplier for the Services remains the same.
6.6 The Fees shall increase as from each anniversary of the Activation Date by a percentage corresponding to three (3) percent above the increase in percent of the Consumer Prices Index (CPI) published by the Office for National Statistics or its successor from time to time for the relevant contract year (or the nearest publication dates to the commencement and expiry dates of the relevant contract year, spanning a 12-month period).
7.1 The Supplier warrants that the Service will substantially operate according to the technical specification provided by the Supplier during the Term, based on the latest software version provided by the Supplier and subject to any subsequent amendments made to the technical specification by the Supplier. This warranty shall only be applicable to the extent that the Service is used in conformity with such technical specification and this Agreement. The Supplier does not warrant that the Service will meet Client’s requirements or expectation or that the operation of the Service will be uninterrupted and error free. The Client is solely responsible for the selection of the Service to achieve its intended results, for the results actually obtained, and for the selection and maintenance of its equipment and devices to access and use the Service.
7.2 In the event that the Client discovers an error in the Service, the Client shall promptly provide the Supplier with as clear and sufficient information as possible regarding the nature of the error and the conditions of its occurrence. The Client shall promptly provide the Supplier with a written report concerning this matter or reproduce the error, if the Supplier makes such a request. The Client shall cooperate with the Supplier and provide the Supplier with reasonable and relevant assistance to enable the Supplier to diagnose the error and to correct it or reduce its effects. If the Supplier is unable to correct a material error within a reasonable time, the Client is entitled to terminate the Agreement and receive a refund of any prepaid Fees for any period after such termination on a pro rata basis. This shall be the Client’s sole and exclusive right and remedy, and the Supplier's exclusive liability, in relation to errors and failure to correct errors in the Service.
7.3 The Parties have agreed on Service Levels for the Service in Appendix 1 and in the event of deviation therefrom, the Client’s sole right and remedy, and the Supplier's exclusive liability in relation thereto, shall be as set forth in Appendix 1.
7.4 Each Party shall endeavour that processing of personal data takes place in accordance with applicable Law. Where the Supplier processes personal data on behalf of the Client, the Supplier shall be regarded as the processor of personal data in accordance with the personal data processing agreement entered into between the Parties. The Supplier shall process personal data in accordance with the personal data processor agreement and applicable Law. The Supplier may not retain any sub-contractor to process the Client’s personal data without the Client’s prior written consent.
7.5 The Supplier shall have no responsibility for, and the foregoing warranties and remedies shall be void with respect to, errors or other problems with the Service or Software caused by or derived from (i) alterations or modifications of the Service not performed by or on behalf of Supplier; (ii) third party software or hardware; or (iii) a combination of the Service with any program, equipment or device not supplied by the Supplier under this Agreement.
7.6 Except as set forth in this Section 7, the Supplier disclaims all other warranties, express or implied including, but not limited to, warranties of merchantability and fitness for a particular purpose. The Supplier shall have no liability or responsibility whatsoever with respect to third party software or hardware not part of the Supplier’s delivery.
7.7 The Supplier shall not be responsible for breach of the Agreement to the extent the breach is caused by the Client’s delay or failure to meet its obligations according to this Agreement (or a third party for which the Client is responsible) or actions or omissions of third parties that are outside the control of the Supplier.
8. LIMITATION OF LIABILITY
8.1 The remedies provided in Section 7 above are the Client’s sole and exclusive remedies. The Supplier’s liability under, arising from or related to this Agreement shall in no event exceed twenty percent (20%) of the Fees actually paid by Client to the Supplier hereunder during the twelve (12) months immediately preceding a claim. The Supplier shall in no event be liable to the Client for any indirect, incidental, special or consequential damage including, without limitation, loss of data, loss of business opportunity, loss of revenues, loss of profit, or loss of savings, or third party claims against the Client arising out of or in connection with the access or use of the Service, even if the Supplier has been advised of the possibility of such damages.
8.2 No claims under this Agreement may be brought by the Client more than six (6) months after the cause of the claim has arisen.
9. AUDIT RIGHTS
9.1 The Supplier has the right to, with seven (7) days prior written notice, to carry out an audit of the Client’s use of the Service and Software including without limitation at the Client’s business premises in order to determine and verify that the Client is in compliance with the provisions of this Agreement. The audit shall be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose. The Client shall cooperate and provide all reasonable assistance in connection with such audit.
9.2 The Client shall be liable for promptly remedying any underpayments revealed during the audit. If the audit concludes that the Client has exceeded the usage limits under this Agreement, the Client shall promptly pay for additional users who accessed or used the Service on a pro rata basis and shall pay for the costs of the audit.
10. TERM AND TERMINATION
10.1 This Agreement enters into force on the Activation Date and shall remain in force for the Initial Period. This Agreement shall be automatically renewed for consecutive periods of a Renewable Period of the same length as the Initial Period, unless and until terminated by either Party within a Termination Notice Period of not less than three (3) months, by written notice given prior to the renewal date of the Agreement, in which case the Agreement shall be terminated at the end of the Initial Period or then then current Renewable Period, as applicable. The Initial Period together with each Renewable Period are herein referred to as the “Term”.
10.2 In the event of a failure by either Party to comply with any material obligation under this Agreement, and such non-compliance remains uncured for more than thirty (30) days after receipt of written notice thereof, the non-defaulting Party may, in addition to any other rights available to it, terminate this Agreement and the rights granted hereunder immediately upon written notice to the defaulting Party.
10.3 The Supplier may terminate this Agreement immediately upon written notice to the Client, if the Client ceases or threatens to cease to carry on its business, becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy, insolvency or similar Law , whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs, the Client shall immediately notify the Supplier of its occurrence.
10.4 Upon termination of this Agreement for whatever reason, the Client shall immediately discontinue all use of the Service and return all Documentation to the Supplier.
10.5 Upon termination of this Agreement, the Supplier shall, within a period of maximum three (3) business days make available data belonging to the Client, for which a request has been received in writing, in a machine or human readable format chosen by the Supplier.
10.6 Upon termination of this Agreement, any assistance with transferring data from the Service to the Client or any third-party platform is not included in these terms, and requires a separate service agreement. This clause does not limit the Client’s right to data exports according to Section 10.6.
10.7 Termination of this Agreement shall not relieve the Client of its obligations to pay all Fees that have accrued or otherwise are owed by the Client under this Agreement.
10.8 Upon termination of this Agreement, Sections 3.6, 4, 8, 10.5, 10.6, 10.7, 10.8, 11, 12, and 13-17, together with any other provision of this Agreement which expressly or by implication is intended to come into or remain in force on or after termination, shall remain in full force and effect.
11.1 The Client is aware of and acknowledges that the Service and the Software contains proprietary and confidential information, including, but not limited, to the ideas, methods of operation, processes, know-how, sub-systems and modules included in the Software, the graphical user interfaces for the Software and the look and feel of the Software, all of which embody certain exceptionally valuable trade secrets of the Supplier or third party related thereto. Such proprietary and confidential information shall be held and maintained by the Client in confidence for the exclusive benefit of the Supplier.
11.2 Each Party undertakes to keep confidential and not to use or disclose any information (including, but not limited to, any technical or financial information, trade secrets and Client lists) which it may from time to time receive or obtain (orally, in writing, or in electronic form) as a result of negotiating, entering into or performing its obligations pursuant to this Agreement or otherwise, relating to the other Party unless (i) required to do so by Law or pursuant to any order of court or other competent authority or tribunal or (ii) the information is disclosed to its professional advisers who are bound to such Party by a duty of confidence which applies to any information disclosed. If a Party is required, in circumstances contemplated by (i) to disclose any information, the disclosing Party shall use its reasonable endeavours to consult with the other Party prior to any such disclosure.
11.3 This Agreement imposes no confidentiality obligation upon the Parties with respect to information which: (i) was generally available in the relevant industry at the time of disclosure without a breach of confidentiality; (ii) becomes generally available in the relevant industry without a breach of confidentiality by a Party or a third party; (iii) was disclosed to a Party by a third party without restriction on disclosure, provided that the third party has not received the information directly or indirectly from the other Party; or (iv) was developed by a Party independently of any information disclosed by the other Party as evidenced by the written records of a Party.
11.4 The obligations of the Client and the Supplier under this Agreement as to disclosure and confidentiality shall come into effect on the signing of this Agreement and shall continue in force notwithstanding the termination of this Agreement and shall bind both the Client’s and the Supplier’s successors and assigns.
11.5 The Client is responsible for User’s fulfilment of confidentiality obligations as well as security requirements under this Agreement.
12. FORCE MAJEURE
12.1 Notwithstanding anything in this Agreement to the contrary, each Party shall be relieved from liability for a failure to perform any of its obligations under this Agreement, except for non-payment by the Client of any Fees pursuant to this Agreement, during such period and to the extent that the due performance is prevented by reason of any circumstance beyond the immediate control of such Party including, but not limited to, war, civil war, government restrictions, fire, hurricane, flood, strike, lock-out, embargoes, hacking, denial of service attacks, delay or interruption of communications or non-performance or late or insufficient performance by, or errors or mistakes due to or caused by, telecommunication, hosting and internet service providers and external networks, or other circumstances of similar importance (“Force Majeure”).
12.2 A Party wishing to invoke an event of Force Majeure shall give prompt notice to the other Party of the commencement and the cessation of such event of Force Majeure. Failing this, such Party shall not be discharged from its obligations to perform caused by an event of Force Majeure. Both Parties shall use reasonable commercial endeavours to prevent and reduce the effect of any non-performance of this Agreement caused by an event of Force Majeure.
12.3 Where a Party does not perform its obligations pursuant to Section 12.1, the corresponding obligations of the other Party, shall be suspended to the same extent.
12.4 If a Party is prevented from performing its obligations under this Agreement due to an event of Force Majeure for a continuous period of more than three (3) months, either Party shall be entitled to terminate this Agreement with immediate effect on service of written notice on the other Party. Neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of an event of Force Majeure, except that rights and liabilities which accrued prior to such termination shall continue to subsist.
If any provision of this Agreement or the application of it shall be declared or deemed void, invalid or unenforceable in whole or in part for any reason, the remaining provisions of this Agreement shall continue in full force and effect. The Parties shall seek to amend such void, invalid or unenforceable provisions and thereby this Agreement in order to give effect to, so far as is possible, the spirit of this Agreement and to achieve the purposes intended by the Parties.
This Agreement shall be binding upon and inure to the benefit of the successors of the Parties. Except as provided in this Agreement, neither Party may assign, transfer, sub-contract or otherwise dispose of any of its rights and obligations under this Agreement without the prior written consent of the other Party in its sole and absolute discretion, except that the Supplier may, however, without prior consent, assign its rights under this Agreement to a legal entity directly or indirectly controlling, controlled by or under common control with the Supplier. Any such attempted assignment, transfer, or sub-contract or other such disposition shall be void and of no force and effect.
15.1 The Supplier shall be entitled to use the Client as a reference for current and potential Clients, and in the Supplier’s promotional materials.
15.2 This Agreement may only be amended by a mutually agreed instrument in writing duly executed by the Parties.
15.3 In no event shall any delay, failure or omission of a Party in enforcing, exercising or pursuing any right, claim or remedy under this Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing. No waiver in any instance shall be deemed a waiver in any other or subsequent instance.
15.4 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous proposal, understanding or agreement between the Parties involving or relating to the subject matter of this Agreement.
16.1 Any notice or other communication given in connection with this Agreement shall be in writing and may be given in any manner permitted by Law, including by email.
16.2 Any such notice or other communication shall be deemed to have been received, provided it is correctly addressed to the address of the relevant Party set out at the head of this Agreement or such other address, email address or fax number as otherwise notified by that Party under this Agreement, if:
- sent by special delivery post, twenty-four (24) hours from the date of posting;
- sent by international airmail, five (5) days from the date of posting;
- sent by fax, at the time of transmission; or
- sent by email, on receipt of a delivery receipt by the sender, provided that if deemed receipt occurs before 9.00 am (local time in the place at or to which the notice is left or sent) on a Business Day the notice shall be deemed to have been received at 9.00 am on that day, and if deemed receipt occurs after 5.00 pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9.00 am on the next Business Day. For the purpose of this Section, “Business Day” means any day which is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent.
16.3 Nothing contained in this Section 16 shall affect the right to serve process in any manner permitted by Law.
17. GOVERNING LAW AND DISPUTES
17.1 This Agreement, including any non-contractual obligations (if any) arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of Sweden.
17.2 Any dispute, controversy or claim arising out of, or in connection with, this Agreement, or the breach, termination or invalidity thereof, shall be referred to and finally and exclusively settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The place of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
17.3 The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC 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 SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
17.4 The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. 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 Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority, a stock exchange contract or similar.
17.5 Notwithstanding Section 17.2 above, the Supplier shall have the right to initiate proceedings regarding unpaid fees, to seek temporary injunctions or otherwise to pursue its ownership and Intellectual Property Rights pertaining to the Service or the Software in any court with applicable jurisdiction.
17.6 In case this Agreement or any part of it is assigned or transferred to a third party, such third party shall automatically be bound by the provisions of this arbitration clause. Except as provided in the immediately preceding sentence, no third party shall be deemed a third-party beneficiary of this Agreement nor have or be entitled to enforce rights granted under this Agreement.
Appendix 1 – Support Services
This Appendix 1 of the Agreement describes the support services and service levels (SLA) for the Service.
Definitions used herein shall have the meaning subscribed to them in Section 1 in the main agreement.
A1.2 Support Services
A1.2.1 Service scope
All support is included up to two (2) hours per User per month. Additional support is billed according to the Supplier’s at each time applicable hourly fee.
A1.2.2 Support Services
The Supplier provides the following Support Services:
- Client will have direct access to the Supplier’s Support Service team as set forth from time to time by phone or mail, with availability outlined in section A1.3.2.
- Response, classification and guidance of all incoming service requests
- Resolution of issues in the Service
A1.2.3 Support request type classifications
The request classification and the corresponding Supplier commitments for the Support Service is provided below:
|Type of support request||Supplier’s support commitment|
For regular usability questions, the Supplier will endeavor to seek resolution through adequate answers/guidance.
For extensive questions caused by lack of Service training or industry knowledge, the Supplier will provide initial guidance only. For full resolution, the Supplier can provide training or consultancy services (to be agreed separately).
|Incidents and service requests||The Supplier will provide assistance with classifying and providing guidance on incidents and service requests (non-Service specific questions).|
|Issue caused by software bug||The Supplier will seek to provide long-term solutions to any material issues in the Service.|
|Service improvement request||The Supplier will review and give indications on all incoming Service improvement requests.|
|Request for client specific development||The Supplier will not deliver custom specific developments. Any such developments would be done pursuant to a separate, mutually agreed agreement.|
A1.2.4 Support request severity classifications
The Supplier is responsible for classifying the severity of each support request based on recommendation from the Client. The following severity definitions apply:
Total business impact.
A Stopper severity issue is where critical business functionality is inaccessible due to complete loss of service or substantial network interruption to the platform.
Temporary workarounds followed by actions to mitigate the issue.
A Critical severity issue covers defects/issues that impact the platform’s ability to fulfil time-sensitive critical business functionality.
Temporary workarounds followed by actions to mitigate the issue.
A High severity issue covers defects/issues that impact the platform’s ability to fulfil critical business functionality that is not time-sensitive and/or where a temporary workaround is possible with significant effort.
There are temporary workarounds, requiring significant effort through manual intervention.
A Medium severity issue covers defects/issues that impact the platform’s ability to fulfil important business functionality which is not time-sensitive, and/or where a temporary workaround is possible with moderate effort.
Issues at this level can also be change requests or requests for new functionality with high impact and/or a time-sensitive nature.
There are temporary workarounds requiring moderate effort, or the issue/request has a high impact but is not time-sensitive
A Low severity issue covers defects or change requests that have low business impact and can be circumvented with minimal effort.
There are temporary workarounds requiring minimal effort, or the issue/request has a medium impact and is not time-sensitive
A Cosmetic severity issue covers change requests or new ideas relating to the look and feel of the application. These are low priority issues that do not affect functionality directly.
The request/defect can be resolved in the future and there is no need for any immediate attention.
The following specific exclusions are stated for the Service scope:
- Service availability is excluded during scheduled and ad-hoc maintenance time windows.
- Service and Support Services availability is not guaranteed if affected by factors outside the reasonable control of the Supplier including, without limitation:
- any Force Majeure events,
- issues relating to any actions or inactions by the Client or third parties,
- issues relating to equipment, devices, software or other technology belonging to the Client or third parties (other than third party equipment within the Supplier’s direct control); and, as well as acts or omissions of external services including, without limitation, market data providers, trading and other internet connectivity, banks and fund administrators.
A1.3 Service levels
A1.3.1 Service availability
As part of the Agreement, the Supplier’s service commitment relating to the availability of the Service is 99.7% uptime during any calendar month. The percentage is based on the total uptime number of hours per month, minus maintenance schedule hours, and excluding unavailability or delays in availability due to matters set forth in Section A1.2.5 (Exclusion). The Service availability does not include scheduled maintenance.
The Service availability uptime percentage is measured by the Supplier chosen solution (on the servers located at the facility selected by Supplier).
A1.3.2 Support Services availability
A184.108.40.206 Contact points
The Supplier’s Support Services can be reached via the Supplier’s at each time available support-mechanisms, which for example could be via a dedicated support email.
A220.127.116.11 Opening hours
Opening hours for the Support Services are as follows:
- Access to the support service team: 8:00 – 18:00 in Swedish local time on Swedish Bank Days (i.e. days during which Swedish banks are officially open for business).
A18.104.22.168 Response times
Response time means the time from which an issue is reported to the Supplier by the Client, until the Supplier has acknowledged the existence of the issue and reported this acknowledgement to the Client. In the case of an issue classified as Stopper or Critical, the Supplier will also, from the time of the classification, within 1 hour assign a responsible person internally and start to work on a solution or workaround.
The Supplier commits to the following response times during the opening hours of the Support Services (defined in A22.214.171.124) on all incoming issues, depending on their severity (defined in A1.2.4):
|Issue severity||Maximum response time|
A126.96.36.199 Resolution times
Resolution time means the time from which an issue has been detected by the Supplier or reported by the Client, until a solution has been implemented so that the Service works according to the Agreement again.
Notwithstanding anything in this Appendix 1, the main agreement, the other appendices or otherwise to the contrary, Supplier does not represent, warrant, commit to, guarantee or promise achievement of resolution or that resolution will be achieved within any particular time(s).
Measurement of times is done via a system and method chosen by the Supplier.
A1.4 Service Credits
A1.4.1 Uptime and Incident Response Credits
In the event the uptime availability or the response time do not meet the commitments set forth in this Appendix 1, Client will be eligible for a service credit (each, a “Service Credit”) per the schedules below. Notwithstanding anything in this Appendix 1, the main agreement, the other appendices or otherwise to the contrary, a Service Credit shall be Client’s sole and exclusive remedy and Supplier’s sole and exclusive obligation for such failures. Service Credits shall be applied only against future payments for the applicable Services. Service Credits shall not apply with respect to the exclusions described in A1.2.5. Service Credits are applied as a percentage of the total charge with respect to the monthly billing period in which the failure occurred. The maximum Service Credit may not exceed 50% of the month’s Service Fees. No more than one Service Credit and no more than one Service Credit category (i.e. Uptime Service Credit or Incident Response Credit) is applicable to any one or a series of events or service level.
To receive the Service Credit, Client must submit a Service Credit claim within the billing period immediately following the failed commitment together with reasonable evidence of the failed commitment. Service Credit balance, if any, will not be carried over to future billing periods. After reviewing the Service Credit claim, Supplier will issue the Service Credit in the billing period following the billing period in which the Service Credit claim is confirmed by the Supplier.
“Occurrence limit” in this section A1.4 means the number of occurrences that needs to happen before Service Credits are awarded to the Client.
A1.4.2 Uptime Service Credits
In the event the uptime availability does not meet the uptime commitment set forth in A1.3.1, Client will be eligible for the Uptime Service Credits per the schedule below:
|Monthly Uptime Percentage||Occurrence limit per month||Service credit percentage (of monthly fee)|
|Less than 99.7% but equal to or greater than 99.0%||2||5%|
|Less than 99.0% but equal to or greater than 95.0%||1||10%|
|Less than 95.0%||1||20%|
A1.4.3 Incident Response Credits
In the event any of the response times do not meet the response time commitments set forth in A188.8.131.52, Client will be eligible for the Incident Response Credits per the schedule below:
|Issue severity||Occurrence limit per month||Service credit percentage (of monthly fee)|
Appendix 2 – Data Processing Addendum
Definitions used herein shall have the meaning subscribed to them in Section 1 in the main agreement.
A2.2 Processing of personal data
A2.2.1 Data controller
The Client is the data controller of Personal Data for the Personal Data which is processed within the scope of the Agreement. The Client is at any time responsible for the lawfulness of the processing of Personal Data, which the Client has collected and granted the Supplier access to pursuant to the Agreement.
A2.2.2 Data processor
The Supplier shall be regarded as the Client’s data processor. In its capacity as data processor, the Supplier shall process all Personal Data on behalf of the Client in accordance with the Agreement and in accordance with the instructions as set forth on https://www.limina.com/personal-data-gdpr (Instructions to data processor) from time to time in respect of the processing of Personal Data (the “Instructions”).
3.3 The Supplier shall receive compensation for measures which it takes in respect of processing of Personal Data in accordance with the Agreement.
The Supplier may move, store, transfer, or otherwise process Personal Data belonging to the Client outside of the EU/EEA, provided such transfer meets the requirements and undertakings which follow from the GDPR.
A2.2.5 Conflicting instruction
If the Supplier believes that the Instructions or other instruction or notification from the Client would conflict with the GDPR or any other Law, the Supplier shall be entitled to notify the Client and defer the processing in question.
A2.3 Purpose and type of personal data, etc.
The Instructions shall, inter alia, state the subject of the processing, the duration of the processing, a record of sub-processors appointed by the Supplier, the nature and purpose of the processing, the type of Personal Data, and categories of Data subjects.
A2.4 The Supplier’s personnel, etc.
The Supplier, its employees, and other persons who perform work under the Supplier’s supervision and who gain access to Personal Data belonging to the Client may only process such Personal Data in accordance with the Instructions, unless such person is obligated to do so pursuant to Union law or Swedish national law.
The Supplier shall ensure that its employees and all other persons for whom the Supplier is liable and who are authorised to process Personal Data covered by this Agreement have undertaken to maintain confidentiality (unless such person is subject to an appropriate statutory confidentiality obligation).
The Supplier shall take sufficient technical and organisational measures designed to protect Personal Data which it processes pursuant to the Agreement. The Supplier shall also assist the Client through appropriate technical and organisational measures, to the extent possible, so that the Client can fulfil its obligation to respond to a request following a Data subject exercising its rights under applicable Personal Data legislation.
The measures shall be adapted to a level which is suitable, taking into consideration the degree of sensitivity of the Personal Data, the particular risks which exist, existing technical possibilities, and the costs for carrying out the measures.
A2.6.1 Entitlement of sub-processors
The Client agrees that the Supplier shall be entitled to retain sub-processors to perform the work under the Agreement.
A2.6.2 Record of sub-processor
The Supplier shall maintain records of the sub-processors used for the processing under the Agreement at https://www.limina.com/personal-data-gdpr
Such sub-processors may also be available upon request to email@example.com. The Supplier shall update this list on its website at least 30 days prior to any such change, notify the Client and give the opportunity to object to such change of sub-processors.
A2.6.3 Change of sub-processor(s)
The Client may object to a new sub-processor on objectively acceptable reasons. In such an event, the Parties shall cooperate in good faith to reach a resolution and if such resolution cannot be reached, then, the Supplier, at its discretion, will either not appoint or replace the sub-processor, or have the right to terminate this Agreement. If the Client does not object within thirty (30) days after notification pursuant to section A2.6.2, the Client is deemed to have accepted the new sub-processor.
A2.6.4 Sub-processor obligations
The Supplier shall take steps so that any such sub-processor enters into a written personal data processor agreement before the sub-processor begins work related to the Client. Any such Personal Data processor agreement must contain the undertakings and obligations which follow from the Agreement. In any such Personal Data processor agreement, the sub-processor shall provide sufficient warranties in respect of taking suitable technical and organisational measures so that the processing meets the requirements of the GDPR.
In the event the sub-processor fails to fill its obligations, the Supplier shall be liable to the Client for the performance of the sub-processor’s obligations.
A2.7 DPIA, Audit and Information
The Supplier agrees and warrants to, at the request of the Client, taking into account the type of processing and the information available to the Supplier, assist to comply with the obligations regarding the preparation of a data protection impact assessment (DPIA) and prior consultation with the responsible supervisory authority, in accordance with applicable Personal Data legislation.
The Supplier shall at the request of the Client, submit its facilities where Personal Data is processed for audit in order to ensure and demonstrate that the processing is compliant with this Agreement and the obligations deriving from applicable Personal Data legislation. The audit shall be carried out by the Client or such person that the Client appoints, provided that such person is bound by a duty of confidentiality and signs a confidentiality agreement in form and substance acceptable to the Supplier.
The Supplier shall deal promptly and properly with all inquiries from the Client relating to its processing of the Personal Data and provide the Client with all information reasonably required to demonstrate its compliance with obligations under applicable Personal Data legislation.
A2.8 Personal Data breach
The Supplier shall notify the Client’s designated contact person after having become aware of a Personal Data breach. If and to the extent not possible to provide all information at once, the Supplier may provide the Client with the information in batches without further delay.
The Supplier shall investigate a Personal Data breach and undertake measures designed to mitigate possible adverse effects of the Personal Data breach, identify its cause(s) and prevent similar Personal Data breaches. The Supplier shall cooperate with the Client in order to protect the rights and freedoms of registered natural persons. The Parties undertake to coordinate remedial and mitigating action which are undertaken and planned.
A2.9 Limitation of liability
Limitation of liability provisions in the main agreement, shall also apply to this Appendix 2.
A2.10 Termination of this Appendix
Upon the Supplier’s cessation of processing of Personal Data on behalf of the Client, the Supplier shall return all Personal Data to the Client in the manner reasonably designated by the Client or, where so notified by the Client in writing, shall destroy all Personal Data connected to the Agreement. If the Client decides that Personal Data shall be destroyed the Supplier shall confirm to the Client when completed.
In the event that legislation imposed upon the Supplier prevents it from returning or destroying all or part of the Personal Data, the Supplier warrants that it will retain the confidentiality of the Personal Data and that it will not actively process the Personal Data or, alternatively, anonymise the Personal Data in a manner that makes it impossible to recreate the Personal Data in such a manner that a natural person is not or no longer identifiable.