EULA
1. Introduction
1.1 - These Terms of Service (the “Terms”) govern the use of the service KLASH (the "Service") and apply between Klash AB, org. no. 556829-7245 (the "Supplier"), and 1. such company (the “Company”) which, through an authorized representative, or 2. such individual (“Individual”) who has the right to enter into this agreement, and who, in relation to both 1. and 2., has accepted to be bound by them i) through the self-service sign up in the Service, or ii), as applicable, upon request, by executing an individualized agreement (the “Main Agreement”) with the Supplier.
1.2 - The Supplier and the Company, as well as the Supplier and the Individual, are each collectively referred to as the “Parties” and individually as a "Party". The Company and the Individual are individually referred to as a “Client”.
1.3 - By accepting the Terms, the Client warrants that it has the legal right to do so according to applicable law (including international law), and that this does not constitute a breach against any court decision or decision made by competent authority or any EU and UN institution.
1.4 - The Terms and, where applicable, the Main Agreement and any eventual attachments agreed between the Parties are collectively referred to as the "Agreement". In the event that the Terms, the Main Agreement and any attachments differ with respect to a certain matter, the Main Agreement shall take precedence over the Terms and the Terms shall take precedence over any attachments. If there are several attachments, they shall take precedence in ascending numerical order.
2. The Service
2.1 - The Service is a review and collaboration software service, provided as a Software as a Service (SaaS). The Service is intended to be used for the Client’s internal purposes as well as to act as a bridge between the Client and (other) companies and/or other third party users (as set forth herein), meaning that the Client may cooperate with other users through the Service. The Service is provided through the website https://klash.studio/ (the "Platform").
2.2 - Through the Service and through the Client’s Account (as defined below), the Client may invite individuals (i.e., “team members”, mainly, in relation to the Company, the Company’s employees, subcontractors and clients) to use the Service under the Client’s Account (each such person is referred to as a “User”).
2.3 - The Supplier has the right to hire subcontractors for the provision of the Service or parts thereof. The Supplier is responsible for the actions of its subcontractors as if they were the Supplier’s own actions.
3. Access to and use of the Service
3.1 - Through the Agreement, the Client is granted a non-exclusive, non-transferable and non-sublicensable license to use the Service to the extent, and in accordance with, the terms set forth in the Agreement.
3.2 - For the use of the Service, the Client needs access to the internet and such computer equipment and software as required for the use for the Service according to the Supplier’s instructions from time to time, and is responsible for having such. If the Client uses a third party's product or service in connection with the use of the Service, the Client undertakes to comply with the eventual terms applicable for such product or service.
3.3 - For using the Service, the Client also needs to have an account in the Service (“Account”) which is created by the Client following the instructions in the Platform and thereby providing the information requested. Certain features within the Service require a premium account (hereinafter referred to as a “Premium Account”, however, a Premium Account is also included in the definition of “Account”) which is also created by the Client following the instructions in the Platform and thereby providing the information requested.
3.4 - The Client is responsible for ensuring that all activity that takes place within the Client’s Account is carried out in accordance with the Agreement, applicable law and any eventual contractual obligations in relation to any third party, and for protecting the login details to the Account. This means that the Client is responsible for the acts and omissions of its Users as if they were the Client’s own actions/omissions. The Client shall ensure that all of its Users are made aware of and abide to terms no less onerous than those of the Agreement in relation to the usage of the Service. For the avoidance of doubt, the Client’s liability for its Users includes, where applicable, both such Users which are part of the Client’s (internal) organisation, as well as external Users who have been invited to use the Service within the Client’s Account.
3.5 - The Client is responsible for ensuring that any information provided by the Client when creating the Account or using the Service, or which is otherwise shared with the Supplier, is correct and complete, and for having the right to share it. This includes, for instance, the right to share the email addresses of, and, where applicable, other information about (where applicable) the Client’s (external and internal) Users.
4. Changes to the Service
4.1 - The Supplier reserves the right to at any time change, extend, reduce, add or terminate features of the Service without giving prior notice to the Client.
4.2 - However, if a change is to be made that significantly changes the Service, the Client shall be notified at least 30 days before the change becomes effective. If the Client does not agree to the change, the Client has the right to terminate the Agreement in accordance with Clause 13.1.
5. Price and payment
5.1 - For the use of the Service through a Premium Account, the Client shall pay a monthly fee per User, per internal User only (i.e., normally the Company’s employees) or as otherwise agreed, as set forth in the Client’s subscription plan in the Platform (unless otherwise set forth in a Main Agreement) (the “Subscription Plan”). Use of the Service which is not conducted through a Premium Account is free of charge. For the use of certain services/features within the Service, the Client may (as from time to time) have to pay an additional fee in accordance with the Subscription Plan.
5.2 - The Supplier has the right to change the price of the Service at any time (including, for instance, the price per User, the price for a certain service/feature within the Service etc.). If this happens and the price is increased, the Client shall be notified thereof no later than 30 days before the amended price becomes effective. If the Client does not accept the amended price, the Client has the right to terminate the Agreement in accordance with Clause 13.1 whereby the price (previously) agreed shall apply during the remaining term of the Agreement.
5.3 - Payment shall be made in accordance with the Subscription Plan applicable to the Client (or as set forth in the Main Agreement). Where applicable, the Supplier has the right to charge a reasonable invoice fee. In the event of late payment, penalty interest, and reminder and delay fees may be charged in accordance with law.
5.4 - All prices in the Service or as otherwise communicated by the Supplier are excluding VAT and other applicable fees and taxes.
6. Right of withdrawal
Should the Individual sign up for a Premium Account, the Individual acknowledges and agrees that the Individual does not have a right of withdraw from the purchase since the Individual will get direct access to the features under the Premium Account in connection with subscription. This means that the right to withdrawal under the Swedish Distance and Off-Premises Contracts Act (2005:59) (Swedish: distansavtalslagen) does not apply to the subscription of a Premium Account.
7. Intellectual property rights etc.
7.1 - Subject to Clause 7.2, all intellectual property rights relating to the Service and the Platform, and all information contained therein (such as but not exclusively copyright (including source code), trademarks and designs) (“Intellectual Property Rights") constitute the exclusive property of the Supplier or the Supplier’s subcontractors or a third party. The Agreement does not imply that the Client acquires any rights to Intellectual Property Rights, other than a license to use the Service during the term of this Agreement and otherwise in accordance with the Agreement. The Client undertakes not to modify or try to modify, copy, reverse engineering the Service (including any software or other rights embodied therein), but in all aspects respect the intellectual property rights of the Supplier.
7.2 - Any digital assets, such as video, audio, pictures and similar, which are uploaded by the Client in the Service, and all intellectual property rights embodied therein (“Assets”), constitute the exclusive property of the Client or a third party who has granted to the Client a license necessary to use such Assets (as they are being used by the Client). The Client warrants that it has the right to upload and use any Assets which are furnished to the Service and shall be solely responsible (and shall indemnify, defend and hold harmless the Supplier) if this is not the case. The Agreement does not imply that the Supplier acquires any rights to such Assets. This means that the Supplier may not exploit, disclose to third parties (not including the Supplier’s subcontractors which may get access to Assets when performing services to the Supplier as referred to in Clause 2.3) or otherwise use any Assets for its own purposes or for the benefit of a third party. Notwithstanding anything to the contrary, the Supplier has, unless otherwise agreed in writing, the right to use the Company’s company name and trademark for its own marketing purposes.
7.3 - Notwithstanding anything to the contrary, such data and compilations which are created in the Service when the Client uses the Service, may be used by the Supplier without limitation provided that the data and the compilations are anonymized. This right also applies after the term of this Agreement. Such data and compilations may for example be used by the Supplier to improve the Service. For the avoidance of doubt, the Supplier has the right to use cookies as set forth in the cookie policy in the Platform (as amended from time to time).
8. Storage, Backups and security
8.1 - The Service is a review and collaboration software service, and a tool for cloud storage of Assets. A certain storage space is included per User, as offered by the Supplier from time to time. This applies unless otherwise has been agreed between the Parties.
8.2 - IT and information security is of outmost importance to the Supplier. Therefore, the Supplier will always ensure that appropriate (considering the standard solution for companies within the same industry as the Supplier) security measures are in place within the Service, such as measures in line with or substantially in line with the Trusted Partner Network (TPN), Motion Picture Association (MPA), Content Delivery & Security Association’s (CDSA) best practices, and/or ISO 27001/20000 Information Security Management System (ISMS).
9. Confidentiality
The Supplier undertakes to not disclose to any third party information about the Client, its Assets or any other information provided by the Client to the Supplier. This applies unless Supplier has an explicit right to disclose such information as set forth in the Agreement, if such disclosure is otherwise required for the provision of the Service (as deemed by the Supplier acting reasonably), or if the Supplier is required by law, regulation or a decision of a court or competent authority to disclose certain information.
10. Processing of personal data
10.1 - Personal data of which the Company or, as applicable, the Individual, is the data controller may be shared for the purposes of the Agreement. The Supplier will process such data in the capacity of the Client's data processor. Therefore, when entering into this Agreement, the Supplier and the Company and, where applicable, the Supplier and the Individual, shall enter into the data processing agreement, attached hereto as Appendix 1. This applies unless the Parties has agreed to another data processing agreement.
10.2 - The Supplier also collects certain personal data in the capacity of a data controller, mainly in relation to the Individual. When processing such personal data, the terms of the Supplier’s privacy policy as applicable from time to time shall apply, which may be found, for example, here: https://klash.studio/legal, and in the Platform.
11. Defects in the Service and support
11.1 - The Supplier strives for the Service to always function smoothly and without interruption but does not guarantee that this will always be the case. If problems arise in the Service, the Supplier undertakes to try to resolve them promptly and in a way that causes the Client minimal damage.
11.2 - If the Service is wholly or partly out of function or flawed and this is material and lasts for a longer period than the Client should reasonably accept, the Client is entitled to a reasonable price reduction provided that the Client makes a complaint to the Supplier no later than 30 days after the flaw occurred. The price reduction shall correspond to the license fee for the period during which the Service is wholly or partially out of function.
11.3 - The Supplier provides support for the Service through the Platform, by email and phone. The support is available during business hours on weekdays which are not public holidays in Sweden. The Supplier uses its best efforts to handle support inquiries promptly. The Supplier has the right to decide what is included in the support provided.
12. Limitation of liability
12.1 - For the avoidance of doubt, the Supplier is not responsible for errors relating to the Client's computer equipment, software and/or internet connection, or for any third-party actions. Further, the Supplier is not responsible for the acts of other users of the Service (than the Client) with whom the Client chooses to collaborate through the Service, including in relation to the Client’s Assets.
12.2 - The Supplier can never be held liable for indirect or consequential damages, including but not limited to loss of profit or loss of cost savings. The Supplier's liability under the Agreement is limited to the amount paid by the Client for the Service during the period of 6 months preceding the date of the damage/damage. Should the Client suffer loss as a result of the Supplier’s breach of contract, the Client undertakes to try to limit such loss.
12.3 - The Service may contain links to websites provided by third parties. The Supplier does not control the content of such websites, nor can the Supplier accept any responsibility for such content (including such third party's handling of personal data), or any loss suffered by the Client as a result of the Client visiting such website.
12.4 - Neither Party is responsible for the performance of obligations prevented by circumstances beyond the control of the same Party, including but not limited to amendments in laws or regulations of authorities, interference in telecommunications networks, and computer viruses or hacker attacks that could not have been prevented by reasonable safeguards. If such circumstances exist, the Party which is prevented from performing in accordance with the Agreement shall inform the other Party thereof as soon as possible. An obligation which could not be complied with as a result of such circumstance shall be complied with as soon as the relevant circumstances do not longer exist.
12.5 - The limitation of liability provisions under the Agreement do not apply to the extent a Party has acted intentionally or through gross negligence, and only to the extent permitted by appliable law. In the event that a liability limitation provision under the Agreement or a part thereof is deemed invalid, the provisions of Clause 14.3 shall apply.
13. Term and termination
13.1 - The Agreement enters into force as set out in Clause 1.1 and shall be applicable until any Party terminates it which, unless otherwise agreed, may be done at any time before a new payment for a new contract period is due (as set forth in the Subscription Plan). The Supplier will not be required to repay any amount already paid by the Client or waive the right to any payment which is due.
13.2 - The Client may terminate its Account following the instructions set out in the Platform or by the Client notifying the Supplier in writing of the termination via the contact details set forth in the Platform. The Supplier may terminate the Agreement by notifying the Client in writing thereof through the Platform or by e-mail to the e-mail address to which the Client's Account is linked.
13.3 - The Supplier has the right to terminate the Agreement with immediate effect and/or suspend the Client from the Service if the Client i) commits a breach of the Agreement which is not minor, or it is likely that this is the case (for instance by not making relevant payments), ii) in another way uses the Service in a way which reasonably could cause damage to the Supplier, other users of the Service or the Service, iii) by, or when, using the Service, commits a breach of applicable law (including international law) or a court decision or decision made by a competent authority or any EU and UN institution, or iv) where applicable, suspends its payments, enters into composition procedure, files for bankruptcy, submits a request regarding company reorganisation or similar, or enters into liquidation. For the avoidance of doubt, termination/ suspension according to this Clause 13.3 will not result in the Supplier having to repay any amount already paid or waive the right to any payment which is due.
13.4 - The termination of the Agreement shall not affect any rights and obligations that has arisen prior to termination. Regardless of the termination of the Agreement, the Agreement shall, where applicable, for instance as regards law and disputes (Section 15), continue to apply.
14. Miscellaneous
14.1 - Transfers: The Supplier, but not the Client, may assign and transfer its right and obligations under this Agreement.
14.2 - Entire agreement: The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all eventual previous guarantees, undertakings, understandings, and agreements as agreed between the Parties, whether written or oral.
14.3 - Substitution: If any provisions of this Agreement or the application of it shall be deemed void, this shall not result in the Agreement or the provision as a whole being void. Instead, an appropriate adjustment of the Agreement shall be made taking into account the Parties' intention when entering into the Agreement.
15. Applicable law and disputes
15.1 - This Agreement shall be governed and interpreted in accordance with Swedish law (however not including conflict of law provisions).
15.2 - Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof between the Supplier and the Company, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be Swedish, unless otherwise agreed between the Parties.
15.3 - All arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. The confidentiality provision includes all information which emerges during the proceedings as well as any decisions or arbitration award of the Arbitral Tribunal. Any information covered by this confidentiality provision may not be disclosed to any third party without the other Party’s prior consent. This confidentiality provision shall however not prevent a Party from disclosing information as required by compulsory law, a decision of a court or authority, in order to safeguard in the best possible way its rights vis-à-vis the other Party in connection with the dispute, or in order to enforce, appeal or challenge a decision or arbitration award.
15.4 - Any dispute, controversy or claim arising out of or in connection with this contract between the Supplier and the Individual, or the breach, termination or invalidity thereof, shall be finally settled by the public courts of Sweden, with Stockholm District Court (Swedish: Stockholms tingsrätt) as first instance.
15.5 - The Individual also has the right to get eventual disputes tried outside the public court, by filing a complaint with the National Board for Consumer Disputes (Swedish: Allmänna reklamationsnämnden) (”ARN”). More information and contact details to ARN may be found at www.arn.se.
15.6 - Further, the Individual may, in case of a transnational dispute, avail of the online dispute resolution platform of the European Union, which is available here: www.ec.europa.eu/consumers/odr.
15.7 - The Individual may always contact the Supplier in relation to disputes using the email address hello@klash.studio.