Capego General Terms and Conditions Online Services
Wolters Kluwer Scandinavia AB
These General Terms govern the rights and obligations of Wolters Kluwer Scandinavia AB, Swedish corporate ID number 556459-8521, hereinafter referred to as "Wolters Kluwer", and a legally competent individual or corporate entity, hereinafter referred to as "Customer", concerning Customers use of Wolters Kluwer’s online application suite Capego.
By accepting these general terms and conditions the Customer certifies that the Customer has read, understood and accepted the terms set out herein and in the documents referred to in these terms and conditions. Terms and conditions contained in separately signed documents take precedence over these general terms unless expressly stated otherwise. However, information specified in general product data sheets for Wolters Kluwer’s products and services, not specifically referred to in writing in connection with the Agreement, does not form any part of the Agreement, as such product data sheets are subject to continuous revision and, consequently, may be out of date
Unless the context or circumstances clearly indicate otherwise, the following words and phrases shall have the meanings specified below:
1.1 Access Point
The point as specified by Wolters Kluwer at which Wolters Kluwer connects the Service to a public electronic communications network.
The agreement entered into between the parties and which includes the content of these general terms and conditions, along with any other agreement, which may be reached between the parties concerning Customers use of the Service.
1.3 Client Software
The software that the Customer will receive as a part of the Service according to clause 4.5.
1.4 Customer's Data
Data or other information that the Customer, or another party on the Customer's behalf, puts at Wolters Kluwer's disposal as well as the result of Wolters Kluwer's data processing.
1.5 Price Matrix
The license fee and payment terms for the Service applicable from time to time specified on the Wolters Kluwer´s website.
The availability on line of the latest version of the application module of Capego suite specified to the Agreement and related services specified in Specification.
1.7 Super User
The person representing the Customer referred to in clause 4.3.
The specification of the contents of the Service contained in the Agreement or on the Wolters Kluwer´s website and any subsequent changes thereof in accordance with clause 5.
1.9 Wolters Kluwer´s website
The website where Wolters Kluwer´s places information about the Service.
2. Term of the agreement
2.1 Unless otherwise agreed in writing the Agreement shall enter into force when the Customer starts accessing or using the Service.
2.2 After commencement, the Agreement shall remain in force for a period of twelve months. The Agreement will automatically be renewed for twelve months at a time unless terminated by either Party giving one month’s notice to the end of the current term. Notice of termination must be given in writing.
2.3 Provisions governing premature termination are contained in clause 18 below.
3. The Service
3.1 Wolters Kluwer grants the Customer from the first date of use the right to access the Service at the Access Point.
3.2 The contents of the Service are set out in the Specification. Wolters Kluwer shall perform its obligations in a professional manner.
3.3 Wolters Kluwer may engage sub-contractors for performance of the Service and other obligations under these general terms and conditions. Wolters Kluwer has the same responsibility for work performed by sub-contractors as for Wolters Kluwer’s own work.
3.4 Wolters Kluwer may provide the Service, in whole or in part, from another country provided that Wolters Kluwer otherwise fulfils the terms and conditions of these general terms and conditions.
3.5 Wolters Kluwer reserves the right to remove any material stored on Wolters Kluwer´s servers in breach of clauses 4.7 and 4.8.
4. The Customer's Use of the Service
4.1 The Customer has a non-exclusive, non-transferable right to use the Service only within the Customer for its business, which may include servicing and maintaining records on behalf of its customers. The right to use is for the total amount of Customer´s customers that is linked to the version and the amount of users Customer has purchased a license for. The Customer may allow contractors to use the Service on its behalf. The Customer is responsible for such contractors use.
4.2 The Customer is responsible for the communication between the Customer and the Access Point. It is also the Customer's responsibility that it has the equipment and software that Wolters Kluwer, on a website or by another written method, has stated is required to use the Service, or which otherwise is clearly required for such use.
4.3 The Customer shall appoint one or more competent individual(s) with suitable training and experience as its local administrator manager(s), hereinafter “Super User(s)”. Customer shall provide contact information for the Super User to Wolters Kluwer. The appointment of each Super User is subject to the approval of Wolters Kluwer, not to be unreasonably withheld. Wolters Kluwer may suspend or withdraw its approval if a Super User is deemed unfit by Wolters Kluwer. The Super User shall serve as a preliminary point of contact with Wolters Kluwer. The Super User is entitled to represent the Customer in matters concerning the implementation of the Services. The Super User shall be authorised to receive all communications from Wolters Kluwer and to relay this information to the appropriate persons or departments at Customer. Customer shall without delay notify Wolters Kluwer in writing of any change of its Super User.
4.4 The Customer shall through its Super User(s) specify what persons are allowed to use the Service. The Customer shall immediately notify Wolters Kluwer if such a person is no longer authorised to use the Service. The Customer is responsible for the use of the Service by such persons.
4.5 Customer will receive a client software to be installed at Customer for the use of the Service. The Client Software will be delivered by e-mail or by Customer´s downloading from Wolters Kluwer´s website The Client Software may only be used by the users that has been specified by the Super User(s)according to clause 4.4. The Customer may not copy the Client Software or any other software that is included in the Service or let anyone other than the persons nominated in accordance with clause 4.4 use the Service including the Client Software.
4.6 The Customer is obliged to follow any written instructions from Wolters Kluwer for the use of the Service. Wolters Kluwer may, after the conclusion of the Agreement, change instructions provided in accordance with clause 5.
4.7 The Customer must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service; or in any way, which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.8 The Customer Data must not be illegal or unlawful, infringe any third party’s legal rights, and must not be capable of giving rise to legal action whether against Wolters Kluwer or a third party (in each case under applicable law).
4.9 The Customer shall ensure that (i) the Customer Data is free of viruses, Trojans, worms or other harmful software or codes, (ii) the Customer Data is in the agreed format, and (iii) that the Customer Data cannot, in any other way, harm or adversely affect Wolters Kluwer’s system or the Service. The Customer must not use the Service to copy, store, host, transmit, send, use, publish or distribute any material which consists of, or is linked to, any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
4.10 The Customer shall ensure that log-in information, security procedures, and other information provided by Wolters Kluwer for access to the Service, is treated as confidential information in accordance with clause 14. The Customer shall immediately inform Wolters Kluwer in the event that any unauthorised person has obtained knowledge of information pursuant to this clause.
4.11 The Customer shall notify Wolters Kluwer immediately upon discovery of any infringements or attempted infringements that might affect the Service.
5. Changes to the Service, THESE GENERAL TERMS AND CONDiTIONS
5.1 Wolters Kluwer may, without prior notification to the Customer, make changes to the Service including but not limited to the Specification or the method of providing it, which naturally may not cause the Customer major problems. Wolters Kluwer may also without prior notifications make changes in the application module of Capego in order to comply with laws and accounting regulations.
5.2 Wolters Kluwer may make other changes to the Service or the method of providing it than those set out in clause 5.1, 30 days after notifying the Customer to this effect.
5.3 Wolters Kluwer may revise these general terms and conditions from time-to-time. Revised terms and conditions will apply to the use of the Service as from the renewal of the Agreement according to clause 2.1. Wolters Kluwer shall notify the Customer of the change.
6. SERVICE LEVELS
6.1 Wolters Kluwer warrants during the term of the Agreement that the Service will meet the applicable service level stated in the separate Service Level Agreement as published at Wolters Kluwer´s website, hereinafter referred to as “SLA”.
6.2 If Wolters Kluwer does not achieve a service level in accordance with SLA, Wolters Kluwer will provide Customer upon request with a credit as described in SLA as Customer’s sole and exclusive remedy.
6.3 Save for what is stated in this clause 6 and the SLA Wolters Kluwer makes no express warranties regarding the Service.
7. RESTRICTED access to the Service
7.1 If the provision of the Service results in a risk of more than insignificant damage to Wolters Kluwer or a different customer of the Service, Wolters Kluwer may block or restrict access to the Service. In connection with this, Wolters Kluwer may not adopt more far-reaching measures than is justified in the circumstances. The Customer shall on the Wolters Kluwer´s website be informed as soon as possible if the access to the Service is restricted.
7.2 Unless otherwise follows from the service level agreement, Wolters Kluwer may carry out planned measures that affect the availability of the Service if required for technical, maintenance, operational or safety reasons. Wolters Kluwer shall perform such measures promptly and in a manner, that limits the disruption. Wolters Kluwer undertakes to notify the Customer within a reasonable time before such action and, if possible, to plan such action to be carried out outside of normal office hours.
7.3 Wolters Kluwer is entitled to prevent persons from continuing to use the Service if the persons have submitted information in breach of applicable legislation or is in breach of clauses 4.6 to 4.9. If Wolters Kluwer exercises this right, Wolters Kluwer shall notify the Customer.
8. Fees and terms of payment
8.1 License Fees
The Customer shall pay applicable fee as of the day the Agreement has been entered according to the Price Matrix. License fee shall be invoiced in advance in such intervals as set forth in the Price Matrix. Payments shall be made within 30 days from the date of invoice. The license fees are exclusive of VAT, other taxes and duties, and charges
8.2 Change of fees
Wolters Kluwer may revise the Price Matrix from time-to-time .The revised Price Matrix will apply as from the renewal of the Agreement according to clause 2.1.
8.3 Payment terms
Wolters Kluwer will invoice yearly in advance for use of the Service. All invoices for any charges under the Agreement are due and payable within 30 days of invoice date. Customer’s account will be considered delinquent (in arrears) if payment is not received by the due date specified on the invoice. All amounts are payable in Swedish Krona (SEK). Payment is to be effected into Wolters Kluwer’s bank account, or otherwise as instructed by Wolters Kluwer.
8.4 Other remuneration
In the event that Wolters Kluwer incurs extra work or additional costs due to circumstances for which the Customer is responsible, the Customer shall remunerate Wolters Kluwer for such extra work and additional costs in accordance with Wolters Kluwer's current price list.
In event of a delay in payment, default interest and other compensation shall be paid in accordance with law. If the Customer's payment is delayed and Wolters Kluwer has requested the Customer in writing to pay the amount due, Wolters Kluwer may, 30 days after a written request is sent to the Customer with reference to this clause, withhold further provision of the Service until the Customer has paid all amounts due and outstanding.
9. Intellectual Property Rights
9.1 Wolters Kluwer and/or Wolters Kluwer's licensors hold all rights, including intellectual property rights, to the Service and any software included in the Service. The Wolters Kluwer name, the Wolters Kluwer logo, and the product names associated with Capego or the Service are trademarks of Wolters Kluwer or third parties, and they may not be used without Wolters Kluwer’s prior written consent.
9.2 It is Wolters Kluwer’s responsibility that the Customer's use of the Service including the Client Software in Sweden does not infringe any copyright, patent or other intellectual property right. Wolters Kluwer undertakes to defend, at its own expense, the Customer against any claims or actions regarding infringement of a third party's rights due to the Customer's use of the Service. Wolters Kluwer shall also indemnify the Customer for any costs or damages that the Customer may become liable to pay as a result of a judgment or settlement. The obligation by Wolters Kluwer only applies if the Customer has notified Wolters Kluwer in writing of a claim or action within a reasonable time and Wolters Kluwer has sole control over the defence against such action and the sole right to negotiate any agreement or settlement. Where a third party alleges that the Customer's use of the Service infringes upon a third party's rights, Wolters Kluwer is responsible for obtaining any necessary rights or procuring other non-infringing software without any costs and as few operational interruptions as possible to the Customer or, amend it so that it no longer causes infringement, or terminate the Agreement with 3 months’ notice, in which case the Customer, during the notice period, is entitled to a deduction of the fee that corresponds to the reduction of the value of the Service as a result of the infringement. Other than as stated in this clause, Wolters Kluwer is not liable towards the Customer for infringements of a third party's intellectual property rights.
10. Customer's Data
10.1 In the relationship between the Customer and Wolters Kluwer, the Customer is the holder of all rights pertaining to Customer's Data. Unless otherwise follows from the Agreement, work in connection with transferring Customer's Data to the Customer during the term of the Agreement is an additional service.
10.2 Wolters Kluwer may use during the term of the Agreement Customer Data to provide the Service to the Customer. Wolters Kluwer may also during the term of the Agreement and thereafter use Customer Data in aggregated form without the possibility to distinguish specific information, for statistical and product development purposes.
10.3 The Customer is liable for, and shall indemnify and hold Wolters Kluwer harmless from and against, any infringement by Customer's Data of any third party right or any other non-compliance with applicable law.
(a) If Wolters Kluwer keeps a log of the use of the Service Wolters Kluwer may only, unless the parties have agreed otherwise, use the data from the log as necessary to perform and develop the Service, to clarify misuse or analyse infringements as well as to provide information to public authorities or for statistical purposes. If data from the logs are used for statistical purposes, the data shall not contain Customer's Data or information to which a confidentiality obligation applies, so that the Customer or a person can be identified, and such statistical analyses shall not create personal data. Such aggregated statistical data will be the sole property of Wolters Kluwer.
12. Personal Data
12.1 When processing personal data within the scope of the Service for which the Customer is the data controller, Wolters Kluwer shall process the personal data in the capacity of data processor to the Customer in accordance with Appendix 1 (Special Terms and Conditions for the Processing of Personal Data in conjunction with Cloud Services), and the Appendix Specification of the Processing of Personal Data, with the amendments to Appendix 1 set forth in clauses 12.2 and 12.3 below.
12.2 When Appendix 1 refers to the General Terms and Conditions issued by the Swedish IT and Telecom Industries, it shall instead be referred to these general terms and conditions.
12.3 When Appendix 1 refers to Applicable Data Protection Legislation, it shall be referred to the Data Protection Acts in Denmark and Norway and the binding regulations and decisions issued by the Data Protection Authorities in Denmark and Norway to the extent these Data Protection Acts and such binding regulations and decisions apply to the processing of personal data under the Data Processing Agreement (as defined in Appendix 1).
12.4 When processing personal data within the scope of the Service for which the Customer is a data processor to its customers, Wolters Kluwer shall process the personal data in the capacity of sub-processor to the Customer in accordance with Appendix 2 (Sub-Processing Agreement).
12.5 Appendix 1 and 2 shall have precedence over any conflicting terms in these general terms and conditions regarding processing of personal data.
13.1 Wolters Kluwer shall comply with its internal security regulations. Wolters Kluwer's internal security regulations shall be available on Wolters Kluwer´s website or other accessible place specified by Wolters Kluwer. The security regulations may be changed in accordance with clause 5.
14.1 Each party undertakes not to disclose, without the other party's consent, to a third party, during the term of the Agreement or for a period of three years thereafter, any information regarding the other party's business that may be considered a business or professional secret or which according to law is subject to a duty of confidentiality. Unless otherwise follows from law, Wolters Kluwer's pricing information or other information that a party specifies as confidential shall always be regarded as a business or professional secret. The confidentiality obligation does not apply to information that the party can demonstrate has become known to the party other than through the project or which is publicly known. Furthermore, the confidentiality obligation does not apply when a party is required to disclose such information by law, court or government order or binding stock exchange regulations. Where a party is required to disclose information in such way, it shall notify the other party prior to disclosure.
14.2 A party shall ensure that confidentially is maintained as set out above by entering into confidentiality agreements with employees that participate in the performance of the Service or taking other appropriate measures. A party shall also ensure that subcontractors and subcontractors' employees that participate in the performance of the Service sign confidentiality obligations on equivalent terms.
15. LIABILITY for the Service
15.1 In the event of a major fault in the Service, Wolters Kluwer shall, if possible, remedy the fault with the urgency required by the circumstances. Wolters Kluwer is only liable for faults pursuant to sub-clause 6 if the Customer has notified Wolters Kluwer within a reasonable time after discovering the fault, and has stated and, if necessary, demonstrated, how the fault presents itself. Where the major fault is caused by the negligence of Wolters Kluwer and Wolters Kluwer not rectified the fault with the urgency required by the circumstances, Wolters Kluwer is liable for damages, with the limitations set out in clause 16.
15.2 The parties have agreed service levels for the Service, in accordance to clause 6. Wolters Kluwer is only liable, in the event of non-compliance with the agreed service levels, for a price reduction or liquidated damages in accordance with clause 6. Other than as just stated, the Customer is not entitled to any damages or other compensation due to non-compliance of agreed service levels, other than in the event of intent or gross negligence.
15.3 Unless otherwise follows from the Agreement, Wolters Kluwer's liability for faults or non-performance of service levels does not include faults or defects caused by the circumstances set out below:
(a) Circumstances for which the Customer is responsible under the Agreement;
(b) Circumstances beyond Wolters Kluwer's area of responsibility for the Service;
(c) A virus or other security interference provided that Wolters Kluwer has implemented security measures in accordance with any agreed requirements or, in the absence of such requirements, in accordance with professional standards.
15.4 Save for what is stated in clause 6 and this clause 15, Wolters Kluwer makes no express or implied warranties regarding the Service.
15.5 The Customer may only invoke remedies under clause 16, if the Customer has notified Wolters Kluwer in writing to this effect no later than 90 days after the Customer became aware, or should have become aware, of the grounds for the claim.
16. Limitation of liability
16.1 If a party is prevented from fulfilling its obligations under the Agreement due to a circumstance beyond the party's control, including but not limited to lightning strike, labour dispute, fire, natural disaster, changes in regulations, governmental actions and/or a failure or delay in services provided by a subcontractor due to a circumstance stated herein, then this shall constitute a ground for release resulting in an extension of the deadline for performance and release from damages and other remedies. If the performance of the Service in substantial respects is prevented for a period, exceeding two months due to a circumstance stated herein, either party shall have the right to terminate the Agreement in writing, without incurring any liability for compensation. When terminating the Agreement in accordance with this clause, clause 19 shall apply.
16.2 A party's liability for damages is limited, per calendar year, to a total sum equal to 15% of the annual fee for the Service in question. With regard to Additional Services, Wolters Kluwer's liability, per calendar year, shall be limited to the total amount of the Additional Service. A party is not in any event liable for loss of profit or other indirect damage. Furthermore, a party is not liable for the other party's liability towards a third party, other than as stated in clause 9 or, as regards the Customer’s liability, under clause 9. Wolters Kluwer shall not be liable for any loss of data, except in respect of possible loss of data caused by Wolters Kluwer's negligence in performing its agreed commitments regarding backup copying. The limitation of liability in this clause 16 does not apply in the event of personal injury, liability in accordance with clause 9 or in the event of intent or gross negligence.
16.3 A party does not have the right to make a claim for damages, unless such claim is made within 6 months from the time the damage occurred.
17. Principles of Business Ethics
17.1 Wolters Kluwer undertakes to use principles of business ethics that comply with the IT&Telekomföretagen's basic principles on business ethics.
18. Early Termination
18.1 Either party may terminate the Agreement:
(a) if the other party commits a significant breach of its obligations under the Agreement and does not remedy such breach within 30 days of a written notice that is addressed to the party in question and contains a reference to this clause; or
(b) if the other party enters into bankruptcy, initiates composition negotiations, is subject to a business reorganisation or is otherwise insolvent.
18.2 Termination shall only be valid if made in writing.
19. Winding up of the Service
19.1 Upon termination of the Agreement, a copy of the Customer's Data and, when applicable, the Customer's Software shall, on a request from the Customer that shall be made at the latest 60 days from the termination of the Agreement, promptly be returned to the Customer or to a person designated by the Customer, and any parts which exist electronically shall, if the Customer so wishes and to the extent reasonable, be submitted in Wolters Kluwer´s standard format. After the expiry of such 60-day period, and unless otherwise is required by law, Wolters Kluwer may destroy such Customer's Data and the Customer's Software at Wolters Kluwer’s premises, or in a different manner make it inaccessible to the Customer.
19.2 After transferring the Customer's Data, or if the Customer has not requested such transfer, Wolters Kluwer shall, after the expiry of the 60-day period referred to in the previous paragraph, delete or anonymise the Customer's Data within a reasonable time but not later than 12 months from the expiry of the Agreement. As regards personal data, Appendix 1 and 2 shall instead apply.
19.3 Upon termination of the Agreement, regardless of reason, Customer shall cease all use of the Service including the Client Software.
20.1 Notice of termination and/or other notices shall be sent by courier, registered post or electronic message to the other party's contact person at the address specified by such party. The other party shall be deemed to have received such notice:
(a) at the time of delivery, if delivered by courier;
(b) 5 days after dispatch, if sent by registered post;
(c) at the time the electronic message arrived at the recipient's electronic address, if sent by electronic message.
21.1 The Customer may not assign the Agreement without the approval of the other party.
21.2 Wolters Kluwer may wholly or partly assign, sub-contract, pledge or otherwise encumber any of its rights and/or obligations under the Agreement to
(a) a parent or subsidiary,
(b) an acquirer of all or substantially all of Wolters Kluwer’s assets involved in the operations relevant to the Agreement, or
(c) a successor by merger or other combination
21.3 Notwithstanding the above Wolters Kluwer may assign the right to accept payment under the Agreement without the approval of the Customer.
22. Governing law, Disputes
22.1 This Agreement shall be governed by Swedish law, without application of its conflict of laws principles.
22.2 Any disputes arising out of the Agreement shall be exclusively and finally settled in the District Court of Gothenburg, Sweden.
The terms and conditions above are updated May 2018