Terms of Service - As of 1 March 2023
The relationship between the Customer and Formetrics for the use of cloud-based software-as-a-service and related professional services is governed by these Terms of Service (referred to as "ToS"). The ToS forms a legal and binding agreement ("Agreement") between the Customer and the Formetrics entity stated in the Agreement or Order Form. The Agreement comes into effect when either (a) the Customer signs the Order Form / agreement, or (b) the Customer registers an account according to Section 2.
These ToS are the exclusive terms and conditions that apply. Any terms and conditions from the Customer that conflict with or deviate from these ToS will not apply unless Formetrics has agreed to them expressly in writing or in text form.
2. Registration of account
To use Formetrics's Services, the Customer must register for an account with Formetrics. Formetrics reserves the right to deny the setup of an account in certain cases. Once the Customer has successfully registered for a Formetrics account, Formetrics will confirm the account setup by sending a text format confirmation (via email) to the Customer.
3. Subscriptions plans & prices
3.1 The prices for the Service are set out in the Subscription and are exclusive of VAT and similar taxes. For any services for which no specific price has been agreed in writing, Formetrics' standard fees, applicable at the time of delivery, shall apply.
3.2 Unless otherwise agreed in writing, Formetrics' standard fees, as applicable from time to time, shall apply to any additional services and work for which prices are not specified in the Subscription. Regular User Support is included in the prices for the Service set out in the Subscription, but services provided by Formetrics in connection with support requests by the Customer are not included..
3.3 For subsequent subscription periods, the Customer and Formetrics will adjust fees based on the principles agreed upon in the Order Form. In case the Order Form does not specify any such principles, Formetrics reserves the right to increase fees by 5% per year following the initial subscription period.
3.4 If Formetrics incurs additional costs for the underlying Service, such as the introduction of new regulations or additional obligations, Formetrics reserves the right to increase its fees accordingly. If Formetrics decides to increase its fees, the new fees will take effect thirty (30) days after the Customer has been notified, unless the Customer objects to the fee increase within those thirty (30) days from the receipt of notification. In the event of objection by the Customer, the parties will negotiate in good faith. If the parties are unable to reach an agreement, a conciliator appointed by both parties will determine the new fees, taking into account the respective market price level.
4. Terms of Payment
4.1 Formetrics will charge the Customer according to the terms of payment agreed in the Order Form. If nothing is stated in the Order Form, payment of the fees for the corresponding invoicing period are to be made in advance within twenty (20) days from date of invoice.
4.2 Any overdue payment shall accrue interest in accordance with the Swedish Interest Act (SFS 1975:635). Formetrics reserves the right to collect a reminder fee and/or collection fee in accordance with applicable laws. In addition to other available remedies, Formetrics may immediately suspend the Service and/or terminate the Agreement with immediate effect and without prior notice if full payment is not received when due.
5. Use of the Service
5.1 Formetrics grants the Customer a non-exclusive, non-transferable, worldwide right to access and use the Services during the period specified in the Order Form, subject to these ToS.
5.2 The Customer has the right to use the Service in accordance with the selected subscription plan and the respective technical and operational capabilities and functionalities that are currently available and specified in the Order Form and on Formetrics website.
5.3: The Customer is responsible for complying with all relevant laws and regulations and using the Service in accordance with the Documentation. The Customer is solely responsible for all activities and data that occur under its account and user licenses.
5.4: The Customer shall not attempt to gain unauthorized access to the Service or any information within it.
5.5: The Service may not be used for unlawful purposes or any purpose for which it is not intended. The Customer shall not transmit harmful files or codes, impair the functionality of the Service, or use the Service in any way that is damaging or disruptive to other users or equipment. Additionally, the Customer shall not use the Service in a defamatory or offensive manner or in any other way that could negatively affect Formetrics or the Service's reputation.
5.4: The Customer shall not copy, modify, create derivative works, reverse engineer, or attempt to discover any source code of the Service or part of it. The Customer shall not assign, sublicense, transfer any right in, or use any certificates or equipment belonging to a third party without authorization.
5.5: The Customer shall indemnify Formetrics against any costs or claims arising from the Customer's violation of the Agreement while using the Service.
5.6 Formetrics reserves the right to use the data obtained from the Services, as well as any information derived from the Customer's use of the Services, in anonymized and aggregated form for the following purposes: enhancing security, improving products and services, generating statistical analyses and anonymous benchmarks, and conducting research and development activities.
5.7 Formetrics may integrate its Services with third-party software or allow access to the Services through mobile applications from third-party websites. To use Formetrics's Service with such integrated third-party software or mobile applications, the Customer must obtain the right to use such third-party software or mobile application from the third-party. Any use of third-party software integrated into, or mobile applications accessing, the Formetrics Services shall be exclusively governed by the terms of the applicable third-party software or mobile application, and these ToS and the DPA do not apply to them (except as otherwise agreed in writing by Formetrics). Formetrics is not responsible for the proper functioning, security, availability, or interoperability of such third-party software or mobile application.
6. Information and Security etc.
6.1 The Customer's account credentials must be kept confidential and must not be shared with other users. Only authorized users are allowed to access the platform.
6.2 Formetrics reserves the right to block access to the account if there is suspicion of unauthorized use or if you are in breach of these terms.
6.3 In accordance with statutory regulations, the Customer is liable for any use and/or other activity that is carried out with the Customer’s account details.
6.1 The Customer acknowledges that the Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Formetrics shall not be liable for any delays, delivery failures, or other damage resulting from such problems outside Formetrics' reasonable control.
6.2 The Customer shall comply with any usage limits or other restrictions on the Service specified in the Agreement or as otherwise communicated by Formetrics from time to time.
6.3 The Customer shall not use the Service to store or process any sensitive personal data, as defined by applicable data protection legislation, unless the Customer has obtained all necessary consents and authorizations.
7. Availability and Support
7.1 For all chargeable cloud Services, Formetrics provides an availability of 99.5% on a monthly average, planned downtime excluded. Planned downtime will occur on the first Sunday of the month between 22-05 CET. Formetrics will notify Customer in advance, whenever possible, about deviating planned maintenance or downtime.
7.2 Formetrics advises that data loss may occur even with a duly performed data backup. The Customer is therefore recommended to store data like survey results and addresses regularly on its own, external storage devices.
8. Acceptable use policy
8.1 The Customer is responsible for ensuring that all data and communications associated with their use of the Services comply with applicable laws and do not infringe the rights of others, including the rights of children and young persons, or intellectual property rights.
8.2 The Customer may not engage in any activities that could impair the smooth operation of the Services, such as distributing viruses or other harmful files, transmitting junk emails or spam, or overloading Netigate's servers.
8.3 The Customer must not attempt to gain unauthorized access to the Services or
ask other users to disclose their passwords or other data for any commercial, illegal, or unethical purposes.
9. Term and Termination
9.1 The Agreement shall enter into force upon receipt of payment on the first Billing Date and shall remain in force until the Customer unsubscribes from the Service and the remaining days thereafter until the next Billing date. For the avoidance of doubt, the Customer needs to unsubscribe at the latest the 1 month before the next Subscription Periods starts in order for the Agreement not to be prolonged for an additional Subscription Period. Formetrics may terminate the Agreement at any given time by giving the Customer a three (3) months’ written notice.
9.2 The Service is provided for the Term of the Agreement.
9.3 Besides as provided for in section 8.1, either party shall be entitled to terminate the Agreement with immediate effect by written notice to the other party, if:
9.3.1 the other party has committed a material breach of the Agreement and does not, where possible, fully rectify such breach within thirty (30) days of the other party giving written notice thereof; or
9.3.2 the other party is declared insolvent, is subject to an application or order of bankruptcy or company reorganization, suspends its payments or otherwise can be presumed to be insolvent.
9.4 Formetrics is also entitled to terminate the Agreement with immediate effect if the Customer’s use of the Service violates the Agreement, including sections 5-6, or if full payment in accordance with the Agreement is not received by Formetrics when due.
9.7 Upon termination, the Customer shall immediately cease its use of the Service and both parties shall, subject to section 9.8, return or delete confidential information or Documentation received from the other party.
9.8 The Customer shall be entitled to retrieve any Customer Data on the medium chosen by Formetrics and reasonably accepted by the Customer, provided that the Customer requests this from Formetrics in writing within thirty (30) days from termination of the Agreement and pays Formetrics for any reasonable work associated with this.
10. Customer Data
10.1 Formetrics will process personal data on behalf of the Customer in order to fulfill the obligations under this Agreement. In the course of such processing, the Customer shall be deemed the controller for the processing of personal data, and Formetrics shall act as the processor. The parties have therefore entered into a data processor agreement, as set forth in Appendix 1.
11. Confidentiality and Solicitation
11.1 Neither party may disclose to a third party any information received from the other party which is confidential, or can reasonably be assumed to be confidential, including, without limitation, any technical information, information on business secrets, source codes, login information or security methods for access to the Service, and the terms of the Agreement. This does not apply to information that (i) is or becomes publicly known without the breach of the Agreement; (ii) was known to the receiving party prior to receipt from the disclosing party or disclosed by a third party without any obligation of confidentiality; or (iii) the disclosure is required by law, regulatory body or an agreement with a stock exchange where the party is listed, or similar. Each party is responsible for ensuring that their sub-contractors, consultants and employees respect corresponding confidentiality obligations.
11.2 If The Customer during the term of the Agreement, and for twelve (12) months thereafter, solicits the employment or other engagement of any person who is or has been directly involved with the performance of the Service, Formetrics shall be entitled to compensation. Such compensation shall be constituted by a fixed fee from the Customer corresponding to five (5) price base amounts (Sw: prisbasbelopp), as provided for in the Swedish Social Insurance Code (SFS 2010:110), for each and every breach of this section 11.2.
12. Intellectual Property Rights
12.1 The Customer retains the ownership of all intellectual property rights to the data, information and files, including Customer Data, uploaded by the Customer to the Service. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof, with the exception of Formetrics s right to use Customer Data in accordance with section 10.1.
12.2 Formetrics and/or its licensors hold all intellectual property rights to the Service and Formetrics s website, including any updates, files or data being uploaded to or performed on the Service by Formetrics , as well as to the software and source code included in the Service. This includes, without limitation, any patents, copyrights, design rights and trademark rights related thereto. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof.
12.3 If a third party makes an intellectual property claim against the Customer based on the Customer’s use of the Service, the Customer shall immediately notify Formetrics in writing of the claim and relevant circumstances. Thereafter the Customer shall either (i) offer Formetrics at its sole discretion and expense, to control the defense of the claim and decide on conciliation in the Customer’s name, including issuing any and all documents (such as powers of attorney) needed without any cost for Formetrics ; or (ii) at its own sole discretion and expense, control the defense of the claim and decide on conciliation in its own name.
12.4 If a competent court finally determines that the Customer’s use of the Service in accordance with the Agreement constitutes an intellectual property infringement, Formetrics shall compensate the Customer, subject to section 11.5, for direct costs and damages that the Customer is found liable to pay, provided that the Customer has adhered to its obligations under section 11.3 above and have not at its own sole discretion chosen to control the defense of the claim in accordance with item (ii) in section 11.3. For the avoidance of doubt, under no circumstances shall Formetrics be liable for compensating the Customer in accordance with this section 11.4 if the Customer decides to control the defense of a claim arisen in accordance with section
12.5. Formetrics may further, at its own discretion ensure the Customer’s right to continued use of the Service or corresponding non-infringing service, or cancel the Service and repay the Customer any fees paid for the remaining term of the Agreement, without interest and with deduction of any reasonable benefit the Customer has had from the Service. This section 11.3 constitutes Formetrics s entire obligation towards the Customer with respect to any infringement in a third party’s intellectual property rights.
12.6 If a third party makes an intellectual property claim, including claims attributable to Customer Data, against Formetrics based on the Customer´s use of the Service, the Customer shall act in order for such claim being transferred to the Customer or, if such transfer is not possible, defend Formetrics , at the Customer´s own expense, against any such claim. Formetrics shall immediately notify the Customer of an intellectual property claim under this section 11.5 including the relevant circumstances in connection thereto. The Customer will indemnify and hold Formetrics harmless against any costs or damages that Formetrics may become liable to pay in relation to such infringement claim.
13. Limitations of Liability and Warranties
13.1 No party shall be liable to the other party for failure to perform its obligation under this Agreement if such performance is prevented by circumstances beyond the control of the party, including, but not limited to, acts of authorities, strikes or other difficulties on the labour markets, general shortage of supplies, fire or loss of electricity, communications or data.
13.2 Formetrics is not in any event liable for any cost, damage or loss of any kinds caused by or related to (i) any third parties, third party products or services for which Formetrics is not responsible for according to the Agreement (including but not limited to Third Party Applications); (ii) modifications or changes to the Service made by anyone other than Formetrics or made according to the Customer’s or its suppliers’ instructions, or (iii) the Customer’s loss of customers, business, profit, revenue, savings, or goodwill, loss due to operational, power or network interruptions, loss of data or information, the Customer’s potential liability towards a third party or other indirect or consequential damage of any kind.
13.3 Formetrics total and aggregated liability under the Agreement is limited to the amount paid by the Customer for the Service or for any other service that the claim relates to, during the twelve (12) month period prior to the time the damage occurred.
13.4 Formetrics shall not in any event be liable to pay damages if the Customer does not notify Formetrics in writing thereof within thirty (30) days after the Customer noticed, or should have noticed, the actual damage or loss, however in no event later than three (3) months from when the damage occurred.
13.5 Except for what is expressly set out in the Agreement, the Service is provided on an “as is” basis and Formetrics makes no warranties or representations, whether express or implied, in relation to the Service, including to the completeness, accuracy, reliability, satisfactory quality, and/or fitness for a particular purpose of the Service.
14.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings.
14.2 Neither party may assign any of their rights or obligations under the Agreement to a third party without the other party’s prior written approval. However, Formetrics may assign its right to receive payment to any third party without the Customer’s approval.
14.3 Formetrics may amend these Terms by giving the Customer three (3) months’ written notice. Amendments will be effective from the next payment period following the notice.
15. Governing Law and Disputes
15.1 This Agreement shall be governed by and construed in accordance with the laws of Sweden. Any dispute, controversy, or claim arising out of or in connection with this Agreement, including its breach, termination, or invalidity, shall be finally settled by arbitration under the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitration shall be conducted by a sole arbitrator, and the place of arbitration shall be Stockholm, Sweden, unless otherwise agreed by the parties. The language used in the arbitration shall be English, unless the parties agree otherwise. All proceedings, information disclosed, and decisions made in the arbitration shall be kept confidential. Notwithstanding the above, Formetrics may take legal action at any competent court to collect delayed payments.