Last Updated: 20 December 2023
1 ABOUT US AND THE AGREEMENT
1.1 Finbits AB, 559375-3923, Birger Jarlsgatan 27, 111 45 Stockholm, (“Bits”), provides services and applications such as the website www.bits.bi (the “Website”) and the Bits Platform (the “Platform”). “Services” means each of the Website, the Platform, or any other service, software or application provided by Bits. The Services are further described on the Website.
1.2 By providing an accept or by using any of the Services, you (the “Customer”) accept to be bound by these terms and conditions (the “General Terms”). Additional terms and conditions may apply as set out in the other documents referred to herein (each an “Appendix”), including Bits Data Processing Agreement (the “DPA”) and Service Level Agreement (the “SLA”). These General Terms and each Appendix form integral parts of the parties’ agreement regarding the Services (the “Agreement”) and shall apply in accordance with the terms and conditions set forth herein and in the Appendices.
1.3 The Platform enables for the Customer to select services from a variety of third-party service providers, as further describedin clause 6.
1.4 Terms defined in any of the Appendices shall have the same meaning in all documents constituting part of the Agreement, unless the context expressly provides otherwise.
2 CUSTOMER AFFILIATES
The Customer may extend the rights in relation to the use of the Services pursuant to clause 4 to its Affiliates, provided that the Customer shall be responsible for its Affiliates’ use of the Services and the compliance by its Affiliates and their users with the terms and conditions of the Agreement. “Affiliate” means a company or other entity which (a) is controlled, directly or indirectly, by the Customer, (b) controls, directly or indirectly, the Customer or (c) is under common control with the Customer, where the expressions “is controlled”, “controls” and “is under common control with” shall be interpreted as referring to control of more than 50% of the voting rights or by the ownership of any other nominal value of the issued equity share capital, or ownership of more than 50% of the shares entitling the holders to vote for the election of directors or persons performing similar functions, or to the right by any other means to elect or appoint directors, or persons performing similar functions, who have a majority vote.
3 RESPONSIBILITIES OF BITS
3.1 Provided that the Customer pays the agreed fees and complies with the terms of the Agreement, Bits shall provide the agreed Services to the Customer in accordance with the Agreement.
3.2 The Services shall be provided in accordance with the descriptions on the Website and with reasonable skill and care. Unless otherwise agreed, Bits shall provide the Services according to the requirements and service levels set out in the SLA and otherwise according to the methods and standards normally applied by Bits.
3.3 When Bits processes personal data as a data processor, such processing shall be performed in accordance with the DPA.
3.4 Bits may at its own discretion use or engage subcontractors to perform the Services, subject to the DPA, and shall be responsible for the subcontractor performing in accordance with the Agreement.
4 THE SERVICES
4.1 The Customer is granted a non-exclusive, non-transferable and limited right to access and use the Platform for the term of the Service pertaining thereto solely for the purpose specified on the Webpage. The Customer is also granted the right to allow individuals which are customers or potential customers of Customer (the “End Users”) to use the Platform for providing information about themselves, as necessary for Bits to provide the Services.
4.2 Bits shall provide the Customer with the credentials and information required for the Customer’s authorised users (“Authorised Users”) to, from the agreed start date, access the Platform.
4.3 The parties may agree upon the provision by Bits of training, consulting or other professional services in relation to the Platform and otherwise the Services (“Professional Services”). Professional Services shall be specified in a written “Statement of Work” unless otherwise agreed.
4.4 All access to and all use of Services is subject to the restrictions and limitations set out in the Agreement.
4.5 Bits may provide the Platform and otherwise the Services, in whole or in part, and store and otherwise process Customer Data (refer to clause 5) from another country than Sweden, unless otherwise set out in the Agreement and provided that Bits otherwise fulfils the terms of the Agreement, including the terms of the DPA.
5 CUSTOMER DATA
Bits will not acquire any title to or ownership of the Customer Data by virtue of the Agreement. Bits shall have the right to access, use and otherwise process the Customer Data and information provided by the Customer in relation to the Services solely for the purposes of providing the Services in accordance with the Agreement and as set out in clause 20.2.
“Customer Data” means data and content that the Customer, its Affiliates or its End Users provide to the Services or allow or enable to be transmitted to or stored in the Services (such as information via Third Party Services), or which is otherwise generated by the Services as a result of the Customer’s, its Affiliates’ or End Users’ use of the Services. Customer Data does not include analytical or statistical information, or data that is not personal data.
6 INTEGRATED THIRD PARTY SERVICE PROVIDERS
6.1 Bits will make third party services that interact or integrates with the Services (“Third Party Services”) available to the Customer. Save for the fees for Third Party Services, Third Party Services are provided subject to the terms and conditions of the relevant service provider, including without limitation as regards warranties, features, availability and reliability (“Third Party Terms”).
6.2 Third Party Services are specified on the Webpage or in the Platform and will be specified by Bits upon written request. Bits will upon written request provide information about the Third Party Terms, if deemed relevant by Bits for the Customer’s use of the Third Party Services. In the event of a conflict with the terms of the Agreement, the Third Party Terms shall have control with respect to Third Party Services.
6.3 By enabling Third Party Services, the Customer authorises Bits to share the Customer Data with the relevant service provider, as necessary for the Customer’s use of the Third Party Services and the provision of the Services.
6.4 Bits cannot guarantee the continued availability of all Third Party Services and may at any time cease providing any part of the Third Party Services without liability to the Customer.
6.5 The Customer’s use of Third Party Services is at the Customer’s sole risk and discretion. Bits disclaims all warranties, representations, and liabilities for Third Party Services and shall not be liable for damages of any kind related to the Customer’s use of Third Party Services. To the extent permitted pursuant to Third Party Terms, Bits may allow for the Customer to assume the rights and remedies that Bits may have in relation to the service provider of Third Party Services as relevant for the Customer to pursue a legitimate claim regarding such Third Party Services.
7 CHANGES TO THE SERVICES
Bits reserves the right at any time to make any change to, addition to or replacement of any part of the Services. Bits will endeavour to publish information about such change on the Webpage or via the Platform. If such change materially reduces or impairs the overall quality or features of the Services and the Customer objects to the change, the Customer shall promptly and latest within 30 days from the change coming into effect, notify Bits in writing, specifying in reasonable detail in what manner the change is not acceptable to the Customer. If Bits has not within 30 days remedied the issue notified by the Customer in a reasonably satisfactory manner, or otherwise agreed, the Customer shall be entitled to terminate the affected Service for convenience without liability by giving Bits written notice of termination, effective from the end of the month during which notice is given.
8 EVALUATION SERVICES
8.1 Bits may make services that are under development (“Evaluation Services”) available to the Customer. Evaluation Services will be marked as “Beta”, “Evaluation”, “Trial”, “Test” or similar, and are provided for evaluation and testing purposes only.
8.2 The Customer’s use of any Evaluation Services is at the Customer’s sole risk and discretion. Bits disclaims all warranties, representations, and liabilities for Evaluation Services and shall not be liable for damages of any kind related to the Customer’s use of Evaluation Services.
9 RESPONSIBILITIES OF THE CUSTOMER
9.1 The Customer is responsible for (i) providing the information necessary for Bits to perform its obligations under the Agreement in an accurate and timely manner; (ii) the selection and use of Third Party Services; (iii) the integration of its own services and equipment (the “Customer Applications”) with the Services; (iv) the configuration by Customer of Third Party Services and the Services within the Platform; and (iv) notifying Bits as soon as reasonably possible of circumstances that may impact Bits’ provision of the Services.
9.3 The Customer is responsible for all activities that occur under the Customer’s usernames, passwords and accounts or as a result of the Customer’s access to or use of the Services. The Customer shall use the Services only for legal purposes and in accordance with the terms of the Agreement.
9.4 The Customer warrants that (i) it is either the owner of the Customer Data or that it holds a valid permission to the Customer Data from the appropriate rights holder and (ii) it has the right to grant to Bits the right to use the Customer Data as set forth herein, and (iii) the Customer Data or the Customer Applications in no way violate applicable law or risk harming Bits’ trademarks, goodwill or reputation. The Customer acknowledges that it is the Customer’s responsibility to ensure that any results which Bits executes in accordance with the Agreement based on the Customer’s request or the Customer Data do not violate or infringe any third party rights.
9.5 The Customer shall ensure that the Customer Data and the Customer Applications: (i) are free from viruses, trojans, worms, or other malicious software or code; (ii) have agreed formats and specifications; and (iii) do not damage or interfere with the Platform or otherwise the Services.
9.6 Unless otherwise expressly set out in the Agreement, the Customer is in relation to Bits responsible for the Customer Data and the Customer Applications. The Customer shall ensure that the Customer Data isprovided in strict compliance with the DPA, back-up arrangements required by the Customer are provided for and that the Customer downloads any Customer Data stored in the Services upon termination of the Agreement.
9.7 The Customer undertakes not to use or permit use of the Services for any purpose that may (i) menace or harass any person; (ii) involve the transmission or storage of any material that is libellous or unlawful; (iii) violate integrity or privacy rights; (iv) constitute an infringement of Intellectual Property Rights (as defined in clause 18.1) or any other proprietary rights; or (v) otherwise violate applicable laws or regulations.
9.8 The Customer furthermore undertakes not to, and not permit others to, (i) use the Services, or allow access to them, in a manner that circumvents user authentication, security or contractual restrictions or that exceeds the Customer’s authorized use as set forth in the Agreement; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, or otherwise make any portion of the Services available for access by third parties, except as otherwise expressly provided for in the Agreement; (iii) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Services or technologies without consent, unless and then only to the extent expressly permitted by applicable law; or (iv) access or use the Services for the purposes of performing penetration tests, systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activities.
9.9 The Customer is responsible for ensuring compliance of the Customer Applications and the Customer’s use of the Services with all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations.
9.10 The Customer shall defend, indemnify, and hold Bits and its service providers, affiliates, staff and employees harmless from all liabilities, claims and expenses, including but not limited to, legal costs and attorneys’ fees, that are caused by or relatedto the Customer’s failure to comply with the obligations or responsibilities of the Customer set out in this clause 9.
10 FEES AND PAYMENT
10.1 If no specific agreement regarding prices has been made between Bits and the Customer, the Customer shall pay for the Services when Bits has made the Services available to the Customer, and the price for the Services, including for Third Party Services, shall be in accordance with Bits’ prevailing rates for Services according to Bits’ current standard price list.
10.2 Unless otherwise specified for the relevant Service, fixed or subscription fees for the Services will be invoiced monthly in advance and all other fees will be invoiced monthly in arrears. All fees and charges are non-refundable, unless otherwise expressly stated, and quoted exclusive of value added tax and other applicable taxes which shall be added to the invoice at their prevailing rate.
10.3 If the Customer requests a paper invoice, additional invoice fees may apply according to Bits’ at each time applicable price list.
10.4 All invoices shall be paid by the Customer in full not later than thirty days from the date of invoice without any set-off, withholding or deduction. In case of late payment, the Customer shall pay interest in accordance with law. Bits is entitled to suspend the performance of the Services in the event of any past due fees until payment is made.
10.5 Any complaint regarding an invoice shall be in writing and notified to Bits no later than 90 days after the Customer received the invoice. Bits shall have no obligation to handle complaints received outside of the 90 days period.
11.1 In case Bits fails to comply with its obligations set forth in clause 3 (a “Problem”), and the Problem is promptly notified by the Customer in writing to Bits, specifying in reasonable detail the nature of the Problem, Bits shall address or remedy the Problem as set out in the SLA, or if not set out therein, by re-performing the defective part of the Services or taking other appropriate corrective action, at its own discretion and expense, subject to clause 14 in these GTC.
11.2 If the Customer has been unable to use the Services as agreed due to a Problem, the Customer is also entitled to a reduction of the fees payable corresponding to the fees paid for the period during which the Problem has persisted. If the parties have agreed on compensation as part of the SLA, such compensation will apply instead of any other reduction of the fees. If Bits is unable to correct the Problem, either party may terminate the affected Service forthwith without liability and any unused pre-paid portions of the fees for the Services shall be refunded to the Customer. The aforesaid in this clause 11 shall be the only remedies available to the Customer in respect of Problems except in case of fraud or wilful misconduct.
12 MONITORING BY BITS
Bits may, but shall have no obligation to, monitor the Customer's use of the Services and the use and configuration of Third Party Services to verify Customer’s compliance with the Agreement, and for improving the Services and creating insights.
13 SUSPENSION AND DELETION OF CONTENT
13.1 Bits may temporarily suspend the Customer’s passwords, accounts, and access to or use of the Services if the Customer violates any provision in the Agreement, or if in Bits’ reasonable judgment, the Services or any component thereof risk suffering a threat to security or functionality. Bits will inform the Customer prior to such suspension as far as reasonably possible.
13.2 Bits reserves the right to delete the Customer Data provided in breach of the Agreement. Bits shall, subject to mandatory restrictions, as reasonably possible inform the Customer of its intention and the basis for its decision and, save for situations where the breach is material, enable the Customer to provide for correctional measures before deletion of the Customer Data occurs.
14 LIMITATION OF LIABILITY
14.1 Except as expressly set out in the Agreement, the Services are supplied without any other rights or warranties, directly or indirectly, and any rectifications of the Services of any Problems, failures, lacks, errors or the like will be carried out as decided by Bits.
14.2 The total liability of Bits under the Agreement or otherwise relating to the Services shall for each calendar year not exceed 20 per cent of the aggregate of fees paid or payable by the Customer during such year. This limitation shall not apply in cases of fraud or wilful misconduct.
14.3 In case of loss of or corruption to data, Bits’ liability is limited to recover data from the latest available back-up, and solely in relation to Services where Bits has undertaken expressly in writing an obligation to store data.
14.4 To the furthest extent permitted by law, neither Bits nor its affiliates, staff, employees, partners or service providers shall under any circumstance be responsible for any indirect, special, incidental, punitive or consequential damages (including but not limited to damages for loss of business, loss of profits, business interruptions or the like) regardless of whether Bits has been advised of the possibility of such damages.
14.5 Bits shall not be liable for any claim in connection with the Agreement if such claim is brought more than one year after the first event giving rise to such claim is or should have been discovered by the Customer.
14.6 The Customer’s sole remedies in case of Bits’ breach of the Agreement are limited to those remedies set out in the Agreement.
During the term of the Agreement and for a period of two years thereafter, or such longer period that may follow from mandatory law, each party undertakes not to disclose information to any third party regarding the other party’s activities and business which has been disclosed in connection with the Agreement, as well as all other information which may be regarded as business or professional secrets or information that is subject to confidentiality undertaking by law without the other party’s consent or to use such information for any other purpose than fulfilment of the Agreement. Any software or information made available by Bits to Authorised Users or for use of the Services, and any information which a party has indicated as confidential shall always be regarded as a business or professional secret. The duty of confidentiality does not apply to information that a party can prove has come to its knowledge other than through the Services, or which is generally known. Nor does this confidentiality undertaking apply when the receiving party is required to disclose information in accordance with any law, enactment, stock market regulation or decision by governmental authorities. Where a party is obligated to disclose information under law, subject to mandatory restrictions, the disclosing party shall notify the other party thereof prior to disclosure.
16 SOFTWARE DEVELOPMENT KITS
If the Customer as part of the Services is granted access to APIs or software building tools such as code libraries, code building blocks, debuggers or documentation (collectively an “SDK”), such APIs or SDKs are provided under a non-exclusive, non-transferable, limited to the term of the Agreement license to Customer solely for the purpose of building applications to enable use of the Platform or linking, embedding or integrating the Platform with the Customer Applications (refer to clause 9.1).
17 THIRD PARTY SOFTWARE
Besides the Third Party Services, the Services may contain third-party software, technology, and other materials, including open-source software, licensed by third parties (“Third Party Software”) under separate terms (“Third Party License Terms”). Third Party Software may be specified in the Platform user guide, “read me” files, notices, or similar files, and will be specified by Bits upon written request. In the event of a conflict with the terms of the Agreement, the Third Party License Terms shall have control with respect to Third Party Software. If Third Party License Terms require Bits to furnish Third Party Software in source code or other form, Bits will provide such upon written request and payment by the Customer of any handling charges.
18 INTELLECTUAL PROPERTY AND DATA
18.1 Bits, or any third party from whom Bits derives its right, owns and shall retain all rights, title and interest, including any registered or unregistered, existing or future prospective intellectual property rights, including trademarks, patents, patterns, designs, software, copyright, know-how and other similar intellectual property rights, whether registerable or not (“Intellectual Property Rights”), in and to the Services. Nothing in the Agreement shall be construed as granting or conferring, fully or partly, any such rights, title or interest to the Customer, unless otherwise expressly stated.
18.2 All data generated as a result of Bits’ provision of the Services or the Customer’s use thereof shall be the property of Bits, save for the Customer Data or as otherwise expressly provided for in the Agreement or pursuant to mandatory law.
19 INDEMNIFICATION BY BITS
Bits will defend the Customer against any claim, demand, suit, or proceeding made or brought against the Customer by a third party alleging that the Customer’s use of any part of the Services in accordance with the Agreement infringes upon or misappropriates such third party’s intellectual property rights (a “Claim”), and will indemnify the Customer from any damages, attorney fees, and costs finally awarded against the Customer as a result of, or for amounts paid by the Customer under a settlement approved by Bits in writing of, a Claim, provided that the Customer (i) promptly gives Bits written notice of the Claim; (ii) allows Bits sole authority in the defence and settlement of the Claim; and (iii) gives Bits reasonable assistance, at Bits’ expense. The above defence and indemnification obligations do not apply if a Claim arises from the Customer’s breach of the Agreement, or from the use of Third Party Services, Evaluation Services, the Customer Data or the Customer Applications.
20 SUGGESTIONS AND IMPROVEMENTS
20.1 Bits welcomes feedback regarding the Services. To the extent the Customer provides such feedback, the Customer grants to Bits a free, transferable, sub-licensable, non-exclusive, irrevocable, worldwide right to use in any way such feedback without restrictions.
20.2 Bits may, by rendering the Customer Data anonymous, in a manner that ensures that neither the Customer, any Affiliate nor any End User can be identified, retain and use such anonymised data to analyse, improve or develop the Services.
21 TERM AND TERMINATION
21.1 The Agreement is valid as per clause 1.2 and, subject to any notice or fixed period set out in clause 21.2, for as long as the Customer is using the Services, or until the Agreement is otherwise terminated pursuant to the Agreement.
21.2 Unless otherwise expressly stated in the Agreement, all subscription-based Services can be terminated by either party by giving the other party at least 30 days prior written notice of termination. If the parties have agreed on a fixed term for such Services, termination will not become effective before the end of the agreed fixed term.
21.3 Without prejudice to any remedy a party may have against the other party for breach or non-performance under the Agreement, and subject to clause 11.2, either party shall have the right to terminate the Agreement with immediate effect in accordance with the following:
(i) If the other party commits a material breach of an obligation under the Agreement and, if the breach is capable of remedy, fails to remedy the said breach within thirty days following the receipt of written notification referring to this clause; or
(ii) If the other party is placed into insolvent liquidation, enters into negotiations regarding company reorganization or composition or is otherwise insolvent. Notice of termination shall be given without undue delay.
22 CONSEQUENCES OF TERMINATION
22.1 Upon the expiration or termination of the Agreement, for whatever reason, (i) Bits shall have no obligation to provide the Services except for such Services that the parties have agreed shall be provided following the termination of the Agreement, and (ii) the Customer shall immediately cease to use Platform, but shall be afforded thirty days after the effective date of termination to use the Platform for the sole purpose of downloading the Customer Data.
22.2 Bits shall have no obligation to retain the Customer Data beyond such thirty days period, except as otherwise expressly provided for elsewhere in the Agreement.
22.3 The expiration or termination of the Agreement, for whatever reason, shall not affect the respective rights and liabilities of each of the parties hereto accrued on or before termination. Provisions containing rights and obligations which to their nature are such that they should remain in force also after the expiry of the Agreement shall remain valid and in force until the expiry of such right or obligation, including without limitation as regards intellectual property and limitations of liability.
23 FORCE MAJEURE
A party shall be discharged from liability for a failure to perform an obligation under the Agreement due to a circumstance beyond the party's reasonable control. Circumstances giving rise to such discharge are war or warlike acts, restrictions by public authorities, fire, strike, blockade, prohibition, epidemics, pandemics, telecommunications failures, denial of service attacks or similar malicious occurrences or other similar events, provided that the affected party without undue delay gives written notice to the other party of such event. Failure to pay agreed fees shall however not constitute a circumstance beyond a party's control.
24 AMENDMENTS AND CHANGES TO THE AGREEMENT
24.1 Changes and additions to the Agreement shall be in writing and duly executed by the parties.
24.2 Notwithstanding the foregoing, the terms and conditions set out in the Agreement may be amended or changed by Bits. Any such substantive amendments and changes shall be notified to the Customer in writing (e.g. via e-mail or information via the Website or the Platform) reasonably in advance of coming into effect. If the change is of detriment to the Customer and the Customer does not accept such change, the Customer may terminate the Agreement for convenience without liability by written notice to Bits before the change enters into force, effective at the date of the change entering into force.
24.3 Notwithstanding the foregoing in this clause 24, Bits may change the standard pricelist for the Services by notification (e.g. via e-mail or information via the Website or the Platform) at least 60 days prior to the change coming into effect. Such change will not affect the fixed or subscription fees for Services subject to a fixed term for the duration of such term.
25.1 Any notice to be given in writing by a party under the Agreement shall be sent by e-mail, registered mail or courier to the parties’ addresses, as listed in the main document of the Agreement or later changed.
25.2 The notice shall be deemed to be valid and effective (i) if sent by e-mail if the recipient has confirmed receipt of such e-mail,
(ii) at the time of delivery as confirmed in the mail services records if sent by registered mail, (iii) upon receipt when sent by courier.
26 GENERAL PROVISIONS
26.1 The Agreement constitutes the entire agreement between the parties regarding all of the issues set forth in the Agreement and supersedes any and all prior written or verbal undertakings and agreements.
26.2 The parties are independent legal entities which act and trade under their own names, for their own accounts and on their own risks. Except as provided for herein, neither party may in any respect represent the other party or enter into any agreement or other commitments on the other party’s behalf.
26.3 Neither party may assign its rights and/or obligations under the Agreement without the prior written consent of the other party. Bits may however freely assign its rights and obligations hereunder to an affiliate of Bits. Bits may also freely assign the right to receive payment hereunder.
26.4 Failure of either party to enforce or exercise, at any time or for any period, any term of the Agreement, does not constitute, and shall not be construed as, a waiver of such term and shall not affect the right later to enforce such term or any other term herein contained.
26.5 Should any clause in the Agreement or part thereof be void or invalid, the other provisions of the Agreement shall remain in force and the clause may be amended to the extent such invalidity materially affects the rights or obligations of either party under the Agreement.
27 GOVERNING LAW AND DISPUTES
27.1 The Agreement shall be governed by and construed in accordance with the laws of Sweden without application of its conflict of laws principles.
27.2 Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish. The Rules for Expedited Arbitrations shall apply, unless the SCC Institute 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 Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators. The parties undertake, indefinitely, not to disclose the existence or contents of any judgment or decision related to or in connection with the Agreement or any information regarding negotiations, arbitral proceedings or mediation in connection therewith. This confidentiality undertaking shall not apply in relation to information which a party is required to disclose by law, pursuant to an order of a governmental authority, pursuant to applicable stock exchange rules, or which may be required for the enforcement of a judgment or an award.