Warpin Media AB, 559067-4684, (“Warpin”) offers its customers (“Customers” or a “Customer”) access to and use of the Xelevate platform as part of its Service (as defined below). These general terms and conditions (hereafter the “Terms”) for the Xelevate platform set out the terms on which governs the supply of the Service by Warpin to the Customer. Warpin and the Customer are hereafter also referred to individually as a “Party” and collectively as “Parties”.
These Terms shall be deemed accepted by the Customer and become effective upon the Customer’s commencement of use of the Service or by signing an agreement with Warpin with a reference to these Terms. These Terms, together with any agreement entered into between Warpin and the Customer (the “Main Agreement”) constitutes the “Agreement”. Thus, these Terms form an integral part of the Agreement and any capitalized words and/or expressions used herein shall have the meaning defined to them in the Agreement, and vice versa. In case of any discrepancy between these Terms and an eventual Main Agreement, the Main Agreement shall prevail.
The Service is provided to the Customer by Warpin and consists of virtual reality courses provided on the Xelevate platform, which may be taken by individuals (individually referred to as a “User”) wearing VR headsets. The Service consists of both “as is” courses which may be white labeled for a certain Warpin customer, as well as courses tailored for a specific Warpin customer (the latter referred to as “Customer Tailored Service”).
Warpin undertakes to perform the tasks for which it is responsible in conformity with the Agreement with due care and with the professional skills reasonably expected from a service provider.
The Customer is responsible for all use of the Service by its Users and shall comply with all applicable laws and regulations in connection with the Customer’s use of the Service, including those related to data privacy and the transmission of personal data, as well as these Terms. The Customer shall further ensure that Users who are using the Service are aware of their surroundings.
The Customer shall be responsible for ensuring that the Service fulfils the Customer’s intended purpose. Warpin specifically excludes any liabilities and warranty for a particular purpose.
The Customer shall immediately notify Warpin of any unauthorized use of the Service or any other known or suspected breach of security.
Warpin agrees in full consideration of the payment of the Service Fee by the Customer to provide access to the Service on a non-exclusive basis pursuant to the terms and conditions set forth in the Agreement.
The Customer shall not, and shall ensure that Users do not, attempt to gain access to any parts of the Service to which the Customer has not acquired access rights, nor will the Customer attempt to modify, copy, decompile, adapt, reverse engineer or otherwise attempt to derive source code of the Service or any computer software programs the Service is based upon.
Warpin may, on the Customer’s request, and to a fee set forth in Warpin’s price list as effective on the date of order, assist the Customer in installing the Service on any of the Customer’s devices.
Warpin shall provide the Customer technical and use related support to the fee set forth in Warpin’s price list effective on the date of order. Warpin shall provide support during Warpin’s normal working hours on Swedish business days at 08:00 – 16:00 (CEST). Warpin shall provide the support by means of email or telephone, whereby the following contact details shall be used:
For the avoidance of doubt, Warpin shall not be obliged to provide support, assistance or maintenance concerning third party equipment, software, services or to the Customer’s customers.
Warpin shall be entitled to make changes to the Service due to data security risks or due to technical improvements to the Service. In such case, Warpin shall inform the Customer of the change in reasonable time before making changes or, if this is not reasonably possible, without delay after the reason for change has become apparent. Warpin may make minor changes or changes which will improve the Service without notifying the Customer beforehand. The Customer acknowledges that it may lose access to certain parts of the Service if a newer version of it is released.
Warpin shall have the right to suspend delivery of the Service for scheduled maintenance breaks as informed by Warpin from time to time. Warpin shall also have the right to suspend delivery of the Service due to (i) installation, change or maintenance work of general data network outside Warpin’s control, or (ii) severe data security risk to the Service or if required by mandatory law or competent authorities. Warpin shall notify the Customer of the suspension and the duration of the suspension in advance or, if this is not reasonably possible, without delay after Warpin has learned of such matter. Warpin does not guarantee that the Service will run flawlessly at all times and the Customer recognizes that some downtime may be expected. Warpin shall not be held liable for downtime, nor other technical complications caused by the Customer, or any third party.
Warpin shall be responsible for making back-up copies of information transferred to the Service by the Customer or for the Customer’s benefit (the “Customer Data”). Warpin shall be responsible for making back-up copies once during Warpin’s normal working day and for maintaining the back-up copies in suitable manner in conformity with reasonable industry standards.
If the Customer Data is deleted, lost, altered or damaged by using the Customer’s own user ID or the Customer has otherwise by its own action deleted, lost, altered or damaged the Customer Data, Warpin shall have the right to charge for the recovery of such Customer Data on the agreed pricing principles.
The Customer shall, unless otherwise agreed between the Parties, be responsible for acquiring and maintaining the functional status of the Customer equipment that the Customer needs to use the Service as instructed by Warpin (including relevant hardware, software and Internet connection). The Customer shall be responsible for the protection of Customer’s data environment and comparable costs related to use of the Service.
The Customer is responsible for having proper Internet connectivity for the use of the Service and acknowledge that without such proper connectivity limitations in the Service’s functionality might occur.
The Service Fee and other eventual prices for the Service are specified in the Main Agreement. If a price for a particular product or a service has not been agreed in the Main Agreement or otherwise, the price in Warpin’s price list effective on the date of order shall apply to the product or service in question. All prices are expressed excluding VAT.
All invoices shall be in SEK. Value added tax shall be added to the prices in accordance with the then current regulations. Should the amount of public charges determined by the authorities, or the collection basis of such charges, change due to changes in regulations or taxation practice, the prices specified in the Agreement shall be revised correspondingly.
Warpin may, if and when the Agreement has been in force for twelve (12) months, change the prices for the Service by giving the Customer prior written notice thirty (30) days in advance. The price change has no effect on payments which are due before the change becomes effective. Should the Customer not accept the price change, the Customer has the right to terminate the Agreement by giving Warpin a prior written notice fourteen (14) days in advance prior to the date of which the price change enters into force.
All fees will be invoiced monthly in advance (except for any accrued support fees which will be invoiced the subsequent month). The terms of payment are thirty (30) days net from the date of the invoice. Interest on overdue payments shall be ten (10) per cent.
If any payment by the Customer is delayed by more than thirty (30) days from the due date despite a written reminder, Warpin shall be entitled to suspend its performance without any liability until the Customer has fulfilled its payment obligations under the Agreement.
Warpin shall have the right to subcontract its obligations under this Agreement. Warpin shall be liable for the work of its subcontractor as for its own.
Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential and may not use such material or information for any purposes other than those set out in the Agreement. The confidentiality obligation shall, however, not apply to material or information, (a) which is generally available or otherwise public; (b) which the receiving Party has received from a third party without any obligation of confidentiality; (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; (d) which the receiving Party has independently developed without using material or information received from the other Party; or (e) which the receiving Party is required to provide due to law or regulation by the authorities.
The rights and obligations under this Section shall survive the termination or expiration of the Agreement and shall remain in force for a period of five (5) years from the Effective Date.
Notwithstanding anything to contrary in Section 12 (Confidentiality), both Parties may use the other Party’s graphical logo and Customer name on its website and in marketing materials to represent that the other Party is a customer or supplier, as applicable, and shall respect any procedures and/or guidelines provided by the other Party for the use of such graphical logo.
A Party shall not be liable for the consequences resulting from delay or non-performance of a contractual obligation, if the delay or non-performance was caused by or unreasonably affected by circumstances, which the Party was unable to influence and was unable to take into account at the time of concluding the Agreement and the consequences of which the Party could not have reasonably avoided or overcome. Such circumstances may include, but are not limited to, acts of government in its sovereign or contractual capacity, fires, floods, extreme weather, epidemics, quarantine restrictions, strikes, lock-outs and industrial disputes, riots, acts of terror or specific threats of terrorist activity, shortage of transportation or energy. Strike, lock-out, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the object or a party to such an action.
A Party shall notify the other Party in writing without delay of a force majeure event. The Party shall correspondingly notify the other Party of the termination of a force majeure event.
With the exception of Customer Data, Warpin represents and warrants that the Service as used pursuant to the Agreement, and Warpin’s instructions does not infringe copyrights enforceable in the EU.
All right, title and interest in and to all copyrights, patents, trademarks and other intellectual property rights of whatever nature including but not limited to know-how and trade secrets (“Intellectual Property Rights”) to the Service and any amendments, modifications or new versions thereto shall belong to Warpin. The product names associated with the Service are service marks and trademarks of Warpin or third parties, and no right or license is granted to use them unless otherwise stated in the Agreement. This Agreement does not grant the Customer any rights of ownership in or related to the Service or the Intellectual Property Rights owned by Warpin. The Customer acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest is granted.
The Intellectual Property Rights and the title to the Customer Data shall belong to the Customer. If the Customer has purchased a Customer Tailored Service, the Customer maintains, for the avoidance of doubt, the full title to all information provided to Warpin by the Customer for enabling the development of a module in the Service. Other Intellectual Property Rights included in such Customer Tailored Service shall vest in Warpin.
The Agreement has no effect on the Intellectual Property Rights each Party had prior the Effective Date. The Agreement shall not give a Party any direct, indirect or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to the other Party.
The Customer may from time to time provide suggestions, comments or feedback (“Feedback”) with respect to the Service or confidential information provided originally by Warpin. The Customer agrees that all Feedback is voluntary and, even if marked as confidential (unless subject to a separate written agreement), will not create a confidentiality obligation for Warpin. Warpin will be free to use, disclose, reproduce, license or otherwise distribute such Feedback, without obligation or restriction of any kind with relation to a Party’s Intellectual Property Rights or otherwise. Notwithstanding the above, no right shall be granted to any Intellectual Property Rights that were in existence prior to the Effective Date.
Warpin has the right to use the Customer Data only for the purposes of the Agreement, including but not limited to the development of the Service and to carry out statistical analysis.
The Customer shall be responsible for Customer Data and for ensuring that the Customer Data does not infringe third party intellectual property rights or violate any legislation in force at the time. In case of breach of the aforementioned, the Customer will be responsible for, and will indemnify and hold Warpin harmless from all claims, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) made against or incurred by Warpin.
The Agreement shall become effective on the last signature of the Agreement and shall continue for as long as the Customer uses the Services. The term and notice period for each part of the Services are set forth in the Main Agreement.
If the fulfillment of this Agreement has been delayed for more than one (1) month due to a force majeure event, each Party shall have the right to terminate the Agreement with immediate effect by notifying the other Party thereof in writing. In such an event neither Party has right to claim damages for such termination.
Each Party shall have the right to terminate this Agreement with immediate effect upon written notice to the other Party if: i) the other Party commits a material breach of any of the terms and conditions of this Agreement and fails to remedy such a breach within thirty (30) days of the other Party’s written notice thereof; or ii) the other Party is insolvent, declared bankrupt, is put into liquidation, sells all of its assets, ends its business or otherwise ceases with its payments.
The termination or expiry of the Agreement has no effect on the rights and obligations of the Party accrued prior to the termination or expiry.
Warpin provides the Service and any specifically agreed related services, if any, “as is” without any warranty of any kind either express or implied, including but not limited to warranties of merchantability, fitness for purpose or title.
The aggregate total liability of Warpin towards the Customer in respect of any cause of action relating to or arising out of the Agreement shall not exceed the lower of i) the total value of the Service; and ii) the amount paid by the Customer to Warpin under the Agreement during the last six (6) months prior the cause for the claim has arisen.
Neither Party shall be liable to the other Part or any third party for any special, indirect, incidental or consequential damages, arising out of or related to this Agreement, including, without limitation, damages resulting from delay of delivery or from loss or profits, data, business or goodwill .
The limitations of liability shall not apply to damages caused by i) willful misconduct or gross negligence; or ii) breach of confidentiality provisions in Section 12 (Confidentiality) or Section 15 (Intellectual Property Rights).Furthermore, the Customer shall indemnify and hold Warpin harmless against any claims directed towards Warpin due to any infringement or breach of third-party rights by the Customer.
The Customer may not assign the Agreement or any of its rights or obligations hereunder to any third party without Warpin’s prior written consent.
Applicable Law; Dispute Resolution
The Agreement and all matters arising out of or in connection with the Agreement shall be interpreted, construed and governed exclusively in accordance with the laws of Sweden without reference to its choice of law rules.
In the event no settlement can be reached by means of negotiations, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of 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 the Parties agree otherwise.
The Parties have nevertheless right to claim for outstanding receivables under this Agreement at the public courts of Sweden, with Stockholms tingsrätt as first instance.
If any provision in this Agreement is found or becomes invalid, unlawful, or unenforceable to any extent, the provision in question will be severed from the remaining provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, proposals, undertakings, and other representations and communications between the Parties.
Unless otherwise stated herein, no modification of the Agreement will be valid unless in writing. Warpin may however revise these Terms from time to time. If this is done, such revised Terms will supersede prior versions. Unless stated otherwise, revisions shall be effective upon the effective date informed in connection with the amended Terms. Warpin shall provide the Customer with thirty (30) days advance notice by email of any changes to these Terms. If the Customer does not agree to the changes, the Customer has the right to terminate the Agreement by notifying Warpin thereof in writing within fourteen (14) days from the date of the said notice. If the Customer decides to terminate the Agreement, the Agreement shall terminate at the end of the calendar month following the month during which the Customer’s notice was received by Warpin (during which period the old Terms shall apply).