1. Background

1.1 These general terms and conditions (the “Terms”) describe the legal terms and conditions that apply to the use of the Supplier´s service the Calculation Tool.

1.2 Concepts starting with capital letters are defined at the end of these Terms, in the appendix “definitions”.

2. General Information About the Calculation Tool

2.1 The Calculation Tool is a climate footprint calculator for food products and food processes that offers a high level of precision for climate footprint calculations, combined with consistency between calculations that allow for fair comparisons between products. The Calculation Tool also allows for time-efficient climate footprint calculations that make it possible to label food products with climate footprint data. 2.2 The Supplier provides the Calculation Tool to the Customer as a subscription-based license to access and use the Calculation Tool. The Calculation Tool is provided in accordance with the Agreement, as specified specifically in the Main Agreement. The Customer chooses which of its products that the Calculation Tool shall be used for by providing information about the products.

2.3 When the Customer purchases the Calculation Tool, the Customer is given a right to use the Calculation Tool including the Report during the period for which the Agreement applies. The right is non-exclusive, time-limited, and non-transferable and applies to the Customer´s own business unless otherwise agreed in the Main Agreement. The right applies provided that the Customer fulfills its payment obligations and other obligations under the Agreement.

2.4 The Supplier shall enable the Customer to use the Calculation Tool for each Product for which the Customer has provided complete information about. The Customer may request the Supplier’s assistance to provide information. Complete information consists of:
a) information about the ingredients that the Product consists of; and
b) information about the ingredient´s country of origin.

2.5 The Customer is free to provide additional information regarding the Product and such information shall be included in the calculations made when providing the Calculation Tool. If no additional information is provided, the Supplier shall as far as possible use generic data based on similar products or based on freely available approximate, generic but representative information.

2.6 If the Customer pays to be able to use information from the use of the Calculation Tool in external communication, the Customer is only allowed to communicate that the Supplier has calculated the climate footprint but never state that the Supplier in any other way supports the product, for example by indicating that the Supplier ranks the Customer´s product as better than other products.

2.7 The Supplier is always trying to improve the Calculation Tool and may occasionally make improvements, additions and changes to the Calculation Tool as well as changes to the instructions regarding how the Calculation Tool shall be used.

3. The Supplier’s Obligations

3.1 The Supplier shall make the Calculation Tool available in a qualified, technically competent, and professional manner. The Supplier shall provide maintenance of the Calculation Tool and backup of the Data.

3.2 The Calculation Tool shall be considered available when the Customer receives the login details, i.e. can access the dashboard within the Calculation Tool.

3.3 Unless otherwise agreed, the Supplier shall aim to make the calculation of the climate footprint and enable the Customer to use the Calculation Tool regarding the specific Product as soon as possible after the Customer has provided complete information about the Product.

3.4 The Supplier shall provide a Label for each Product that has been calculated and for which the Customer has stated it wishes to use a Label. The Label can be used by the Customer in all external communication. The Label shall be provided as soon as possible after the Customer requests to receive a Label.

3.5 The Supplier has no obligation or responsibility for the results presented within the Calculation Tool if the Customer has provided misleading or fabricated information about the Product.

4. Availability

4.1 The Supplier’s intention is that the Calculation Tool shall be fully available during the term of the Agreement.

4.2 Insignificant inconveniences shall not result in the Calculation Tool being unavailable. In particular, the Calculation Tool shall not be deemed unavailable when:
a) the Supplier performs scheduled upgrades, of which the Customer has been informed no less then forty-eight (48) hours in advance; or
b) the Calculation Tool is down due to circumstances beyond the Supplier’s control, including, but not limited to, loss of network or communication.

4.3 The Supplier shall rectify unavailability as soon as possible after becoming aware of such unavailability. The Supplier’s obligation to remedy the unavailability does not apply if the remedy would cause inconvenience and costs to the Supplier that are unreasonably large in relation to the significance of the unavailability for the Customer.

4.4 The Supplier´s responsibility for the provision of the Calculation Tool in accordance with what is stated in section 3 and 4 constitutes the Supplier’s total commitment and responsibility in relation to the Customer.

5. Prices and Payment

5.1 To use the Calculation Tool the Customer shall pay a monthly fee and a fee per add on that the Customer uses, as stated in the Main Agreement in accordance with the Supplier´s from time to time applicable prices, if the parties have not agreed otherwise.

5.2 Unless otherwise agreed, the Supplier has the right to adjust prices at any time. If the Customer is not satisfied with such adjustments the Customer can always terminate the Agreement as stated in section 7.1. Adjustments shall have effect on any coming term for which the Agreement has been renewed according to section 7.1. If the Supplier’s notification of an adjustment in the price is made less than ninety (90) days before renewal of the Agreement the Customer has the right to end the Agreement. In addition, the Supplier may at any time and with effect on the next payment adjust prices due to changes in regulations, taxes, fees or similar circumstances beyond the Supplier’s control.

5.3 All fees are invoiced yearly in advance, unless otherwise agreed in writing. The first invoice is sent when the Parties have concluded the Agreement.

5.4 Payment of invoices shall be made within twenty (20) days from the invoice was issued, unless otherwise agreed in writing.

5.5 If payment is late or incomplete, the Supplier is entitled to interest on overdue payment in accordance with applicable Interest Act and a late payment charge and/or a debt collection fee according to applicable laws.

5.6 If full payment is not received by the Supplier within ten (10) days from the date on which a written payment reminder was sent by the Supplier and the Customer has not on reasonable grounds disputed the claim of payment, the Supplier has the right to (i) immediately suspend the use of the Calculation Tool and/or (ii) terminate the Agreement in accordance with section 7.3.

6. The Customer´s Obligations

6.1 Unless otherwise agreed, the Customer is responsible for the following:
a) to provide complete information about the ingredients that the Product consists of and about the ingredient´s country of origin;
b) not modify the Label or the Report in any way;
c) any act of its employees, consultants or other persons appointed by the Customer to use the Calculation Tool;
d) to maintain the equipment and software required to use the Calculation Tool, maintain the security of its IT-environment and to always use the Calculation Tool in accordance with the Supplier’s Documentation;
e) to provide the Supplier with information about the Customer and its use of the Calculation Tool that is reasonably required by the Supplier to be able to provide the Calculation Tool and make improvements, additions and changes to the Calculation Tool;
f) make sure that the Data is accurate and to take actions to limit Data which lacks quality and/or legality;
g) notify the Supplier immediately if the Calculation Tool is unavailable; and
h) to use the Calculation Tool in accordance with all applicable laws, regulations and guidelines issued by a competent authority.

6.2 The Customer shall not use, copy, modify or give access to the Calculation Tool to a greater extent than has been agreed or is considered within the intended use of the Calculation Tool.

6.3 The Supplier is not responsible for changes in the Calculation Tool that occur because of the Customer’s actions.

6.4 If the Customer does not comply with the terms of the Agreement and does not rectify within ten (10) days of the Supplier notifying the Customer of the non-compliance, the Supplier is entitled to suspend the Calculation Tool until rectification is made. The Customer shall indemnify the Supplier for any costs or claims by a third party based on the Customer´s use of the Calculation Tool in violation of the terms of the Agreement.

7. Term and Termination

7.1 If the parties have not agreed otherwise, the Agreement becomes effective when the Main Agreement has been entered into. Thereafter the Agreement shall be renewed automatically one (1) year at a time, until terminated by any party. Such termination shall be made in writing and at least ninety (90) days before a renewal.

7.2 Each party has the right to terminate the Agreement with immediate effect if: a) the other party has committed a material breach of the Agreement and does not take full correction of such breach within thirty (30) days of the other party giving written notice thereof; or b) the other party is declared bankrupt, enters into liquidation, is the subject of a corporate reorganization, cancels its payments or can otherwise reasonably be assumed to have become insolvent.

7.3 The Supplier has the right to terminate the Agreement with thirty (30) days’ notice if:
a) a third party supplier or subcontractor that is necessary for providing the Calculation Tool terminates its agreement with the Supplier and there is no other corresponding supplier on the market, and it is therefore not possible for the Supplier to continue to provide the Calculation Tool in accordance with the Agreement; or
b) in the event of the Customer´s breach of any of its obligations pursuant to section 5.6 or 6, or the Supplier cannot meet Customer’s change request of the documented instructions regarding processing of personal data.

7.4 When the Agreement has expired or been terminated, the Customer shall immediately cease to use the Calculation Tool and both parties shall return or delete such information that is covered by confidentiality in accordance with section 10 including Documentation.

7.5 The Supplier shall, upon the Customer´s written request, return the Data in a generally accepted format chosen by the Supplier. The Customer must reimburse the Supplier for the reasonable costs the Supplier has for the return.

8. Amendments

8.1 All amendments to these Terms shall be made in writing and signed by both parties except as set forth below in this section 8.

8.2 The Supplier has the right to unilaterally amend the Terms – after giving a three (3) months’ written notice – if the grounds for the Terms changes significantly as a result of changes in law, constitution, by authority decision or changes in other circumstances outside of the Supplier’s control. The Customer has the right to terminate the Agreement with immediate effect if such change entails a significant inconvenience for the Customer.

9. Personal Data

9.1 Within the scope of fulfilling the obligations under the Agreement, the Supplier will process personal data on behalf of the Customer. Within the scope of such processing, the Customer is the controller for personal data and the Supplier is the processor.

9.2 For this purpose, the parties have entered into a DPA.

10. Confidentiality

10.1 Both parties hereby agree not to, without the other party’s prior written approval, publish or otherwise disclose to third parties any information relating to the other party’s business which is or can be reasonably presumed to be confidential, with the exemption for:
a) information that is or becomes publicly known, except through a breach of this Agreement by the receiving party;
b) information that is public to the receiving party from a third party without obligation of confidentiality;
c) information that was known to the receiving party prior to receipt from the disclosing party, without obligation of confidentiality; or
d) the disclosure or use of information is required by law, regulations or any other regulatory body. In the event of such disclosure, the disclosing party shall, if possible, notify the other party before such disclosure takes place.

10.2 Specifically, the Supplier shall keep any Data secret and ensure that employees only have access to the Data if it is necessary to perform the services, e.g. support- and maintenance (“need to know basis”).

10.3 Information that a party has stated as confidential shall always be regarded as confidential information.

10.4 Each party is responsible for compliance with this confidentiality undertaking by its respective subcontractors, consultants and employees. The confidentiality undertaking under this section applies during the term of the Agreement and for a period of three years after the Agreement has expired. The confidentiality undertaking for Data applies for an indefinite period of time.

10.5 Specific non-disclosure agreements shall, upon request from the Customer, be signed by the Supplier’s employees and suppliers and its employees, before any work is conducted. The non-disclosure agreements shall be drafted by the Supplier.

11. Intellectual Property Rights

11.1 The Supplier or its licensors hold all rights, including intellectual property rights, to the Calculation Tool and the Documentation (including, without limitation to, such development or improvements specifically performed on behalf of the Customer) including software and source code. Nothing in the Agreement shall be construed as a transfer of such rights, or any part thereof, to the Customer.

11.2 The Customer has all rights, including intellectual property rights, to the Data. During the term of the Agreement, the Supplier may use the Data and data related to the Customer´s use of the Calculation Tool (personal data excluded) in order to provide the Calculation Tool to the Customers successfully.

11.3 The Supplier shall, subject to the limitation of liability, compensate the Customer for damage suffered by the Customer as a result of claims from third parties regarding infringement of such third party’s intellectual property rights.

11.4 The Supplier´s obligation to indemnify the Customer pursuant to this section 11 applies only provided that the Customer:
a) without undue delay notifies the Supplier in writing of claims made against the Customer;
b) allows the Supplier to control the defense and make decisions alone in all related settlement negotiations; and
c) acts in accordance with the Supplier´s Documentation and cooperates with and assists the Supplier to the extent that the Supplier reasonably requests.

11.5 If it comes to the Supplier´s knowledge or is finally settled that there is an infringement of a third party´s intellectual property rights, the Supplier may choose to either:
a) ensure the Customer a continued right to use the Calculation Tool;
b) change the Calculation Tool so that infringement no longer exists;
c) replace the Calculation Tool, or any part thereof, with any other non-infringing equivalent service; or
d) terminate or temporarily cease to provide the Calculation Tool and, after deducting the Customer´s reasonable benefit, repay the Customer´s fee paid for the Calculation Tool, without interest.

11.6 The Supplier has the right to freely use the know-how, professional knowledge, experience, and skills that the Supplier acquires through or in connection with providing the Calculation Tool.

11.7 The Supplier´s obligations under this section 11 are conditional upon the Customer’s use of the Calculation Tool exclusively in accordance with the terms of the Agreement.

11.8 This section 11 constitutes the Supplier´s total liability towards the Customer for infringement of third parties´ intellectual property rights.

12. Limitation of Liability

12.1 The Supplier is – with the limitations set out below – liable towards the Customer for damages caused due to the Supplier´s negligence.

12.2 The Calculation Tool is provided on an “as-is” basis and merely used to calculate and overview the climate footprint of specific products, without any express or implicit promises or guarantees, e.g. with regards to the climate work of the Customer or increases in sale as a result from using the Calculation Tool.

12.3 In the event the Calculation Tool is unavailable or has an error that the Supplier has not fixed within a month, the Customer’s sole and exclusive remedy shall be a reduction of the monthly fee for using the Calculation Tool. Such reduction shall be related to the month in which the error manifested itself and shall be in proportion to the effect for the Customer. The maximum monthly reduction shall be 50 % of the price the Customer should have paid for the relevant time period. The reduction shall, if the Customer has made a claim in time and proven the error or unavailability, be made on coming payments or if the Customer shall not make any further payments, by a payment to the Customer.

12.4 Notwithstanding the above, the Supplier shall under no circumstance be liable for indirect damages, including damages caused by loss of profit, revenue, anticipated savings or goodwill, loss of information or Data, loss due to operational, business, power or network interruptions, loss due to modifications of the Calculation Tool made in accordance with Customer´s instructions or performed by anyone other than the Supplier, as well as any claims due to the Customer´s possible liability to third parties; without prejudice to section 11.3.

12.5 The Supplier’s total and aggregate liability under the Agreement regardless of the number of incidents, is limited to the amount paid by the Customer during the twelve (12) months prior to the time the damage occurred.

12.6 The Customer shall, in order to not lose its right, submit a claim for compensation in writing no later than ninety (90) days after the Customer noticed or should have noticed the actual damage or loss, however no later than six (6) months from when the loss arose.

13. Force Majeure

13.1 Each party shall be relieved from liability for damages for a failure to perform any obligation under the Agreement to the extent that the due performance is prevented by reason of any circumstance beyond the control of the party, such as internet limitation or slow connection, power outages, network intrusion, lawsuits, pandemics, labor disputes, loss of communications, mobilization or large-scale military recruits, ordinances, rationing of fuel, goods or energy, and defects and delays in deliveries from subcontractors caused by any party outside the party´s control provided that the other party is notified immediately.

13.2 The parties have the right to terminate the Agreement if force majeure continues or will obviously continue for more than sixty (60) days.

14. Miscellaneous

14.1 The Supplier is entitled to assign subcontractors to accomplish its obligations under the Agreement. The Supplier is liable for the work of the subcontractors as well as its own.

14.2 The primary means of communication between the parties concerning the Calculation Tool shall be email.

14.3 The Agreement constitutes the parties´ complete settlement of all matters related to the Agreement. All written or oral commitments and commitments that preceded the Agreement will be replaced by the content of the Agreement.

14.4 The documents described in the definition of the Agreement shall have mutual priority in the following order:
(i) the Main Agreement,
(ii) the Terms and
(iii) any annexes.
Any annexes shall have priority over each other in accordance with the order set out in the Main Agreement.

14.5 The Agreement may not be transferred to a third party without the other party´s prior written consent. However, in a situation of transferring the Supplier’s operation or a part thereof, the Supplier is admissible to transfer the Agreement to a third party. The Supplier is also admissible to transfer the Agreement to companies within the same corporate group as the Supplier.

14.6 The failure of a party to exercise any right under the Agreement or the failure to point out any particular condition attributable to the Agreement shall not constitute a waiver by a party of such right.

14.7 The following sections apply even after the termination of the Agreement: 7 (Term and termination), 10 (Confidentiality), 11 (Intellectual Property Rights), 12 (Limitation of Liability) and 15 (Governing Law and Disputes).

15. Governing Law and Disputes

15.1 The Agreement shall be governed by and construed in accordance with the laws of Sweden.

15.2 Any dispute arising out of or in connection with the Agreement shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”).

15.3 The Rules for Expedited Arbitrations shall apply, unless the SCC Institute, considering the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.

15.4 The place of arbitration shall be Gothenburg. The language of the proceedings shall be Swedish and Swedish law shall apply to the dispute. Regardless of what has just been said, the Supplier shall always have the right to apply for an injunction to payment or bring an action regarding non-payment in a general court.

DEFINITIONS

”Agreement” means the contractual agreement between the parties no matter in what form, including the Main Agreement, these Terms, the DPA and any appendices mentioned in the Main Agreement, in the Terms or the DPA.

“Calculation Tool” means the service provided to the Customer according to the Agreement, including the Report and as further specified in the Main Agreement. The purpose of the Calculation Tool is to provide data regarding the climate footprint of a Product and to provide an overview of the different data relevant for the climate footprint.

”Customer” means the company specified in the Main Agreement as a customer or the person who otherwise agrees with the Supplier to use the Calculation Tool.

”Data” means any data that is provided to the Supplier by or on behalf of the Customer through the use of the Calculation Tool. Data mainly consists of information about the Product that the Customer wishes to review in the Calculation Tool, e.g. about how the Product has been manufactured and which transportation has been used.

”Documentation” any instruction or other documentation that the Supplier provides to the Customer at any time.

“DPA” means the data processing agreement concluded between the parties.

“Label” means a logo where an index is included. The Label can be used for external communication purposes.

“Main Agreement” means the contract between the Customer and the Supplier that includes Customer details and specific terms in relation to the Customer’s purchase of or agreement to use the Calculation Tool. The Main Agreement could be constituted by a contract or other document signed by the Customer, an offer accepted by the Customer, an e-mail.

“Report” means a report with a calculation of the climate footprint for each Product.

“Product” or “Products” means the product or products which the Customer has provided information about and for which the climate footprint shall be calculated.

“Supplier” means the company providing the Calculation Tool which the Customer has concluded the Agreement with.