1.1 This customer agreement (the ”Agreement”) applies between Boneprox AB, corp. id. No. 556945-1882, Kungsportsavenyen 21, 411 36 Göteborg, (the ”Supplier”) and the Customer who wishes to use the digital platform Konekta (the “Platform”) and the related services that the Customer can access via the Platform. By signing a subscription, the Customer agrees to this Agreement. If the Customer does not agree to this Agreement, the Customer is not entitled to use the Platform and the related services.
1.2 The Supplier and the Customer are hereinafter referred to below individually as ”Party” and jointly as the ”Parties”.
1.3 The Parties’ Agreement consists of this main document, the appendices referred to in the main document and the Supplier’s most recent updated version of the Service Descriptions (as defined below).
2 DESCRIPTION OF THE PLATFORM AND ASSOCIATED SERVICES
2.1 The Supplier provides via the Platform functionality, which provides the Customer with access to a range of consulting services within various areas of orthodontics, e.g. the possibility to send referral consultations to the Supplier’s affiliated specialists, the image analysis tool Boneprox and other consultation support (the “Associated Service(s)”). The Platform and the Associated Services are collectively referred to as the Services in this Agreement. More information and a more detailed description of the Services can be found in the, at any given time, applicable service descriptions, which the Customer has access to via the Supplier’s website boneprox.se (“Service description(s)”). The Associated Services are provided in accordance with the terms of each Associated Service.
2.2 Via the Platform, the Supplier provides among other things the technical solution to enable and mediate contact between the Customer and the specialists engaged by the Customer in its healthcare business. The service in question (an Associated Service) is provided by the engaged specialist. The Supplier is thus not a care provider as defined in the Health and Medical Services Act and has e.g. no obligation to keep patient records. For clarification, it is also stated that the specialists engaged by the Customer via the Platform are responsible for their service in accordance with the terms and conditions applied by the specialists.
3 PROVISION OF THE PLATFORM
3.1 The Supplier shall, from and including the day when the subscription to the Platform is signed, provide the Platform in accordance with this Agreement as updated from time to time.
3.2 The Supplier’s objective is to deliver the Platform with high availability and a good service level. Current service levels are specified in the applicable Service Descriptions.
4 UPDATES AND MAINTENANCE OF THE SERVICES
4.1 The Supplier works on an ongoing basis to further develop, update and improve the Platform and reserves the right to make changes in the Platform without the Customer’s approval that are part of the Supplier’s development and improvement work by commissioning updates. In the event of major changes, it is the Supplier’s intention to notify the Customer in due time prior to implementation.
4.2 During the term of the Agreement, the Customer may use the Supplier’s general further development and updates of the Platform. The updates shall take place at a time chosen by the Supplier, and shall, to the greatest extent possible, take place at times that cause the least possible disruption to the Customer’s business.
5 THE CUSTOMER’S USE OF THE PLATFORM
5.1 Subscriptions for the Platform are subscribed per Customer/per clinic. If the Customer conducts business in several clinics, separate subscriptions shall be signed for each clinic. Further instructions on how the Customer log in and use the Platform and the Associated Services can be found on the Supplier’s website boneprox.se.
5.2 During the term of the Agreement, the Supplier grants a non-exclusive, non-assignable and non-transferable right for the Customer to use the Platform in its business through its Authorised Users.
5.3 The Platform may be used by the persons at the Customer who the Customer has designated as users of the Platform (”Authorised Users”). The Customer is responsible for stating who shall be Authorised Users of the Platform on behalf of the Customer. The Customer is responsible for all use of the Platform and the Associated Services that takes place on behalf of the Customer, by Authorised Users and others.
5.4 The Customer shall be responsible for ensuring that the Customer has the equipment and software required to use the Services and for ensuring that such equipment and software do not contain faults or defects. Current requirements for the Customer’s IT environment are stated in the, at any given time, applicable Service Descriptions.
5.5 The Customer may not copy, modify, distribute or otherwise interfere with the software or other components included in the Services. The Customer may also not permit anyone other than the Authorised Users to use the Services.
6 CUSTOMER DATA ETC.
6.1 The Customer is – in relation to the Supplier – solely responsible for all data and information that the Customer publishes, distributes and uses in the Services, regardless if it is data that belongs to the Customer or a third party (the ”Customer Data”). The Customer shall, among other things, ensure that the Customer has the right to use the Customer Data in the Services, that the Customer’s use of the Customer Data in the Services is lawful and does not constitute infringement in the rights of others and that the Customer Data does not contain viruses or is otherwise harmful for the Supplier or the Services. The Supplier has the right to use the Customer Data for the Supplier’s purposes in accordance with the provisions in clause 6.3.
6.2 As a general rule, the Supplier shall not save the Customer Data in the Platform for a prolonged time. The Platform does not constitute a system for journal management. The Customer is therewith responsible for saving the data that the Customer makes available in the Platform or when using an Associated Service and that the Customer receives via the Platform in a location other than in the Platform.
6.3 The Customer Data includes, among other things, dental x-ray images taken at the Customer’s and which the Customer sends to affiliated specialists and the image analysis tool Boneprox via the Platform. The Supplier intends to anonymise such dental x-ray images in order to use them for the Supplier’s product development, e.g. AI. Anonymisation of dental x-ray images requires the patient’s consent. The Customer therefore undertakes to obtain the patient’s possible consent for his/her dental x-ray images to be anonymised by the Supplier. In the event the patient does not consent to the Supplier’s anonymisation, this shall be clearly stated by the Customer when uploading of the patient’s dental x-ray images in the Platform or relevant Associated Service.
6.4 The Supplier has the right to collect, process and analyse data created and processed during the Customer’s use of the Services that the Supplier has access to (”Generated Data”) for unlimited use by the Supplier for the Supplier’s purposes at any time, such as for statistics, analysis of the Services and its use, for lease or sale to third parties and for marketing. Generated Data constitutes the Supplier’s property.
7 DEFECTS IN THE PLATFORM
7.1 The Supplier undertakes to remedy Defects in the Platform free of charge and without delay. ”Defects” refer to technical errors with the consequence that the Customer is unable to use the Platform in accordance with this Agreement and/or relevant Service Descriptions. It shall be emphasized that the Supplier is not responsible for the Customer’s medical assessments directly or indirectly based on functionality in the Platform or the Associated Services. The Platform and the image analysis tool Boneprox solely constitute a technical decision support in the Customer’s health and medical care business.
7.2 The Customer shall, without delay, notify the Supplier of a Defect in the Platform and in connection therewith state how the Defect has manifested itself. If the Customer has been unable to use the Services in essential respects due to a Defect in the Platform, the Customer shall have the right to receive a reasonable price reduction on the subscription fee for the Platform from the period from the notification of the Defect and for the duration the Defect exists. Limited access to the Services due to updates or development work of the Platform shall not constitute such circumstance that generates price reduction.
7.3 The Supplier’s liability according to clauses 7.1 and 7.2 does not include:
a) Defects that are of no significance for the intended use of the Services and do not entail anything other than minor inconvenience to the Customer;
b) Defects caused by the Customer’s use of the Services with equipment or accessories other than those prescribed by the Supplier in a manner that affects its function, or through incorrect use or defective system conditions;
c) Defects caused by the Customer’s changes or interventions in the Services that have not taken place in accordance with the Supplier’s instructions; and/or
d) Defects caused by the Customer’s use of the Services in any way other than what is stipulated in this Agreement, or by negligence on the part of the Customer or third parties or by other circumstances beyond the Supplier’s control.
7.4 The remedies set out in this Section 7 shall be the exclusive remedies available to the Customer in case of Defects.
8 PRICES FOR THE SERVICES
8.1 Prices for subscription of the Platform and prices for the Associated Services are stated in the Supplier’s current applicable price list. All prices are stated excluding VAT.
8.2 If not otherwise agreed, all subscription fees shall be invoiced monthly in advance with payment terms of 20 days. Fees for Associated Services shall be invoiced in arrears following the use of the relevant service.
8.3 In the event of delayed payment, default interest shall be charged according to section 6 of the Interest Act (1975:635).
9 INTELLECTUAL PROPERTY RIGHTS
9.1 All rights, including but not limited to intellectual property rights attributable to the Platform and the image analysis tool Boneprox, as well as technical solutions, software and other materials included therein belong to the Supplier or its rights holders or subcontractors and are in certain cases protected according to law.
9.2 What is set forth in clause 9.1 shall also apply for customer-specific development of both the Platform and the functionality adjoining the Platform.
9.3 All rights to the Customer Data belong to the Customer (or third party on the Customer’s side). The Supplier’s right to use the Customer Data follows from the Services and is regulated in this Agreement. Upon termination of the Agreement, the Supplier shall return or delete the Customer Data, however, with exception of such data that the Supplier has the right to use for the purpose of developing its own products. To avoid misunderstandings, the Supplier has no obligation to take any action regarding Generated Data or anonymised personal data as such data constitutes the Supplier’s property.
10 RESTRICTION OF ACCESS TO THE SERVICES
The Supplier has the right to monitor the Customer’s use of the Services in order to ensure that use takes place in accordance with the Agreement. If the Supplier suspects that any part of the Services is used in violation of the Agreement or for other reasons there is a risk of damage in the Customer’s continued use of the Platform or the Associated Service, the Supplier has the right to take such measures as are necessary in view of the circumstances, such as temporarily suspending or limiting the Customer’s access to the Services. The Supplier shall notify the Customer as soon as possible if such measures are taken.
This Agreement is valid until further notice from the time the Customer subscribes to the Platform with a mutual right to terminate the Agreement at the end of the current calendar month.
12 PERSONAL DATA
The Supplier’s processing of personal data on behalf of the Customer in accordance with this Agreement shall be regulated in the data processor agreement between the Parties.
13.1 The Parties undertake not to, during the term of the Agreement and thereafter without the other Party’s previous written consent, disclose or reveal information (whether it is in oral, written, electronic or other form) about the other Party’s activities that may be considered a business or trade secret or otherwise use such information for any purpose other than for the Parties’ fulfilment of their undertakings in accordance with this Agreement. Information that a Party has stated to be confidential shall always be considered a business or trade secret.
13.2 The confidentiality undertaking shall not apply to information that a Party can demonstrate has become known to them in another way than through this Agreement or which is general knowledge. The confidentiality undertaking shall also not apply when a Party is obligated by law, constitution, stock exchange regulation or decision by authority to disclose information.
The Supplier may use the Customer’s trademark in the Supplier’s and its business partners’ marketing of the Services with the Customer’s written consent.
15 LIMITATION OF LIABILITY
15.1 The Supplier’s maximum total liability for all claims under or related to this Agreement and the Services shall, per calendar year, be limited to 100 % of the total amount actually paid by the Customer to the Supplier in accordance with this Agreement during the 12-month period immediately preceding the period for the event that the claim is based on. If the event that the claim is based on occurs during the first 12-month period, the amount on which the percentage is calculated shall correspond to an estimated amount for the current period.
15.2 The Supplier shall not be liable under any circumstances for indirect damage, including but not limited to loss of profit, lost production or lost or damaged goodwill.
15.3 In cases where the Customer is entitled to compensation in accordance with provisions on penalties or reduction of subscription fee in the event of the Supplier’s non-fulfilment of agreed service levels (SLA) in accordance with the current applicable Service Description, such reduction shall constitute full compensation for the current fault.
16 FORCE MAJEURE
16.1 A Party is discharged from liability for failure to fulfil obligations according to this Agreement if the failure is due to circumstances beyond the Party’s control. Such discharging circumstance shall be considered war or war-like actions, government restrictions, fire, strike, lockout, prohibitions, pandemics or other similar event, provided that the affected Party immediately notifies the other Party of the event (”Force Majeure”).
16.2 If the fulfilment of the Agreement in material respects is obstructed for a period of more than three months due to Force Majeure, the other Party shall have the right to terminate this Agreement in writing with immediate effect. Neither Party shall be liable to the other Party for termination of the Agreement based on Force Majeure.
17 AMENDMENTS AND CHANGES
17.1 The Supplier shall have the right on an ongoing basis to make changes in the Service Descriptions. Updated Service Descriptions shall be published on boneprox.se. In the event of significant amendments, the Supplier undertakes to follow the change process in clauses 17.2 – 17.4 below.
17.2 The Supplier shall have the right to change other terms of the Agreement, including applicable prices, subject to thirty (30) calendar days’ notice. The Supplier shall notify the Customer in writing of its intention to change the terms by e-mail to the Customer’s specified contact person. The notification shall contain a clear report of what the changes are.
17.3 If the Customer does not accept the new terms of the Agreement, the Customer shall have the right to terminate the Agreement by notification within the 30-days period in 17.2 until it expires at the end of the current calendar month. During the notice period, the terms of the Agreement shall apply without the changes notified by the Supplier in accordance with this clause.
17.4 If the Customer does not give notice of termination, the updated terms of the Agreement shall become applicable after the notice period in clause 17.3 has expired.
Should any of the provisions in the Agreement or any part thereof be found invalid, this shall not mean that the Agreement in its entirety is invalid but insofar as the invalidity materially affects the Parties’ exchange of or performance in accordance with the Agreement, reasonable adjustment in the Agreement shall take place.
19.1 A Party may neither transfer nor grant its rights or obligations in accordance with this Agreement without the other Party’s written consent.
19.2 The Supplier has, however, the right to transfer the Agreement in its entirety to such legal entity that directly or indirectly controls or is controlled either by the Supplier or by company that controls the Supplier (group company). The purpose with this is to be able to change the company structure without the need of signing agreements or terms in a flexible manner.
20 GOVERNING LAW AND DISPUTES
20.1 This Agreement shall be governed by the substantive law of Sweden.
20.2 Disputes in connection with this agreement shall be finally decided by arbitration in accordance with the Stockholm Chamber of Commerce’s Arbitration Institute’s Rules for Expedited Arbitration. The seat of the arbitration proceedings shall be Stockholm and the language shall be Swedish.
20.3 The Parties undertake to, without limitation of time, not disclose the existence or content of arbitration in connection with this Agreement or information regarding negotiations, arbitration proceedings or mediation in connection therewith. What is stipulated in this clause shall not apply unless otherwise follows of law, other statutes, government orders, stock exchange rules or good practice in the stock market or is otherwise required for the enforcement of a judgement